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 6 
 
 bUJ 
 
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 bLO 
 
 COMPANY PRECEDENTS 
 
 THIRD EDITION. 
 
 ^^"^^d/l
 
 BY THE SAME AUTHOR. 
 
 Fourth Edition, l2mo. Price 2s. Gd., cluth. 
 THE 
 
 SHAEEHOLDERS' & DIRECTORS' 
 COMPANION. 
 
 A Manual of Every-clay Law and Practice for Promoters, Shareliolders, 
 Directors, Secretaries, Creditors, and Solicitors of Companies, under 
 the Companies Acts, 1802 to 1880. 
 
 ALSO, BY THE SAME AUTHOR, 
 
 FiftJb Edition. Price 2.s\, sewed. 
 
 PRIVATE COMPANIES, 
 
 THEIR FORMATION AND ADVANTAGES; 
 
 Or, How to Convert your Business into a Private Company, and the 
 Benefit of so doing. 
 
 COMPANY PRECEDENTS. 
 
 OPINIONS OF THE PRESS ON THE SECOND EDITION. 
 
 " The vast amount of the capital cinbaiked in the uudertakin,!,'s of Companies is a 
 iiuurantee tliat the second edition of Mr. I'ahnei-'s ' Company Precedents ' will not lack 
 attention from shareholders, directors, and counsel. The additions that have been 
 made to the present edition are not of secondary interest ; they comprise such essentials 
 as directions for the composition of prospectuses and for practice in winding-up and in 
 arran|,'ements with creditors .... We can conlidently recommend Mr. I'almer's 
 book to the large class whom it concerns." — T/ie Times. 
 
 " The first edition of this book appeared in 1877, and in our review of it we ' ventured 
 to predict that j\[r. Palmer's notes would be found of great practical utility in guiding 
 opinions on many complicated ([uestions of law and practice.' That this forecast lias 
 been fulfilled may be fairly asserted, not only from the appearance, thus early, of a 
 second edition, but also from the reputation which ]\[r. Palmer's work has aci^uired 
 . . . . In our review of the first edition we entered so fully into the scope and 
 merits of ilr. Palmer's work, that it is unnecessary for us again to call attention 
 thereto. In fact ' Palmer's Company Precedents ' is too well known and has become 
 too much of a standard work to require such treatment. To those who arc acquainted 
 with the first edition, we recommend the second as a great imjirovcment : to those who 
 are not, we recommend an early ac(|uaintance therewith, if, either as lawyers or 
 business men, they are in any way cimnected with Companies." — Laiv Journal. 
 
 " The favourable opinion wliich we exj)resscd of this work on its first issue has been 
 justified by the speedy demand for a second edition. AVell designed and ably executed, 
 it has proved of much practical utility to the draftsman. The present edition lias been 
 thoroughly revised .... Speaking from practical experience in the use of the 
 volume, we can confidently recommend it to the Profession." — Laic 2Iagc(zinc. 
 
 " Use of the first edition of Mr. Palmer's book in practice enables us to speak with 
 some confidence of the excellence of its design and of the execution being on the whole 
 careful and satisfactory. The present edition appears in a considerably enlarged form 
 and includes a large number of new forms . . . Both as regards inemoraiula and 
 articles, we are glad to observe increased attention paid to the ' private ' Company, 
 which now occupies so much of the attention of the Company draftsman . . . The 
 orders and jjrecedents in winding-up liave been enormously increased in number, and 
 are now a most complete collection, covering the proceedings at every stage. It will 
 be seen that the scope of the work has been largely increased."— /So/tciVo;'*' Journal. 
 
 STEVENS k SONS, 110, CHANCERY L.\NE, LONDON, W.C.
 
 COMPANY PEECEDENTS 
 
 FOR USE IN RELATION TO 
 
 COMPANIES 
 
 SUBJECT TO THE COMPANIES ACTS 18G2 TO 1883. 
 
 ARRANGED AS FOLLOWS:- 
 
 AGREEMENTS. 
 
 MEMORANDA and 
 
 ARTICLES OF ASSOCIATION. 
 
 RESOLUTIONS. 
 
 NOTICES. 
 
 CERTIFICATES. 
 
 PROSPECTUSES. 
 
 DEBENTURES. 
 
 POLICIES. 
 
 PRIVATE COMPANIES. 
 
 WRITS. 
 
 PETITIONS. 
 
 JUDGMENTS AND ORDERS. 
 
 WINDING-UP. 
 
 RECONSTRUCTION. 
 
 AMALGAMATION. 
 
 ARRANGEMENTS. 
 
 SPECIAL ACTS. 
 
 (•alitb OTopiou.? Hotcs. 
 
 FRANCIS BEAUFORT PALMER, 
 
 OF THE IXXCR TEMPT.E, ESQ., BARRISTER- AT-LAW. 
 
 THIRD EDITION. 
 
 LONDON : 
 STEVENS AND SONS, 119, CHANCERY LANE, 
 
 "^nia ^nblis^evs anb §ool;sdkrs. 
 1884.
 
 1.0XDO-V : 
 
 BRADBCRY, AGNEW, & CO., PRI.N'TIiP.S, WIUTEFRIAR* 

 
 PREFACE TO THIED EDITION. 
 
 The object of this work is to bring together a body of 
 Forms and Precedents for use in relation to the forma- 
 tion, working, and winding-up of companies under the 
 Companies Acts, 1862 to 1883. 
 
 A considerable amount of space is devoted to notes 
 explaining the Forms and Precedents, and illustrating 
 them by references to the decided cases and to the 
 statutes. 
 
 In this edition the following additional divisions have 
 been included, viz. — Policies, Private Companies, 
 Writs. jMoreover, a great many new forms have been 
 inserted in the other divisions, and the notes throughout 
 the work have been extended and revised. By the adop- 
 tion of a few abbreviations— c.f/., " co " for "company," 
 and " sd " for " said," much space has been gained. 
 
 Considering that many hundred millions'"' are now 
 
 * It appears from the ]\irliamentary Paper, Session 1883, c. 3542, 
 that the paid-up capital of .(^inpanics believed to be carrying on business 
 in February, 1883, was upwards of ,£410,000,000 ; and, besides this, it is 
 probable that £100,000,000 is invested in debentures. 
 
 749177
 
 Ti PREFACE. 
 
 invested in the sliares and securities of companies subject 
 to tlie above Acts, it is obvious that the matters dealt 
 with in the following pages concern the interest of an 
 important section of the community. 
 
 The author trusts that the work will be found practi- 
 cally useful to members of both branches of the Pro- 
 fession. To render it such has l^een his aim throughout. 
 
 In conclusion, the author begs to offer his cordial 
 thanks to those who have been so kind as to assist 
 him in the present edition by useful suggestions, by 
 lending him orders and other forms, and by perusing 
 and correcting some of the proof sheets. 
 
 5, New Square, LI^x•OI;N's Inn, 
 A2)ril, 1884.
 
 TABLE OF CONTENTS. 
 
 AGREEMENTS. 
 Form PACK 
 
 1. Agreement with agent for intended company for sale of business of 
 
 mechanical engineer, including leaseholds and chattels. Con- 
 sideration : Cash and shares. Vendor not to carry on similar 
 business. Power to rescintl . , .... 7 
 
 2. Contract to file where paid-up shares issued without cojnpliance 
 
 with Section 25 of the Act of 1867 . . '. . . . 14 
 
 3. Agreement for sale of patents. Consideration : Cash and founders' 
 
 shares K; 
 
 4 — 9. Miscellaneous provisions for insertion in agreements . . . 17 
 
 10. Agreement for sale to intended company of tlie business of a waie- 
 
 houseman. Vendors in partnership. Consideration : Cash and 
 deferred shares. Vendors to covenant not to carry on .similar 
 business, and not to part with shares for a fixed period . . 24 
 
 11. Agreement for sale to company of foreign mines . . . . 28 
 
 12. Agreement by company adapting contract made on its behalf 
 
 before its incorporation ........ 3Q 
 
 13. Agreement by company adopting with modifications contract 
 
 made before its incorporation :i() 
 
 14. Agreement for sale of sliip to single ship company . . . 32 
 
 15. Agreement for sale of concession to promoter who is to form 
 
 company 3:> 
 
 16. Agreement 1 ly promoter to pay preliminary expenses in considera- 
 
 tion of part of tliL- vendors' shares .34 
 
 17. Agreement to pay preliminary expenses in consideration of com- 
 
 mission 3.") 
 
 18. Agreement by promoter t>> guarantee the placing of capital in 
 
 consideration of founder's shares . 3<i 
 
 19. Agreement as to issue of paid-up sliares pursuant to contiact not 
 
 filed 37 
 
 20. Agreement to issue paid-up shares in satisfaction of debt due by 
 
 company 37 
 
 21. Agreement to allot shares at a discount 38 
 
 22. Agreement for the issue of paid-up shares by way c>f bonus to 
 
 debenture holders 40 
 
 23. Agreement with trustees to guarantee dividends on .shares about 
 
 to be oftered for sale 41
 
 TABLE OF CONTENTS. 
 
 Form 
 
 24. Agreement for transfer of railway coiieef^sion and for constniclion 
 
 of railway . . . . . . . . . . . 
 
 25. Agreement for sale of colliery and other assets to company on 
 
 scheme of arrangement under the Bankruptcy Act . 
 
 26. Agreement for sale of hotel and other assets on a sclieme as ahov 
 
 27. Agreement to sell life assurance business ..... 
 
 28. Syndicate agreement for purcliase and re-sale of mines 
 
 29. Agreement for the appointment of a manager by a company . 
 
 30. Agreement for the appointment of a secretary by a company 
 
 31. Agreement ai")pointing electrical engineer .... 
 
 43 
 
 45 
 
 50 
 53 
 .■)() 
 57 
 58 
 59 
 
 MEMORANDA OF ASSOCIATION. 
 
 32. Of company limited by shares . 75 
 
 33. Of company limited by guarantee . . . . . . . 76 
 
 34. Of company limited by guarantee and registered without the 
 
 word " limited" ......... 77 
 
 35. Of unlimited cnmpany ......... 81 
 
 
 
 OBJECTS. 
 
 
 
 36- 
 
 -68. Miscellaneous clauses for insertion 
 
 in memoranda 
 
 81 
 
 69. 
 
 Life assurance and acci- 
 
 
 90. 
 
 Coffee taverns . . . 
 
 98 
 
 
 dent .... 
 
 89 
 
 91. 
 
 Public hall . 
 
 99 
 
 70. 
 
 Maiine insurance . . 
 
 90 
 
 92. 
 
 Race course 
 
 99 
 
 71. 
 
 IMutual ship insurance com- 
 
 
 93. 
 
 Co-o2)erative store . 
 
 99 
 
 
 pany .... 
 
 91 
 
 94. 
 
 Hotel company . 
 
 100 
 
 72. 
 
 Fire, accident, and guaran- 
 
 
 95. 
 
 Lilirary . . ' . 
 
 100 
 
 
 tee 
 
 91 
 
 96. 
 
 Scliool or college 
 
 100 
 
 73. 
 
 Guarantee company. 
 
 92 
 
 97. 
 
 Loan club 
 
 100 
 
 74. 
 
 Bank 
 
 92 
 
 98. 
 
 Building estate . 
 
 101 
 
 75. 
 
 Financial .... 
 
 92 
 
 99. 
 
 Industrial dwellings 
 
 101 
 
 76. 
 
 Public work contractors . 
 
 93 
 
 100. 
 
 Colonization and land 
 
 1(12 
 
 77. 
 
 Colonial loan agency and 
 
 
 101. 
 
 Mining . 
 
 102 
 
 
 investment . . . 
 
 94 
 
 102. 
 
 Coal and iron com]iany 
 
 103 
 
 78. 
 
 British and foreign invest- 
 
 
 103. 
 
 Ship o'miers 
 
 . 103 
 
 
 ments . . . . 
 
 95 
 
 104. 
 
 Single .steamship . 
 
 . 103 
 
 79. 
 
 Electric light . 
 
 9() 
 
 105. 
 
 American raih'oad 
 
 104 
 
 80. 
 
 Electric apparatus manu- 
 
 
 106. 
 
 Tramway 
 
 105 
 
 
 factures . . . . 
 
 96 
 
 107. 
 
 Gasworks company . 
 
 . 105 
 
 81. 
 
 Waterworks company 
 
 96 
 
 108. 
 
 Excliange 
 
 . 105 
 
 82. 
 
 Dock 
 
 97 
 
 109. 
 
 Club. 
 
 . 106 
 
 83. 
 
 Brewery .... 
 
 97 
 
 110. 
 
 Club-house 
 
 . 106 
 
 84. 
 
 ('otton spinners . . . 
 
 97 
 
 111. 
 
 Club (political) . 
 
 . 106 
 
 85. 
 
 Mechanical engineers 
 
 97 
 
 112. 
 
 Law society . 
 
 . 107 
 
 86 
 
 Patents . . 
 
 97 
 
 113. 
 
 Trade protection 
 
 . 108 
 
 87. 
 
 Hide, .skin, and fat . 
 
 98 
 
 114. 
 
 Chamber of conmierce 
 
 . 108 
 
 88. 
 
 Stationers, &c. . . . 
 
 98 
 
 115. 
 
 Another 
 
 . 109 
 
 89 
 
 Newspaper proprietors . 
 
 98 
 
 116. 
 
 Builders' Institute . 
 
 . 109
 
 TABLE OF CONTENTS. 
 
 Form 
 
 117. Articles 
 
 ARTICLES OF ASSOCIATION. 
 
 ;iciation (general form) 
 
 1. Preliminary . . .114 
 
 •2. Ceititicates . . . . 117 
 :i. Calls . . . .118 
 
 4. Forfeiture and lien . . 121 
 •"). Transfer and transmission 
 
 (jf shares . . . 123 
 <i. Share warrants . . . 128 
 
 7. Conversion of shares into 
 
 stock . . . .128 
 
 8. Increase and reducti(jn of 
 
 capital . . . . 129 
 y. Borro-wing pi Avers . . 1,31 
 
 10. General meeting . . . 132 
 
 11. Proceedings at general 
 
 meetings . . . 13.5 
 
 12. Votes of memliers . . 137 
 
 13. Directors . 
 
 14. Rotation of dii'ectors . 
 
 15. Managing director . 
 
 16. Proceedings of directoi> 
 
 17. Minutes . 
 
 18. Powers oi directors 
 
 19. Solicitors . 
 
 20. Secretary 
 
 21. The seal . 
 
 22. Dividends . 
 
 23. Accounts . 
 
 24. Audit . 
 
 25. Notices 
 
 26. Arbitration . 
 
 27. Winding up 
 
 28. Indemnity . 
 
 118. Ai'ticles of association adopting Table A. . 
 
 119. Aiticles of association of law society 
 
 120 — 143. Miscellaneous clauses for insertion in articles 
 
 lAGK 
 
 114 
 
 141 
 
 14.-) 
 
 147 
 
 148 
 
 l.")0 
 
 151 
 
 ir)(; 
 
 156 
 
 150 
 
 157- 
 
 160 
 
 161 
 
 163 
 
 165 
 
 165' 
 
 167 
 
 172 
 
 174 
 
 ISii 
 
 RESOLUTIONS. 
 
 144. Alteration of articles . . . 
 
 145. New regulations .... 
 
 146. Modification of Table A. . . . 
 
 147. Increase of capital .... 
 
 148. Preference shares ..... 
 
 149. Another form 
 
 150. Variation 
 
 151. A. and B. shares .... 
 162. Guaranteed preference shares 
 
 153. C-onversion of preference into ordinary 
 
 154. Conversion of shares into stock 
 
 155. Another ...... 
 
 156. Consolidation of shares .... 
 
 157. Subdivision 
 
 158. Another 
 
 159. Subdivision into tw(j classes 
 
 160. Reduction of liability .... 
 
 161. Return of capital .... 
 
 162. Retiun of capital liable to recall . 
 
 163. Cancelling lost capital 
 
 164. Confirming past returns 
 
 165. Cancellation of unissued shares . 
 
 166. Cancellation of issued shares 
 166a. Cancellation of purchased shares 
 
 167. Paying oft' capital out of profits 
 
 168. Change of name .... 
 
 169. Resiilution as to issue of debentures 
 
 193 
 194 
 194 
 194 
 196 
 196 
 196 
 196 
 197 
 197 
 198 
 198 
 198 
 198 
 199 
 199 
 199 
 199 
 199 
 200 
 200 
 201 
 201 
 201 
 201 
 201 
 201
 
 TABLE OF CONTENTS. 
 
 Form 
 
 170. Creation of debeutuiv stock 
 
 171. Debenture stock 
 
 172. Resolution decUiring the conditions on which sluire warrants 
 
 will be issued ........ 
 
 173. Registration of existing company 
 
 174. Application for registration with limited liability 
 
 175. Application for registration as an unlimited company . 
 
 176. Statement with a view to 
 
 177. Statutory declaration on registration 
 
 178. Resolution to register bank 
 
 I'AGK 
 
 202 
 
 ^02 
 
 202 
 206 
 206 
 206 
 207 
 207 
 20? 
 
 NOTICES. 
 
 179. 
 180. 
 181. 
 182. 
 183. 
 184. 
 185. 
 186. 
 
 187. 
 188. 
 
 189. 
 
 190 
 191. 
 192, 
 193, 
 194. 
 195, 
 196 
 197. 
 198, 
 199 
 
 shares 
 
 Notice of allotment o 
 
 Nc)tice of call 
 
 Another ......... 
 
 Notice before forfeiture for non-payment of call 
 Notice I if ordinary general meeting 
 Notice of extraordinary general meeting 
 
 Another form . 
 
 Notice of extraordinary general meeting for passing 
 
 resolution . 
 
 Notice of meeting to confirm special resolution 
 
 Notice of ordinary and extraordinary general meetings to b 
 
 on same day ........ 
 
 Notice of extraordinary general meeti)igs for passing tM"o s 
 
 resolutions in three meetings 
 Subsecjuent notice ..... 
 Requisition of members for a general nieetin 
 Notices Ijy memliers calling meeting 
 Notice of situation of office . 
 Notice of increase of capital 
 Copy of special lesi ilutions 
 N(jtice of dividend and warrant . 
 
 Another 
 
 Another 
 
 Consent to new company using name of old 
 
 pecia 
 
 lield 
 pecial 
 
 210 
 211 
 211 
 211 
 212 
 212 
 212 
 
 212 
 213 
 
 214 
 
 214 
 214 
 215 
 215 
 216 
 217 
 217 
 217 
 218 
 218 
 219 
 
 CERTIFICATES. 
 
 200. Ordinary certificate 
 
 201. Certificate of preference shares 
 
 202. Certificate of stock 
 
 203. An(jtlier form of certificate of preference shares 
 
 204. Form of share warrant .... 
 
 205. Coupon to share warrant .... 
 
 206. Voucher for fresh coupons 
 
 206a. Certificate of incoq)oration .... 
 
 207. Certificate on registration under Part Yll. 
 
 225 
 225 
 226 
 226 
 226 
 227 
 227 
 227 
 227
 
 TABLE OF CONTENTS. 
 
 Form 
 
 208. Skeleton i)rospectus 
 
 209. Ajjplication fur shares 
 
 210. Bankers' receipt . 
 
 PROSPECTUSES, 
 
 I'AGK 
 
 245 
 24(; 
 247 
 
 DEBENTURES. 
 
 211. Ueljcntures to bearer with provisions for registration 
 212. — 216. Miscellaneoiis clauses . 
 
 217. Debenture to bearer. Drawings 
 
 218. Debentures to order 
 
 219. Registered debenture . 
 
 220. Perpetual debenture 
 
 221. Profit or income debenture 
 
 222. Prospectus of issue of de])entures . 
 
 223. Provisional certificate of debentures 
 
 224. Prospectus of debenture stock 
 
 225. Debenture stock certificate 
 
 226. Conditions as to the issue of debenture stock 
 
 227. Trust deed for securing mortgage debentures 
 
 264 
 2(W 
 270 
 271 
 272 
 273 
 275 
 27G 
 277 
 278 
 279 
 28(» 
 2i^:i 
 
 POLICIES. 
 
 228. Skeleton of life policy . 
 
 229. Ordinary : own life . . . . 
 
 230. Own life for term of years 
 
 231. Own life premium ior term of years . 
 
 232. Life of another .... 
 
 233. Endowment : own life 
 
 234. Endowment : life of another 
 
 235. At death of survivor .... 
 
 236. Joint lives 
 
 237. Death of B. provided C. then living . 
 
 238. Wife and children 
 
 239. Policy of unlimited ctimpany 
 
 240. Clause where several branches 
 
 241. Conditions of life assurance 
 
 242. Eire insurance policy 
 
 243. Accident policy .... 
 
 244. Conditions of accident policy 
 
 245. Railway accident policy 
 
 246. Employer's liability policy . 
 
 247. Live stock insurance jwlicy 
 
 248. Horse insurauGe policy . 
 
 249. Transit jjolicy ..... 
 
 250. Damage by horses and vehicles policy 
 
 251. Boiler policy ..... 
 
 252. Plate-glass policy .... 
 
 290 
 297 
 297 
 298 
 298 
 298 
 298 
 298 
 298 
 298 
 298 
 300 
 301 
 301 
 309 
 313 
 314 
 317 
 317 
 .320 
 
 323 
 324 
 325
 
 xii TABLE OF CONTENTS. 
 
 Form PACK 
 
 253. Hail policy 327 
 
 254. ' Inarantee of honesty 328 
 
 255. Policy on .ship 330 
 
 256. Policy (m cargo 331 
 
 PRIVATE COMPANIES. 
 
 257. 
 
 Pvcliiiiiuary agreement ..... 
 
 . 338 
 
 258. 
 
 Pestrictioii on i.ssiie of shares .... 
 
 . . 340 
 
 259. 
 
 Another form ....... 
 
 . 340 
 
 260. 
 
 Pestrirted right of transfer 
 
 . . 341 
 
 261. 
 
 Ifetirement of dismissed employe 
 
 . 344 
 
 262. 
 
 .Vnotlier ........ 
 
 . . 344 
 
 263. 
 
 Conijailsory retirement 
 
 . 344 
 
 264. 
 
 Another 
 
 . . 344 
 
 265. 
 
 Pestrictions on meniLers 
 
 . 347 
 
 266. 
 
 Retiring member not to compete .... 
 
 . . .347 
 
 267. 
 
 Directors ........ 
 
 . 347 
 
 268. 
 
 Permanent directors 
 
 . . 348 
 
 269. 
 
 Managing director 
 
 . 348 
 
 270. 
 
 Firm appointed managers 
 
 . . 349 
 
 271. 
 
 Power to appoint other directors 
 
 . 349 
 
 271a 
 
 . Power for meeting to appoint .... 
 
 . . 349 
 
 272. 
 
 Remuneration of directors ..... 
 
 . 350 
 
 273. 
 
 Instruction of son . ...... 
 
 . . 350 
 
 274. 
 
 AV^hat time directors to give .... 
 
 . 350 
 
 275. 
 
 ( Continuance of directors in office .... 
 
 . . 350 
 
 276. 
 
 N'oting at directors' meetings .... 
 
 . 351 
 
 277. 
 
 Interest on unpaid shares ..... 
 
 . . ,351 
 
 278. 
 
 Ijalance sheet ....... 
 
 . 351 
 
 279. 
 
 Audit 
 
 . . .352 
 
 280 
 
 Deed of settlement 
 
 . 352 
 
 281. 
 
 Power foi' trustees of will to convert testatoi''s Ini 
 
 -iiness into a 
 
 
 company ........ 
 
 . . 358 
 
 WRITS. 
 
 282. Common lorni writ ..... 
 
 283. Rescission of contract to take shares 
 
 284. Rescission and damages where fraud . 
 
 285. Damages for fraud without rescission 
 
 286. Rescission of contract for sale of mine to company 
 
 287. Prihe to directors 
 
 288. Promoter's secret profit .... 
 
 289. I )el)enture foreclosure 
 
 I )cbenture trust deed .... 
 Ultra vires agreenn-nt ..... 
 resolution ..... 
 
 290. 
 291. 
 292. 
 293. 
 
 Dividend in ]ireju(lice of preference .shares 
 
 360 
 361 
 361 
 362 
 .362 
 363 
 363 
 364 
 364 
 364 
 364* 
 365
 
 TABLE OF CONTENTS. 
 
 Form 
 294. 
 295. 
 296. 
 297. 
 298. 
 
 Dividend out of capital 
 Recovery of dividends improperly paid 
 To enforce resolution of company 
 Exclusion of director .... 
 To restrain de facto directors from autiui;' 
 
 I'AO K 
 
 365 
 36.5 
 366 
 366 
 366 
 
 299 
 
 300 
 
 301. 
 
 302. 
 
 303. 
 
 304. 
 
 305. 
 
 306. 
 
 307. 
 
 308. 
 
 309. 
 
 310. 
 
 311. 
 
 312. 
 
 313. 
 
 314. 
 
 315. 
 
 316. 
 
 PETITIONS. 
 
 Petition to confirm reductinn of capital 
 ■ Petition to confirm reduction of capital under Acts of 1877 
 Order to reduce capital ... 
 Order to reduce by cancelling lost capital . 
 Interim order dispensing witli use of words *' reduced '' 
 Advertisement of order reducing capital . 
 Petition for transfer of life business .... 
 Winding-up petition of judgment creditor 
 
 executrix of policy-holder 
 
 ■ debenture-bolder . 
 
 simple contract creditor . 
 
 where prior petitioner settled 
 
 • by company unable to pay its del 
 
 Ijy fully paid-up shareholder 
 
 for sui^ervision order 
 
 to Lancaster Palatine Court 
 
 in Stannaries .... 
 
 P 
 
 Petition to star windiu 
 
 309 
 370 
 372 
 373 
 373 
 373 
 374 
 375 
 377 
 378 
 379 
 380 
 380 
 381 
 381 
 383 
 383 
 384 
 
 ORDERS. 
 
 317. 
 318. 
 319. 
 
 320. 
 321. 
 322. 
 323. 
 324. 
 
 325. 
 326. 
 327. 
 328. 
 329. 
 330. 
 
 331. 
 332. 
 333. 
 
 Contract to take shares set aside 
 
 Judgment setting aside sale of concession and orderiiig repay 
 ment 
 
 Sale of mines set aside . 
 
 Judgment against promoters to refund secret profit 
 
 Director ordered to pay value of shares received from promoters 
 
 Promoter and director ordered to refund profits 
 
 Liberty to take proceedings against directors to n'Co\x-r promo 
 tion money 
 
 Order not to proceed against promoters .... 
 
 Compromise of action against director ..... 
 
 Order restraining forfeiture of shares . .... 
 
 Judgment granting ijerjietual injunction against forfeiture . 
 
 Injunction to restrain exclusion of <lirector 
 
 Order restraining directors from holding meeting at improper 
 period .......... 
 
 Restraining director.^; from improperly rejecting votes 
 
 Amalgamation declared ultra vires and restrained . 
 
 Sale of assets declared ultra vires and restrained , - . 
 
 386 
 
 388 
 
 388 
 390 
 391 
 392 
 393 
 
 393 
 394 
 394 
 394 
 394 
 39.') 
 
 39.-. 
 39.-) 
 39(; 
 397
 
 xiv TABLE OF ('OXTENTS. 
 
 Form PAGE 
 
 334. Oitlcr le.straiiiiii-- issue of preference shares 397 
 
 335. Eights of jDi-eference stock hohlers declared .iiid infringenieiits 
 
 restrained .......... 397 
 
 336. Payment of dividend out of capital restrained . . . . 398 
 
 337. Payment of dividends out of capital 398 
 
 338. Order restraining comxmny from purchasing its own sliares . . 398 
 
 339. Directors ordered to make good breach of trust .... 398 
 
 340. Another . . . ' 399 
 
 341. Usual order to rectify • . • 400 
 
 342. Rectification where invalid forfeiture 401 
 
 343. Where c(jntruct not filed pursuant to s. 25 nf Act of 1867 . . 401 
 
 344. Another 402 
 
 345. Order restraining presentation of winding-up petitions . . 402 
 
 346. Order restraining bankruptcy proceedings against co. in France. 402 
 
 347. Order for plaiutift' company to give security 403 
 
 348. Another. Fund to be paid into a bank . . . . . 403 
 
 349. Declaratii)n. Accounts. Sale 403 
 
 350. Order for accounts and inquiries 404 
 
 351. Judgment where debentures void for non-registration, otticial 
 
 lie), appointed receiver without further security . . . 40.5 
 
 352. Declaration A and B debentures 40.'i 
 
 353. Liquidator to sell, liberty to debenture holder to bid . . . 406 
 
 354. Liberty to sue defendant on behalf ...... 407 
 
 355. Trust deed. Accounts 407 
 
 356. Advertisement for claims 407 
 
 357- Receiver and manager . 408 
 
 358. Receiver and manager after security given 409 
 
 359. Provisional liquidator to be receiver 409 
 
 360. Clerk of company to be receiver and manager without security . 410 
 
 361. Sale on motion 410 
 
 362. Sale in action and winding-up ....... 410 
 
 363. Approval of conditional contract for sale 411 
 
 364. Approval of contract for lease 411 
 
 365. Receiver to borrow 20001 412 
 
 366. Liberty to borrow from debenture holders . . . .412 
 
 367. Liberty to raise money to pay off prior incumbrances . . . 412 
 
 368. Liberty for receiver to appoint attorney 412 
 
 369. Liberty to appoint attorney to carry on business in Russia, &c. . 413 
 
 370. Liberty to send telegram 413 
 
 371. Liberty to surrender lease . . . . . . . .413 
 
 372. Meeting of debenture holders to be convened . . . . 413 
 
 373. Advertisement convening meeting of debenture holders . , 414 
 
 374. Another 414 
 
 375. Another 414 
 
 376. Certificate of amount due to debenture holders . . . . 41.5 
 
 377. Distribution of cash 415 
 
 378. Dividend to debenture holders 41,i 
 
 379. Another 41(5 
 
 380. Order to ])ay off debentures 416
 
 TABLE OF CONTENTS. 
 
 XV 
 
 Form 
 
 381. 
 382. 
 383. 
 384. 
 385. 
 386. 
 387. 
 388. 
 389. 
 390. 
 391. 
 392. 
 393. 
 394. 
 395. 
 396. 
 397. 
 398. 
 399. 
 400. 
 401. 
 402. 
 405. 
 406. 
 407. 
 408. 
 409, 
 
 AV I NDl NG-UP (COMPU LSORY). 
 
 PBEUMIXARY. 
 
 Foiiiial parts of ordinary suiumous 
 
 Formal parts of notice of motion 
 
 Formal parts of affidavit ..... 
 
 Advertisement of presentation of petition . 
 
 AfHdavit in .support of petition .... 
 
 Order extending time to file affidavit . 
 
 Affidavit of service of petition .... 
 
 Order for service ■where office closeil . 
 
 office demolished ..... 
 
 Summons for security for costs .... 
 < )rder giving liberty to amend .... 
 
 Another . 
 
 Order to stand over ...... 
 
 Order giving liberty to -withdraw .... 
 
 Order hy consent dismissing .... 
 
 Order where debt paid before hearing . 
 
 Another -where creditors oppose 
 
 Order dismissing petition with costs 
 
 Order dismissing where provisional liquidat<jr . 
 
 Order for revivor on application of petitioiier's execut 
 
 —404. "Winding-up order ..... 
 
 "\\'inding-up order on two petitions 
 Order alL »wing costs of second petition 
 Order transferring petition by consent . 
 Notice of motion for transfer .... 
 
 410. Eeft-rence to countv court .... 
 
 I'Aci': 
 417 
 418 
 418 
 419 
 420 
 420 
 420 
 421 
 421 
 421 
 421 
 422 
 422 
 422 
 423 
 423 
 423 
 424 
 424 
 424 
 424 
 42o 
 426 
 42(5 
 427 
 427 
 427 
 
 ]'nO VISIONAL LIQUID A Tuns. 
 
 411. Notice of motion or summons for the appointment of a provi- 
 
 sional licj[uidator ••....... 428 
 
 412. Order on .summons appointing provisional lirjuidatoi- . . 429 
 
 413. Order restricting powers ••...... 429 
 
 414. Liberty to carry on business ....... 429 
 
 415. Liberty for prow liq. to carry on business and advance monex- . 430 
 
 416. Provisi(jnal liquidator to carry on appeal ..... 430 
 
 417. Order directing provisional official lifjuidatois to leave a(C<mnt 
 
 and for taxation and payment of costs . .... 43() 
 
 418. Order discharging provisional liquidator . . . . .431 
 
 419. Order discharging provisional liquidator Avho has neither received 
 
 nor paid money 431 
 
 420. Order for payment to late prov. liq. of certified balance , . 431 
 
 MLSCELLAXEOUS. 
 
 421. Summons to proceed with winding-up 431 
 
 422. Certificate that copy order true . 432 
 
 423. Advertisement of winding-up order 432 
 
 424. Order for extending time for advertising windinf- up order . 432
 
 XVI 
 
 TABLE OF CONTENTS. 
 
 Al'I'OlNTMENT OF OFFICIAL LIQUIDATOR. 
 Form 
 
 425. Aiht'i'tisemeut of time fixed for appointing . 
 
 426. Altidavit of titness 
 
 427. Order appointing official lirpiidator 
 
 428. Appointment wliere security already given 
 
 429. Appointment where guarantee company are sureties 
 
 430. Advertisement of appointment .... 
 
 TACK 
 
 432 
 483 
 433 
 
 434 
 434 
 434 
 
 tiKCUniTY OF OFFICIAL LIQUID ATOU. 
 
 431. Summon.^ to settle security 434 
 
 432. ]>ond where guarantee company sureties 43") 
 
 433. Oi'der extending time for giving security 437 
 
 434. Cliief clerk's certificate of security given 437 
 
 435. Summons to reduce security 438 
 
 436. Order reducing security 438 
 
 437. Another 438 
 
 438. Order on retirement of sureties 438 
 
 439. Summons for liberty to put recognisance in suit . . . . 43i) 
 
 ACCOUNTS OF OFFICIAL LIQUID ATOU. 
 
 440. Summons to proceed on official lirpidator's account . 
 
 441. Form of account 
 
 442. Affidavit verifying account 
 
 443. < hief clerk's certificate 
 
 444. Another certificate 
 
 445, where no receipts 
 
 446. ^ 'ertificate on passing final account .... 
 
 447. Affidavit of no receipts or payments since last account 
 
 448. Summons to extend time to leave account 
 
 449. Summons to compel off. liq. to bring in his account 
 
 450. Older giN iiig liberty to executor of deceased li(p to pass account 
 
 451. Summons bv surety for liberty to attend passing of account 
 
 452. Taberty tn issm- an attachment against off. liq. . 
 
 43!) 
 43!) 
 
 440 
 441 
 441 
 441 
 441 
 442 
 442 
 442 
 442 
 443 
 443 
 
 nFMUXKRATIOX OF OFFICIAL LIQUIDATOR. 
 
 453. Summons by off. liq. for liberty to retain money on account of 
 
 remuneration . . . . . . . . . . 443 
 
 454. Affidavit of ofi'. li(|. as to remuneration 
 
 455. Affidavit by official liquidator's clerk . . . , 
 
 456. Affidavit ]>y official li(pudator in support . 
 
 457. Remuneration to be assessed and paid . . . , 
 
 458. Allowance on account of remuneration 
 
 459. Order for payment of official li(iuidator's remuneration 
 
 460. Removal of official lic^uidators 
 
 461. < )rder on resignation 
 
 445 
 446 
 44(5 
 446 
 
 447 
 447 
 447 
 447 
 
 DKLIVERY OF HOOKS. 
 
 462. Summons to compel delivery of company's books and papers . 448 
 
 463. Order agahist the company's solicitors 448
 
 TABLE OF CONTENTS. 
 
 xvu 
 
 CAniiYING OX THE IIUSINKSS. 
 Form 
 
 464. Order giving liberty to carry on business . 
 
 465. Order to carry on business and render monthly accounts 
 
 466. Liberty to open local banking account 
 
 467. Lilierty to carry on business 
 
 468. Another 
 
 PAGE 
 
 449 
 449 
 449 
 450 
 
 450 
 
 BORROWING. 
 
 469. Order giving official liquidator liberty to borrow 
 
 470. Another 
 
 471. Liberty to borrow for carrying on business . 
 
 472. Liberty to official liquidator to lend . 
 
 450 
 451 
 451 
 451 
 
 SALES OF PROPERTY. 
 
 473. Common order for sale 452 
 
 474. Order for sale 452 
 
 475. General liberty to sell 453 
 
 476. Order for inquiry and sale where incumbrances . . . 45.3 
 
 477. Order for sale subject to sjiecial conditions 453 
 
 478. Liberty to sell chattels 454 
 
 479. Liberty to sell ship 454 
 
 480. Ai>proval of conditional contract for sale 454 
 
 481. Approval of conveyances '454 
 
 482. Liberty for off. liq. to concur in sale ordered in action by deben- 
 
 ture holders, and direction that company's chattels to be put 
 
 up for sale at same time 454 
 
 483. Directions to official liquidator to concur in sale by trustees for 
 
 debenture holders 455 
 
 484. Liberty to assign last days of terms 455 
 
 485. Order giving liqs. liberty to tender for purchase of co.'s 
 
 property 455 
 
 MISCELLANEOUS AUTHORITIES TO OFFICIAL LIQUIDATORS. 
 
 486. Liberty to give up company's office and take another 
 
 487. Liberty to continue man<>ger 
 
 488. Liberty to appoint manager 
 
 489. Liberty to off. liqs. to employ secretary to prepare account; 
 
 490. Appointment of surveyor to distinguish fixtures from chattel 
 
 491. Another form 
 
 492. Lilierty to have inventory and valuation of chattels made 
 
 493. Liberty to sue debtors and sell stock in trade 
 
 494. General libertj'- to sue on bills of exchange 
 
 495. Liberty to pi'ove in bankruptcy 
 
 496. Liberty to bring action for rent 
 
 497. Liberty to defend 
 
 498. Order confirming contract to grant lease . 
 
 499. Liberty to execute power of attorney 
 
 500. Another form 
 
 501. Lilierty to employ agent in Peru . 
 
 502. Order giving liberty to refer to arbitration 
 
 503. Liberty to go abroad ..... 
 
 504. Liberty to give security for costs 
 
 456 
 456 
 456 
 456 
 456 
 457 
 457 
 457 
 457 
 457 
 457 
 458 
 458 
 458 
 458 
 459 
 459 
 460 
 460
 
 xviii TABLE OF CONTENTS. 
 
 Form PAGE 
 
 505. Liberty to return valutable deposited with bank for safe custody 460 
 
 506. Liberty to discount bill 460 
 
 507. Liberty to repay premiums paid by mistake 460 
 
 CONTRlnUTuniKS. 
 
 508. Summons to strike name otf list ...... 462 
 
 509. Summons to vary certificate 462 
 
 510. Another 462 
 
 51L Order to strike name off list 462 
 
 512. Order to place name in list ....... 462 
 
 513. Order to settle executors in list 462 
 
 514. Order on appeal reversing order appealed from .... 462 
 
 515. Order refusing application to vary certificate . .... 463 
 
 516. Order varying certificate ........ 463 
 
 517. Order giving time to file evidence 463 
 
 518. Another 463 
 
 519. Another 464 
 
 520. Liberty to employ detective ....... 464 
 
 521. Another 464 
 
 622. Call to full account 464 
 
 523. Order for payment of calls where co. unregistered . . . 465 
 
 524. Liberty to take proceedings in Ijankruptcy .... 465 
 
 525. Libei'ty to pay dividend to contributories ..... 465 
 
 526. Another 466 
 
 527. Liberty to divide assets in specie 466 
 
 ENFORCING PAYMENT OF DEBTS. 
 
 528. Summons to enforce payment of calls made before winding-up . 467 
 
 529. Order to pay calls made before winding up .... 467 
 
 CREDITORS. 
 
 530. Affidavit to prove debt due on bill of exchange . . . . 469 
 
 531. by partner proving debt due to firm .... 470 
 
 632. of secretary of a company proving debt due to his 
 
 company 470 
 
 533. by off. li(|. proving debt due to his company . .471 
 
 534. to prove deljt due on debenture 471 
 
 535. proving debt due to accountant 471 
 
 536. — proving debt due to director for fees . . . . 472 
 
 537. proving debt due to solicitor 472 
 
 538. — proving debt for goods sold and delivered . . . 472 
 
 539. to prove mortgage debt. Valuation of security . . 472 
 
 540. Order giving time to file evidence 473 
 
 541. Another 473 
 
 542. Order for Ijetter particulars of claim 473 
 
 543. Summons to admit claim 473 
 
 544. Order to admit 474 
 
 545. Another order to admit 474 
 
 546. Order to vary certificate of debts 474 
 
 547. Another 474 
 
 548. Order giving contriljutories liberty to move to vary certificates . 475
 
 TABLE OF CONTENTS. xix 
 
 Form PAGE 
 
 549. SuninKiiis for liljerty to prove after time expired . . . . 475 
 
 550. Order giving liberty to prove after time expired . . . 475 
 
 551. Summons for liberty to paj' dividend to creditors . . . . 475 
 
 552. Order giving liberty to i)ay dividend 476 
 
 553. Another 476 
 
 554. Another 476 
 
 555. 477 
 
 556. Liberty to pay dividend making reserve for dis])uted claims . 477 
 
 557. Affidavits by official liquidator as to debts incurred in the wind- 
 
 ing up 477 
 
 558. Liberty to official liquidator to pay rent 477 
 
 559. Liberty to pay rates 478 
 
 560. Liberty to pay costs, &c. 478 
 
 561. Order to pay crown debt 478 
 
 SECURED CREDITORS. 
 
 562. Declaration of I'ights of mortgage debenture holders and order 
 
 to pay 479 
 
 563. Declaration of rights in favour of debenture holders. Inquiries 481 
 
 564. Inquiry as to what securities given 482 
 
 565. Liberty to pay off mortgage out of proceeds of sale . . . 482 
 
 566. Order for payment of mortgagees ...... 482 
 
 567. Liberty to give possession of property to trustees for deljenture 
 
 holders 482 
 
 A TTEXDIXa PllOCEEDIXas. 
 
 568. Liberty to creditors to attend 
 
 569. Liberty to contributory to attend 
 
 570. Liberty to debenture holders to attend .... 
 
 571. Appointment of committee to attend 
 
 572. Remuneration of committee 
 
 573. Committee of contributories 
 
 574. Appointment of creditor's representative for limited purjiose 
 
 483 
 483 
 483 
 
 484 
 484 
 484 
 484 
 
 SERVICE. 
 
 575. General order for ser^^ce out of jurisdiction 485 
 
 576. Liberty to serve summons out of jurisdiction .... 485 
 
 577. Another 486 
 
 578. Liberty to serve out of jurisdiction 486 
 
 579. Liberty to serve creditors out of jurisdictinu with peremptory 
 
 notice to prove 486 
 
 580. Another 487 
 
 581. Order for substituted service of summons 488 
 
 582. Order for substituted service of petition 488 
 
 DILLS. 
 
 583. ^lemorandum as to bill of exchange 488 
 
 584. Memorandum of sanction to be indorsed on bill . . . . 489 
 
 I 2
 
 TABLE OF CONTENTS. 
 
 RESTRAINING AND STAYING ACTIONS AND PROCEEDINGS. 
 Form 
 
 585. Order restraining county court action 
 
 586. County court execution restrained . 
 
 587. Order restraining actions by reference to schedule 
 
 588. Order of judge of Q. B. Div. staying proceedings 
 
 589. Order restraining proceedings in foreign court 
 
 590. Order restraining issue of execution 
 
 591. Restraining sheriff from selling . 
 
 592. Restraining removal of goods .... 
 
 593. Restraining removal or sale of goods . 
 
 594. Restraining sale 
 
 595. Restraining ])ersons from parting -with monies 
 
 596. Restraining distress for rent .... 
 '597. Order restraining distress for rate 
 
 598. Another 
 
 599. Notice of motion to dissolve injimction 
 
 I'AG E 
 
 490 
 490 
 490 
 491 
 491 
 491 
 492 
 492 
 492 
 492 
 493 
 493 
 493 
 493 
 493 
 
 TRANSFER. 
 
 600. Order transferring actions 493 
 
 601. Order for transfer 494 
 
 602. Order setting aside judgment obtained in Com. Pleas Div. in 
 
 action subsequently transferred to Chancery Div. . . . 494 
 
 LIllERTY TO BRING ACTIONS, tOc. 
 
 603. Liberty to debenture holder to bring action . 
 
 604. Another 
 
 605. Specific performances. Administrations 
 
 606. Liberty to proceed with action by debenture holders 
 
 607. Liberty to proceed with action in C. P. Div. 
 
 608. Execution creditor given first charge . . . , 
 
 609. Liberty to proceed with arbitration 
 
 610. Liberty to distrain 
 
 611. Another 
 
 612. Another 
 
 495 
 495 
 495 
 495 
 495 
 496 
 496 
 496 
 497 
 497 
 
 DISCOVERY AND INSPECTION OF DOCUMENTS. 
 
 613. Summons for affidavit of documents and inspection 
 
 614. Order for affidavit and inspection .... 
 
 615. Another 
 
 616. Order against several respondents .... 
 
 617. Order for inspection under s. 156 . 
 
 618. Order for inspection 
 
 619. Order for inspection on voluntary winding-up 
 
 498 
 498 
 499 
 499 
 500 
 500 
 500 
 
 CROSS-EX A MINA TION. 
 
 620. Notice to pi'oduce deponent for cross-examination at hearing of 
 petition ........... 
 
 501 
 
 .S7 'EC I A h EX A MINERS. 
 
 621. Appointment on winding-up petition 
 
 622. to lake cross-examination of claimant . 
 
 501 
 502
 
 TABLE OP CONTENTS. xxi 
 
 Form PAGE 
 
 623. Appointment in general terms 
 
 624. on petition to remove liquidator 
 
 625. with provision as to interpreter 
 
 626. Order for attendance of witness 
 
 627. Notice to produce at hearing of petition . . . , 
 
 628. Notice to produce before special examiner .... 
 
 502 
 502 
 502 
 503 
 503 
 504 
 
 EXAMINATION UNDER Sec. 115. 
 
 629. Summons to attend for examination 
 
 630. Order giving liberty to summon 
 
 631. Another form providing for shorthand notes . 
 
 632. Another 
 
 633. Another 
 
 505 
 505 * 
 506 
 506 
 506 
 
 PROCEEDINGS UNDER Sec. 165. 
 
 634. Order for repayment of money improperly jiaid for preliminary 
 
 expenses 508 
 
 635. Order on directors to repay monies improperly retained to pay 
 
 qualifications 509 
 
 636. Order on directors as to half premiums which ought to have 
 
 been invested 509 
 
 637. Order declaring liability of directors to refund dividends paid 
 
 out of capital, with inquiries . 509 
 
 638. Order against directors after inquiry 510 
 
 639. Order on application by respondents for security . ... 510 
 
 COMPROMISES. 
 
 640. Affidavit of contrilnitory with a view to compromise . .511 
 
 641. Another 511 
 
 642. Summons to sanction agreement for compromise . . . 512 
 
 643. Affidavit of off. liq. as to proposed compromise . . . . 512 
 
 644. Order sanctit)uing agreement for compromise . . . .513 
 
 645. Order sanctioning compromise 513 
 
 646. Another 513 
 
 647. Liberty to oft", liq. to compromise action 513 
 
 648. Liberty to compromise with debtor 514 
 
 649. Compromise with mortgagee 514 
 
 650. Order giving liberty to compromise 514 
 
 651. Compromise 515 
 
 MEETING.''. 
 
 652. Memorandum of direction for meeting 515 
 
 OFFICIAL LIQUIDATOR'S COSTS. 
 
 653. Usual order to tax 516 
 
 654. Tax costs including costs of action 517 
 
 655. Order to tax including costs of appeal 517 
 
 656. Tax and pay 517 
 
 657. O o,er where change of solicitors 517
 
 xxii TABLE OF CONTENTS. 
 
 Form PAGE 
 
 658. Afl&davit as to costs received in respect of compromises . .518 
 
 659. Taxing Master's certificate 518 
 
 660. Another . 518 
 
 661. Summons for liberty to pay costs 518 
 
 662. Order giving liberty to pay costs 518 
 
 663. Another 519 
 
 664. Summons to tax costs, etc., including anticipated costs of dis- 
 
 solving CO 519 
 
 t 
 
 APPEALS. 
 
 665. Notice of appeal motion 519 
 
 666. Order on appeal discharging order 520 
 
 667. Order on appeal attirming order appealed from . . . . 521 
 
 668. Order refusing appeal 521 
 
 669. Order restraining advertisement pending appeal . . . . 521 
 
 670. Liberty to appeal 522 
 
 671. Order allowing liquidator's costs of appeal . . . . . 522 
 
 STAYING WINDING-UP. 
 
 672. Order staying winding up . . . . . . . . 522 
 
 UNCLAIMED DIVIDENDS. 
 
 673. Order to pay into court 523 
 
 674. Order to pay unclaimed dividends into court .... 523 
 
 DISSOLUTION. 
 
 675. Dissolution order 524 
 
 676. Another 525 
 
 677. Burn books 525 
 
 678. Dissolution where guarantee company are sureties . . . 525 
 
 679. Order for distribution of assets and dissolution . . . . 526 
 
 680. Dissolution order, and directions as to unclaimed dividends . 526 
 680a. Kestoration to register 527 
 
 VOLUNTARY WINDING UP. 
 
 681. Notice of first meeting to pass special resolution to wind up . . 527 
 
 682. Notice of second meeting to confirm special resolution to wind up 528 
 
 683. Notice of meeting to pass extraordinary resolution to wind up . 528 
 
 684. Ncjtice- for Ga:xttti of special resolution to wind up . . . 528 
 
 685. Notice for Gazette of extraordinary resolution to wind up . . 529 
 
 686. Notice to Registrar of special resolution to wind up . . . 530 
 
 687. Notice to contributories 530 
 
 688. (-all 531 
 
 689. Notice of call 532 
 
 690. Summons or notice of motion to enforce calls .... 532 
 
 691. Order enforcing cull made by li({uidator 532
 
 TABLE OF CONTENTS. xxiii 
 
 Form PAGE 
 
 692. Order to pay calls made before winding up .... 533 
 
 693. Another 534 
 
 694. Notice of motion to restrain distress 534 
 
 695. Notice to creditors 535 
 
 696. Summons for adjudication on disputed claims .... 536 
 
 697. Order for inquiry as to creditors of company 536 
 
 698. Declaration of dividend 536 
 
 699. Conveyance of freeholds 537 
 
 700. Eesolution 538 
 
 701. Another 538 
 
 702. Order as to remuneration of liquidator 539 
 
 703. Summons to tax costs 539 
 
 704. Order to bring in account of liquidator 539 
 
 705. Order removing liquidator 540 
 
 706. Another 540 
 
 707. Notice of motion 541 
 
 708. Formal parts of summons under s. 138 541 
 
 709. Order giving general liberty to apply 543 
 
 710. Another 543 
 
 711. Notice convening final meeting 543 
 
 712. Notice to registrar of final meeting 544 
 
 WINDING UP UNDER SUPERVISION. 
 
 713. Supervision order 
 
 714. Another appointing liquidator . 
 
 715. Order for appointment of liquidators 
 
 716. Liquidator ordered to give security 
 
 717. Order as to appointing solicitor to liquidation 
 
 718. Lilierty to bring action .... 
 
 719. Order as to remunei'ation of liquidators . 
 
 720. Taxation of liquidator's costs 
 
 721. Order removing liquidator .... 
 
 722. Liberty to call final meeting 
 
 545 
 545 
 546 
 546 
 547 
 547 
 548 
 549 
 549 
 550 
 
 RECONSTRUCTION. 
 
 723. Agreement with a view to reconstruction ... . . 560 
 
 724. Resolutions with a view to reconstruction 563 
 
 725. Notice of dissent pursuant to s. 161 564 
 
 726. Agreement for reconstniction sanctioned by the court in the 
 
 winding up of The Imperial Mercantile Credit Association . 964 
 
 AMALGAMATION. 
 
 727. Agreement with a view to an amalgamation with an existing 
 company 
 
 578
 
 xxiv TABLE OF CONTENTS. 
 
 Form PAGE 
 
 728. Resolution for amalgamation 579 
 
 729. Agreement by liquidators with a view to amalgamation with an 
 
 existing company 579 
 
 730. Resolution for the amalgamation of two companies with a third 580 
 
 731. Resolution for amalgamation to be effected by the formation of a 
 
 new company 581 
 
 ARRANGEMENT UNDER THE ACT OF 1870. 
 
 732. Order for meeting 588 
 
 733. Order sanctioning the sale 588 
 
 734. Partial continuance of liquidation 589 
 
 735. Arrangement for payment of unsecured creditors in full, deben- 
 
 ture holders to give time, trust deed to be modified, action 
 
 and winding up to be stayed 592 
 
 736. Order for meeting 594 
 
 737. Petition 594 
 
 738. Order sanctioning scheme 595 
 
 739. Arrangement for reconstruction by sale to new company, deben- 
 
 ture holders to accept debentures and unsecured creditors 
 
 composition 597 
 
 740. Order confirming scheme 597 
 
 741. Arrangement for reconstruction, creditors to accept liability of 
 
 new company, members to have partly paid shares in new 
 
 company 598 
 
 742. Notice of meetings 599 
 
 743. Petition to confirm scheme 600 
 
 744. Notice of meetings to consider scheme . . . . . 601 
 
 745. Notice of meetings 602 
 
 746. Scheme for reconstruction : debenture holders take shares in 
 
 new company . . . • 603 
 
 747. Order sanctioning scheme 606 
 
 748. Notice of meeting to consider scheme 607 
 
 749. Another. ..." 608 
 
 SPECIAL ACTS. 
 
 750. Act dissolving and re-incorporating a water-works company 
 
 formed under the Act of 1862 616 
 
 751. Act dissolving and re-incorporating a comjjany formed under the 
 
 Act of 1862, and conferring varicnis powers . . . . 621 
 752i Act dissolving and re-incorporating a comjiany inc(ir})orated by 
 royal charter and conferring ])ower to issue preference stock 
 taking priority over existing stock 623 
 
 753. Act for dissolving and re-incorj)orating company for continuing 
 
 and holding a cattle market and for other purposes . . . 628 
 
 754. Act extending the objects of a company formed under the Act of 
 
 1862 ... 628
 
 TABLE OF CONTENTS. 
 
 Form 
 
 755. Act extending the olyects of a company fomied under the Act of 
 
 1862 
 
 PAGE 
 
 629 
 
 756. Act for amalgamating two companies formed under the Act of 
 
 1862 ]>y the formation of a new company under the same Act 630 
 
 757. Act for amalgamating three companies by dissoh-ing and re- 
 
 incorporating them (335 
 
 758. Act subdividing shares, authorising conversion into preference 
 
 and ordinary, authorising repayment of capital paid in advance 
 
 of calls and modifying regulations 6.36 
 
 759. Act authorising a company formed under the Act of 1862 to 
 
 create debentures ranking in priority to existing debentures . 639
 
 TABLE OF CASES. 
 
 A. 
 
 Aberaman Ironworks V. Dickens 391 
 ALenlare, Klionda, &c., Co. . .401 
 Abrath v. North-Eastern Railway 
 
 Co 283 
 
 Accidental Death Insurance Co. . 588 
 
 Ins. Co. V. Davis . 119 
 
 Adair v. Young . . . .17 
 Adam's Policy Trusts . . . 300 
 Adamson's Case . . . 13, 145 
 Addie v. The Western Bank . 235 
 
 Adinell's Case . . . .210 
 Agar V. Athenseum Society . .187 
 Aggs V. Nicholson ... 5 
 Agra & Masterman's Bank, Li re 
 
 250, 251, 252, 559, 585 
 Agra & Masterman's Bank, //; re, 
 
 Ex parte 250 
 
 Air Gas, &c., Co. .... 474 
 Akary, In re . . . . 23 
 Albert Life Assui'ance Co., In re 
 
 375, 583, 584 
 Albert Life Assurance Co., Be . 61 
 Albion, &c., Co., v. Martin . . 145 
 Albion Life Assurance Co. . . 496 
 Alderson v. Maddison . . . 254 
 Alexandra Palace Co., Limited . 88, 
 
 169, 171, 172, 448, 453, 454, 457, 463, 
 504, 507, 508, 510 
 Alexandria Water Co, v. Musgro\'e 222 
 AlUance Co., In re . 376, 423, 424 
 AUman v. Doherty . . . 339 
 Alma Spinning Co. . . 143, 149 
 Ambergate Railway Co. \-. Nor- 
 
 cliffe 119 
 
 Ambrose Lake Tin Co. . . 40 
 American Bowling Co. . 451, 458 
 Amos V. Chadwick . . . 234 
 Anderson's Case 11, 12, 13, 40, 72, 112, 
 241, 244, 245, 400, 463 
 
 Anderson v. Butler's Wharf CV 
 V. Fitz<jerald 
 
 PAGE 
 
 261 
 301 
 454 
 13 
 461 
 
 Anderson, James, & Co. 
 
 Andress' Case 
 
 Andrew's Case 
 
 Anglesea Colliery Co., In re, 541, 542 
 
 Anglo-American Leather Cloth 
 
 Co., In re .... 450 
 
 Anglo-Continental Steamship Co. 519 
 Anglo-Danish Steam Navigation 
 
 Co 340 
 
 Anglo-Danubiau, &c., Co. , In re 
 
 131, 132, 152, 261 
 Anglo-Egyptian Co., lie . . 424 
 Anglo-French Co-operative So- 
 ciety, In re . . . 448, 508 
 Anglo-Italian Bank v. De Rosaz . 564 
 Anglo-Moravian Co. . . . 516 
 Appletreewick Leatl Mining Co. . 12 
 Appleyard's Case . . 13, 14, 38 
 
 Argentine Tramways Co. Limited 
 
 196, 397, 543 
 Arkwright v. Newlwld 231, 234, 235, 
 
 236, 243 
 Artistic Coloiu- Printing Co., lie 489, 535 
 Ashbury Railway, &c., Co. v. Riche 66, 
 68, 112, 187, 193 
 Ashley v. Ashley . . 211, 523 
 
 Ashton Vale Iron Co. v. Abbott . 195 
 Ashurst V. Mason . .168, 399 
 
 Asiatic Banking Corporation 222, 224 
 
 Askew's Case 400 
 
 Asphaltic Wood Co. . . .261 
 Association of Land Financiers 424, 
 
 434, 447 
 
 Aston Co 424 
 
 Athena?um Life Assurance Society 
 
 V. Pooley . . . .249 
 Attorney-General v. Alexander . 222 
 V. Great Eastern 68
 
 TABLE OF CASES. 
 
 Attorney-General v. Mayor, &e., of 
 
 Cambridge .... 314 
 Atwool i\ Merry weather . .138 
 Andley Hall Cotton Co. . 51G, 518 
 Australian Co., Be . . 523, 542 
 
 Australian, &c., Co. v. Mounsey . 83 
 Aiistralian Direct Steam Co. . 521 
 Auvergne Bituminous Rock Co. 394, 456 
 
 B. 
 
 Bacon, Ex pnrte .... 50 
 Baglan Hall Colliery Co., In re 67, 71 
 Bagnall v. Carlton 238, 239, 240, 391, 
 
 392 
 Bahia, &c., Railway Co. 117, 126, 223, 
 
 252, 400 
 Baird's Case . . .127, 355 
 Baker v. Stevenson ... 22 
 Ballycummisk Co. . . 525, 546 
 Bangor, &c., Co. . . 131, 195 
 Bank of South Australia v. Abra- 
 hams 261 
 
 Bank of Turkey «. Ottoman Co. 152, 241 
 Barber's Case . . . .147 
 Barned's Banking Co. . 68, 82, 464 
 
 Barned's Banking Co., Peel's Case . 68 
 Barnett's Patent Asphalte Paving 
 
 Co ^. 526 
 
 Bari'ow, &c., Co., In. re. . 12, 159 
 Barrow's Case . . . .13 
 Barry v. Sao Pedro Brazil Gas Co. 406, 
 
 413, 416 
 Barter v. Dubeux . . . 457 
 
 Bartlett v. Holmes . . .266 
 Barton's Trusts . . . . 1 59 
 Bas(pie Consolidated Silver Mining 
 
 Co 499, 510 
 
 Bateman's Case .... 504 
 Bateman v. Lewin ... 86 
 Bath's Case .... (J8, 154 
 Bayswater Club, &c., Co., Limited 87 
 
 Beck's Case 210 
 
 Beckford r. Wade . . . 240 
 
 Beer v. London & Paris Hotel . 4 
 Belding v. Read .... 259 
 Bell V. Russia Cojiper Co. . . 413 
 Belper Laund Colliery Co. . 492, 493 
 Bennett v. Brumfit . .165, 263 
 Bentham Mills Sjtinning Co., In re 125, 
 
 128 
 
 PAGE 
 
 Bentley's Case ... 12, 13 
 
 Berlin Great Market, &c., Co. . 487 
 Bessemer Steel Co. . . 584, 587 
 Betts V. De Vitre . . .17 
 
 V. Wilmot . . . .17 
 
 Beverley Iron Co. . . 453, 494 
 Binney v. luce Hall Coal Co., 117, 155 
 Bird V. Bird's Patent Deodorising, 
 
 &c., Co. . . . 193, 397, 555 
 Birmingham Brewery Co. . 437, 443 
 Black V. Homersham . . .159 
 
 V. Mailable . . 131, 145 
 
 Blackburn Building Society v. 
 
 Cunliffe . 
 Blaen Caelan, Co. 
 Blake's Case 
 
 Blake v. The Albion, &c. 
 Blakeley Ordnance Co. 
 
 . 131 
 
 . 499 
 231, 244 
 
 . 495 
 152, 250, 251, 
 260 
 Bloxam v. Metropolitan Rail. Co. 169 
 Blyth's Case ... 13, 483 
 
 Blyth, ,J. & A., Limited . . 320 
 Bog Mining Co. . . . 384, 543 
 Bonham, Inre . . . . 479 
 
 Booker & Co 447 
 
 Borough of Hackney Co., lie . 262 
 Borradaile v. Hunter . . . 306 
 Bowen v. Hall . . . .61 
 Bower Allerton Collieries . . 497 
 Bower v. Foreign & Colonial Gas 
 
 Co 406 
 
 Boyd's Trusts, In re . . . 427 
 Boyle V. Bettws Colliery Co. 408, 409 
 Bramah v. Roberts ... 87 
 Brampton Railway Co. . . 483 
 
 Braunstein v. Accidental Death 
 
 Co 307 
 
 Brentwood Brick Co., In re . 549 
 
 Brett's Case . . . .142 Add. 
 Brett V. East Lulia, &c., Co. 61, 142 
 Brick & Stone Co., In re 133, 141, 191, 
 
 521 
 Bridgewater Co., In re. . . 437 
 Bridport Co., In re . . 142, 529 
 
 Briggs, Ex parte . . . . 
 Brighton Arcade Co. v. Dowling . 
 
 Clarendon Hotel Co. 
 
 Bristol & South American, &c., 
 
 Co 
 
 Britannia Iron Works . 
 British Alliance Corporation 
 British Empire Horse . 
 
 232 
 531 
 476 
 
 . 459 
 438, 514 
 378, 424 
 
 . 486
 
 TABLE OF CASES. 
 
 PAOE 
 
 British Farmers, &c., Co. . 431, 521 
 British Fire Office . . .499 
 British & Foreign Gas Co., Re . 426 
 British Guardian Life Assurance 
 Co., Limited 426, 427, 492, 507, 508, 
 509, 510, 
 British Imperial Assurance Corpo- 
 ration . . 461, 475, 507, 510 
 British India Steam Co. . 263, 271 
 British Marine Insurance Co. . 533 
 ' British National Life Assurance 
 
 Association, Ex imrte . . 82 
 
 British Seamless Paper Box Co. 20, 40, 
 
 334, 399, 508 
 
 Brown, Bayley & Dixon . 292, 497 
 
 - & Co. V. Brown 
 
 -, John, »& Co. V. Keehle 
 
 - V. Wedgwood & Co. . 
 
 Brown's Case 
 Browne v. Cole . 
 V. Collins . 
 
 18 
 402 
 409 
 142 
 267 
 159 
 
 Browning v. Great Central Alining 
 
 Co .4, 60 
 
 Brownlie v. Campbell . . .241 
 Bryn Alyn, &c., Co. . . .401 
 Brynkinalt Collieries . . 448, 493 
 Brynmawr Coal & Iron Cu., In re 192, 
 
 455 
 Bryon v. Metropolitan, &c., Omni- 
 bus Co 83 
 
 Buchan's Case . . . .127 
 Buenos Ayres Co. . . .11 
 
 Bull V. Morrell .... 87 
 Burgess's Case . . . 232, 233 
 Burkinshaw r. Nicholls 13, 40, 224, 253 
 Burnes v. Pennell 124, 170, 11 -2. 354 
 Burt V. British Nation Life Asso- 
 ciation ..... 364 
 
 Bush's Case 13 
 
 Bussche v. Alt . . . . 148 
 Butler's \\Tiarf Co. . . 457, 520 
 
 C. 
 
 Cadiz Waterworks . . . 495 
 Cadiz Waterworks Co. v. Barnett 402 
 Calcutta Jute MHls . . 222 
 
 Caledonian Co. v. Sohvay . 88 
 
 Cambrian, &c., Co. 135, 140, 19 . 505, 
 
 559 
 Campbell's Case . 131, 194, £; I 467 
 
 Campbell v, Compagnie Generale 
 
 de Bellegarde . . . .409 
 Canada, &c., Co., Limited . .516 
 Canadian, Land, &c., Co., Coventry 
 
 & Dixon's Case . . . 508 
 
 Cannon v. Trask . . .124, 395 
 Cape's Case ..... 355 
 Cape Breton Co. . 394, 452, 456, 460, 
 461, 483, 500, 502, 506, 508 
 Capital Fire, Re . . .160, 448 
 Cardiff & Merthyr, &c., Co. . 447 
 
 Cargill V. Bower . . 231, 235, 362 
 Carling's Case 11, 12, 145, 363, 589 
 
 Carmarthenshire Anthracite Coal 
 
 Co 430 
 
 Carriage Co-operative, Re . . 497 
 Carter's Case .... 504 
 Castellan f. Preston . 309,310,311 
 Cathcart, Re .... 504 
 
 Catholic Co 381 
 
 Central American File Co. . .481 
 Central Railway Co. of Venezuela 
 
 V. Kisch . , . 230, 232, 241 
 
 Cesena Co 222 
 
 Chapel House Colliery Co. . 379, 423 
 Chapleo v. Brunswick Society 132, 233 
 Chapman's Case . . . .61 
 Chapman r. Barber's Case . . 117 
 
 f. Pole . . .311 
 
 Chidley 50 
 
 Chinery ..... 465 
 Chisholm v. Cadiz Waterworks 
 
 Limited .... 411,412 
 Circle Restaurant v. La very . . 402 
 City Bank, In re . . 83, 265, 271 
 City and County Bank 419, 516, 520 
 City & County Investment Co., 
 
 In re . . 555, 556, 558, 577 
 
 Civil, &c., Supply Association . 420 
 
 Clagett 474 
 
 Clarbrough v. Toothill . . .23 
 Clavk, Ex 2)ctrte . . . .61 
 Clarke v. Dickson . . 233, 235 
 Clarke's Case . . . .13 
 Clement v. Mathews . . . 259 
 Clement's Case .... 504 
 Clifoden Benefit Building Society 428 
 Clinch V. Financial Corporation 68, 367, 
 396, 558, 577 
 Clyne Tin Works . . 261, 448 
 Coal Consumers' Association . 473 
 Coates' Case .... 72
 
 TABLE OF CASES. 
 
 Coates V. London, &c., Railway Co. 224 
 Cocks, Ex 2)nrte .... 450 
 Colborne v. Strawbridge . 7, 219 
 
 ColdhurstCo 200 
 
 Collie's Claim . . . .152 
 Collingridge v. Eoyal Insurance 
 
 Co 309 
 
 Collins V. Collins ... 26 
 
 Colonial Life Assurance Co. v. 
 The Home & Colonial Assurance 
 Co., Limited .... 65 
 Colonial Mutual .... 90 
 Colonial Trusts Corporation 258, 259, 
 261, 481, 547, 549 
 Coltness Iron Co. v. Black . 170, 222 
 Commercial Bank Limited . . 448 
 Commercial Clothing Co. . . 468 
 Compagnie de Senegal v. Smith . 24 
 Connelly v. Steer . . .261 
 
 Contract Corporation . . 499, 507 
 Coote V. Jecks .... 257 
 Copper Miners' Co. . . . 484 
 Cork & Bandon Railway Co. . 116 
 CorneUi'. Hay . . . .243 
 Cornish Consolidated, &c., Corpo- 
 ration ..... 485 
 Cornwall Mining Co. v. Bennett . 119, 
 
 120 
 Cottam V. Eastern Counties Rail- 
 way Co 223 
 
 Count D'Epineuil, I)i re . . 259 
 County Life Assurance Co. 150-156, 187 
 Coventry & Dixon's Case . 142, 508 
 
 Credit Co 499,503 
 
 Credit Foncier .... 372 
 Crew V. Terry . . . . 50 
 Creyke's Case .... 122 
 Crickmer's Case . . .11,12,71 
 Croft V. Day .... 64 
 Crookhaven Mining Co. . . 545 
 Cropper v. Smith . . . 520 
 
 Croskey v. Bank of Wales . 119, 152, 
 
 15.3, 188 
 Cross, III re . . . . • 240 
 Crouch V. Credit Foncier of Eng- 
 land . . .251, 252, 265 
 Crown Co-operative Society . 462 
 Crown Match Co. . . .492 
 Crum V. Oakbank Co. . . . 89 
 Cnimlin Viaduct Co. . 261, 480, 482 
 Cruse r. Smith . . . .426 
 Cullen r. Thompson's Trustees . 93 
 
 D. 
 
 PAGE 
 
 Da Costa v. Scandret . . 307 
 
 Daniell v. Tibbetts . . .309 
 D'Arcy v. The Tamar . . .150 
 Darlaston Coal & Iron Co. Limited 451, 
 
 477, 587 
 
 Davey v. Shannon 
 Davies v. Goodman 
 Davis, Ex farte . 
 
 V. Ashwin . 
 
 Davison v. Gillies 
 Davy V. Price 
 Dawkins v. Antrobus 
 Dawson v. Beeson 
 
 V. Fitzgerald 
 
 V. Owen . 
 
 De Bussche v. Att 
 De Pass' Case 
 
 . 60 
 . 261 
 . 160 
 . 410 
 155, 169, 170, 398 
 . 444 
 . 121, 179 
 25, 418 
 . 24 
 . 404, 413 
 . 145 
 . 123 
 
 De Rosaz v. Anglo-Italian Bank 
 
 De Ruvigne's Case 
 
 Denham & Co. 
 
 Denny, Ex parte . 
 
 Dent's Case . 
 
 Dent V. London Traniways 
 
 Denton Colliery Co. . 
 
 V. Macneil 
 
 Derljyshire Wagon Co. 
 Devonshire Silkstone Coal 
 
 557, 
 564 
 12, 142, 363,507 
 172 
 
 . 400 
 71, 112 
 . 169 
 14, 15 
 . 232 
 430, 490 
 Co. 521, 
 54(t 
 
 Diamond Fuel Co., hi re 381, 424, 508, 
 
 520 
 
 Dickenson v. Valpy 
 
 Dickson v. Harrison 
 
 Direct United States Cable Co. 
 
 Dixon's Case 
 
 Doman's Case 
 
 Dominion of Canada Co. . 444. 
 
 Doncaster, Ex j^c-rte 
 
 Donnell v. Bennett 
 
 Dorcase's Society . 
 
 Dougan's Case 
 
 Dowlais Iron Co. 
 
 Downes v. Ship . 
 
 D'Oyley r. British Chemical Co, 
 
 87 
 520 
 557 
 311 
 573 
 461 
 139 
 339 
 432 
 
 87 
 515 
 245 
 409, 
 410 
 459 
 
 14 
 
 Drake's Patent Concrete Co. 
 Droitwich Salt Co. 
 Dronfield Co., In re 89, 154, 444, 461, 
 
 516 
 Drummond's Case . . .71
 
 TABLE OF CASES. 
 
 PAGE 
 
 Duckett i). Gover . . 367, 368 
 
 Duke's Case .... 72 
 
 Dunne v. English . . .145 
 
 Dunston v. Imperial, &c., Co. . 143 
 Dyett's Case . . . 555, 561 
 Dynevor Collieries Co. . 425, 585 
 
 Dynevor Dvffryn, &c., Co., In re 458, 
 
 584 
 
 E. 
 
 187 
 
 223 
 535 
 422 
 
 137 
 23 
 
 Eagle Co., Ex imrte : 
 Eaglesfield v. IMarquis of London- 
 derry ..... 
 East Kent Shipping Co. 
 East Llangynog Lead Co. 
 East Pant., &c., Co. v. Merry- 
 weather ..... 
 Eastern Counties Railway Co., Rn 
 Ebbw Vale Co. . . .170, 474 
 Eclipse Gold Mining Company, 
 
 Limited . . . 195, 536, 542 
 Economic Benefit Society . . 458 
 Edmunds v. Foster . . . 133 
 Edwards f. Aberavon,&c., Society 24 
 
 V. Midland RaUway 98, 233 
 
 Elder v. New Zealand Land Co. . 116 
 Eley V. Positive Government, &c., 
 
 Cq. 60, 61, 115, 152, 153, 156, 188 
 Elkington's Case . . . .246 
 Emma Silver Mining Co. . .515 
 
 V. Grant 238, 
 
 239, 240, 392, 
 457 
 
 V. Lewis 237, 
 
 238, 239, 240 
 Emmanuel, Ex 'parte . . . 450 
 Emmerson's Case . . .428 
 
 Empress Engineering Co. 1,30, 60, 188 
 England v. Lord Tredegar . . 308 
 Englefield Colliery Co., 152, 153, 188, 
 237, 254, 507, 508 
 
 English Joint-Stock Bank 
 
 . 504, 
 
 505 
 
 Enthoven v. Hoyle 
 
 . 263, 
 
 271 
 
 Era Co.'s Case 
 
 
 87 
 
 Erichsen ii. Last . 
 
 
 221 
 
 Erimus Iron 
 
 
 525 
 
 Erlanger v. New Sombrero 
 
 Co. 57, 
 
 241 
 
 Ernest v. NichoUs 
 
 82, 115, 
 
 241 
 
 Esparto Co., //(-re 
 
 
 121 
 
 Essex Brewery Co. 
 
 
 39 
 
 Estates Investment Co. 
 
 
 464 
 
 Estcourt V. Estcourt Hop Co. 
 Eswick V. Hawkes 
 Eupion Fuel & Gas Co. 
 Ei;ropean Bank . 
 Banking Co., In re 
 
 Central Co., In re 
 
 Evan's Case . . . . 
 Evans v. Coventry 
 
 y. Hearts of Oak Society . 
 
 Exeter & Crediton Railway Co. v. 
 Buller 
 
 TAOE 
 
 65 
 . 311 
 . 462 
 . 547 
 . 380, 
 424, 425 
 . 265 
 . 71 
 . 185 
 395 
 
 368 
 
 Fell, Ex parte .... 490 
 Ferrao's Case . . 13, 516, 520 
 Field V. Field . . . .494 
 Fielding & Remington's Case . 199 
 Financial Corp(5ration, In re 82, 87, 168 
 
 Insurance Co. . . 504 
 
 Firmstone's Case . 12, 41, 71, 244 
 
 Fisher v. Hull & Barnsley Railway 
 
 Co 121, 171 
 
 V. Keane . . . .179 
 
 Flagstaff Co., Re . . 376, 423, 424 
 Flitcroft's Case . 88, 89, 169, 171, 172, 
 200, 240, 507, 508, 510 
 Florence Land & Public Works 
 
 Co., Limited . . . 257, 258 
 
 Forder v. Handyside . . . 222 
 
 Forest of Dean. &c.. Co., Limited 168, 
 
 457, 488, 508 
 
 Fortune Copper Mining Co. 420, 42 1^ 
 
 453 
 Foss V. Harbottle . . 366, 367 
 Fothergill's Case . . 13, 72 
 
 Fox's Case . 193, 557, 558, 559, 576 
 France v. Clark . . . 125 Add. 
 Frazer v. Cooper, Hall & Co. 364, 407 
 Freehold Land Co. v. Spargo . 433 
 Freeman v. Cooke . . . 223 
 Furnival v. Co< mibes ... 3 
 
 G. 
 
 Gadd v. Houghton ... 5 
 Gamble v. Accident Insurance Co. 316 
 Garden Gully, &c., Co. v. McLister 121, 
 
 146, 188 
 QavBtin, Ex parte . . .511 
 
 Gartside v. Silkstone Co. . . 266
 
 TABLE OF CASES. 
 
 PAGE 
 
 Gaudet Freres, &c., Co. . . 589 
 Gelly Deg. Colliery Co. . . 18 
 General Estates Co., In re 251, 260, 271 
 General Exchange Bank . .516 
 General Financial Bank 380, 426, 4.33 
 General Horticultural, lie . . 505 
 General Machinery Purchase Co. . 431 
 General Meat Co. ... 422 
 
 General Mining Association Li- 
 
 , mited 372 
 
 General Sewage & Manure Co. , 476 
 General Share Trust . . 489, 514 
 General South American Co. Li- 
 mited . 262, 459, 474, 480, 522 
 
 491 
 
 233 
 
 68 
 
 General Works Co. 
 
 Gerhard v. Bates . 
 
 German Date Coffee Co. 
 
 Gibb V. Great Southern Mysore 
 
 Gold Co .... 
 Gibbs V. Guild 
 V. West's Case . 
 
 386 
 
 235 
 
 83 
 
 133 
 
 120 
 
 419 
 
 222 
 
 467, 533 
 
 21,24 
 
 . 376 
 
 . 412 
 
 Gibson v. Barton . 
 
 Gilbert's Case 
 
 Gilbert v. Endean 
 
 Gilbertson v. Ferguson 
 
 Gill's Case . 
 
 Gillett V. Thornton . 
 
 Globe Co. . 
 
 Globe New Patent, &c., Co. 
 
 Gold Co. 11, 40, 240, 402, 504, 505, 542 
 
 Gooch'sCase . . . 126,499 
 
 Good, In re Lee .... 476 
 
 Goodwin v. Robarts . . 252, 254 
 
 Gordon v. Cassel Tramways Co. . 412 
 
 Gorelj, Ex jMrte . . . .311 
 
 Gouldstone v. TheRoyallnsurance 
 
 Co 310 
 
 Goulton V. London Ai'chitectural 
 
 Co 121, 394, 395 
 
 Government Security Fire Insur- 
 ance Co. Limited . . 423, 485 
 Government Security Co., In re 
 
 Mudford's Claim . . .14 
 Governor & Co. of Copper Miners 478 
 Cover's Case . . 232, 242, 243 
 
 Gower's Case .... 461 
 Graff V. Evans . . . .106 
 Gray v. Lewis . . . 365, 367 
 Great Britain Mutual . . 297, 375 
 Great Southern i\Iysore Co. . 430 
 
 Great Western Colliery Co. Lim. 422 
 Great Western Laundry Co. . 547 
 
 PAGE 
 
 Great Western Van Co. . . 452 
 Great Wheal Polgooth Co. . 237, 238, 
 
 508 
 Greenbirt v. Smee . . . 259 
 Greenwood's Case . . 254, 355 
 Grey's Brewery . . . 483, 505 
 GrifHth v. Paget . 115, 167, 169, 189, 
 241, 397, 556, 557, 561 
 Grissell's Case .... 467 
 Guardian Fire v. Guardian & 
 
 General ..... 65 
 Guinness v. Land Corporation of 
 
 Ireland ,36, 67, 84, 88, 112, 121, 155, 
 
 169 
 Gustard's Case , . . .125 
 Gwendraeth Colliery . . . 447 
 
 H. 
 
 301, 
 
 557 
 123 
 311 
 
 457 
 480 
 493 
 231 
 450 
 354 
 
 Hafod Hotel, Re 
 
 Hagire v. Danderson 
 
 Haigh f. De la Cour 
 
 Hale V. Bousteud 
 
 Haly V. Barry 
 
 Hall, Ex ixirte 
 
 Hall V. Old Talargoch Co, 
 
 V. Conder 
 
 Hallett V. Dowdall 
 Hallows V. Fernie 142, 231, 232, 235, 
 
 241 
 Haly V. Barry .... 480 
 Hamilton, Lord Claude's Case . 133 
 Hamilton's Windsor Iron Works 
 
 Co. . . 258, 452, 461, 481, 482 
 Hammersmith Town Hall Co. 428, 482 
 Hampson v. Price's Patent Candle 
 
 Co 152 
 
 Hanley Hotel Co. 'Limited . . 493 
 Harben v. Phillips 61, ] 39, 147, 366, 
 367, 368, 395, 396 
 Hardy v. Green .... 259 
 Hargrove, Ex 2}arte . . .91 
 Harper v. Paget . 22, 193, 197, 397 
 Harris's Case . . .148, 247 
 Harrison v. Mexican Railway Co. 
 
 131, 195 
 Hart V. Clark . . . .121 
 
 V. Frontino . . . .223 
 
 Hartley's Case ... 14, 15 
 
 Harvev Lewis' Caye . . . 143
 
 TABLE OF CASES. 
 
 Harwich Harbour Co. . 
 
 
 483 
 
 Hauxwell v. Hemingrosy 
 
 
 258 
 
 Haven Gold Co. . 
 
 
 68 
 
 Ha\vne Collieries Co. . 
 
 
 548 
 
 Hay's Case . . . . 
 
 145 
 
 237 
 
 Haycock's Policy 
 
 
 307 
 
 Heaton's Steel & Iron Co. 
 
 465 
 
 520 
 
 Heiron's Case 
 
 
 504 
 
 Helby's Case 
 
 
 169 
 
 Heliotyioe Co. 
 
 
 454 
 
 Hemming, ex parte 
 
 
 239 
 
 V. Maddick . 
 
 
 117 
 
 Henderson v. Lacon, 230, 231, 234, 235, 
 
 388 
 Hendricks v. ^Montagu . . 65 
 
 Henley & Co. . . . . 479 
 Henry v. Great Northern Railway 
 
 Co 181, 398 
 
 Hereford Engineering Co. . .188 
 Hereford & South Wales Co., In 
 
 re 240 
 
 545, 547, 555, 
 558 
 . 401 
 Central 
 
 . 232 
 . 50 
 . 357 
 251, 272, 557 
 . 496 
 69, 127 
 . 494 
 . 474 
 . 465 
 258, 267, 
 481 
 . 160 
 . 520 
 . 466 
 . 199 
 
 Hester & Co. Limited . 
 
 Hexham Mining Co. . 
 Heyman v. European 
 
 Co. . 
 Hickman, In re . 
 Hickson v. Darlour 
 Higg's Case 
 Hill Pottery Co, . 
 Hill's Case . 
 Hillier v. &c. 
 
 Hockley Hall Collieries Co, 
 Hodges, Be . 
 Hodson V. Tea Company, 
 
 Holland v. Holland 
 Holloway v. Cheston . 
 Hollybush Colliery Co. 
 Holme's Case 
 Holmes v. Newcastle, &c., Co., 171, 367 
 Holroyd v. Marshall 
 Holthausen, Ex parte . 
 Holywell Level Silver Co. . 
 Home Assurance Association, In 
 re ..... . 
 
 Home Investment Society, In re, 
 
 Hooker's Cream Milk Co. . 
 Hoole V. Great Western Railway 
 
 Co 
 
 Hooper v. Accidental Death Co. . 
 
 259 
 257 
 476 
 
 423 
 461,. 
 516 
 
 382 
 
 159 
 315 
 
 PAGE 
 
 Hooper v. New Town I\Ianure . 414 
 Hooper Hill, Re . . . .502 
 Hooper's Telegraph Works, 430, 456, 
 458, 483, 522 
 Hope V. International Financial 
 
 Society, 112, 154, 188, 193, 367, 398 
 Hopkin's Trusts, In re . .159 
 Hopkins, iZe . . . .480 
 Hopkins v. Worcester & Birming- 
 ham Canal . . . 258, 408 
 Hopkins, Gilkes & Co. . 430, 477 
 Horbury Bridge, &c., Co., 136, 137, 191, 
 192, 448, 542 
 Home V. Foreign Gas Co. . . 422 
 
 Hort's Case 301 
 
 Houldsworth v. City of Glasgow 
 
 Bank ... 14, 232, 233 
 
 Household Insurance Co. . . 485 
 
 Fire Insurance Co. v. 
 
 Grant 247 
 
 Howard's Case .... 148 
 Howbeacli Coal Co. v. Teague, 118, 141 
 Hoyland Co., Ee,. . . 428, 433 
 Huggins V. Tweed . . . 364 
 Hull Central Drapery Co. . . 490 
 Humber Iron Works Co., In re, 380, 
 
 425 
 Humphreys v. Pearson . .515 
 
 Hunt's Claim ' . . . .168 
 Hutton V. Scarborough Cliff Hotel 
 
 Co. . . . 131, 193, 195, 199 
 Hydraulic Engineering Co., 
 Limited 372 
 
 Imperial Bank of Cliina v. Bank 
 
 of Hind. . . 213, 558, 576, 577 
 Imperial Blackpool Co. . . 134 
 Imperial Hydropathic Co. 146, 147, 366 > 
 
 381 
 
 Land Co. of Marseilles, 
 
 In. re . 193, 213, 250, 251, 
 254, 260, 499 
 i\Iercantile Credit Asso- 
 ciation, Limited 145, 550, 555, 564, 
 
 577 
 
 Ince Hall Co., Ee ... 39 
 
 Indian Zoedone .... 528 
 
 ' Industrial Coal & Iron Co. . . 495 
 
 ' Inns of Court Hotel Co. . 153,260
 
 xxxiv 
 
 TABLE OP CASES. 
 
 PAGE 
 
 International Co., Re . . 262, 301 
 
 Contract Co.'s Case, 
 
 68, 82, 86, 506 
 Life Assurance So- 
 ciety . . . 484 
 
 Patent Pull?, &c., 
 
 Co. . 448, 487, 522 
 Livestors' Trust Co. . . .421 
 Ipswich Public Hall Co. . . 427 
 Iron Sliip, &c., Co. v. Blunt . 118 
 
 V. Hunt. . 144 
 
 Iron Sliipbuilding Co. . . 400 
 
 Irrigation Co. of France . . 555 
 I rvi ne v. Union Bank of Australia 131, 
 
 187, 260 
 Isle of AVight Ferry Co. . .519 
 Eailway Co. v. 
 
 Tahourdin . . . \^Z Add. 
 Ivy House & Northwood Colliery 
 
 Co 451, 498 
 
 Izard, Ex parte .... 430 
 
 J. 
 
 Jablochkoff Co., Re . . . 423 
 .Jackson, In re .... 117 
 •Jacoby v. Wliitmore ... 25 
 .Jamaica Fibre Co. . . . 453 
 James v. Eve . . 142, 171, 576 
 .Jameson v. Koyal Insurance Co. . 311 
 .Japanese Curtains Co. . . . 482 
 iay, Ex parte, In rc^avxhow . 127 
 •Jennings v. Hammond . . 91 
 
 .Johnson v. Lyttle's Iron Agency 
 
 Limited . 119, 121, 394 
 
 V. Benton . , . 223 
 
 .Joint-Stock Coal Co. . . . 496 
 
 Discount Co. v. Brown 
 
 67, 86, 155, 400 
 Jones V. Cwmarthan Co. . . 222 
 
 V. Jones .... 22 
 
 V. Swansea Building Society 481, 
 
 495 
 
 V. Victoria Graving Dock Co. 61 
 
 Jones' Case 71 
 
 K. 
 
 Karuth's Case . . . .142 
 Kellock V. Enthoven . . .124 
 Kellock's Case .... 480 
 Kelner i\ Baxter .... 2 
 Kennedy v. Panama Mail Co. . 232 
 
 page 
 
 Kennoor Fisheries Co. . . 485 
 Kent V. Freehold Land Co. 211, 231, 
 
 388 
 King V. Marshall . . .261 
 
 Kintrea, Ex parte . . . 400 
 
 Kirk V. Bell .... 19 
 Kit Hill Tunnel Co., 469, 473, 475, 476, 
 
 480 
 Knight's Case . . 121, 491, 501 
 Knox V. Gye . . . .143 
 Krehl v. Great Central Co. . . 435 
 
 L. 
 
 Laeouchere v. Dawson . . 25 
 
 r. WharnclifFe . 179 
 
 Lambert v. Neuchatel Co. . .169 
 
 V. Northern, &c., Co. . 143 
 
 L'amy ■;'. Imperial Chemical, &c., 
 
 Co 416 
 
 Land Credit Co. v. Lord Fermoy, 
 
 88, 399 
 Land Credit of L-eland Co., 4, 148, 149, 
 
 187 
 Langdale Chemical Manure Co., 
 
 In re 371 
 
 Langer's Case . . . .124 
 Langham Skating Rink Co., 423, 430, 
 
 448 
 Lawrence v. Accidental Death Co. 315 
 
 . 119 
 
 . 245 
 
 411,412 
 
 . 210 
 
 . 25 
 
 . 67 
 
 . 302 
 
 . 301 
 
 . 516 
 
 . 125 
 
 . 259 
 
 415 
 
 240 
 
 i: Wynn 
 
 Lawrence's Case . 
 
 Lee V. Bowei- 
 
 Leeds Banking Co. 
 
 Leggott 11. Barrett 
 
 Leifchild's Case .... 
 
 Leslie v. French .... 
 
 Lethbridge v. Adams . 
 
 Levick, Ex 2Mrtc .... 
 
 Lewis, In re .... 
 
 V. Maddocks 
 
 Limljert v. Mineral Hill, &c., Co. 
 Lindsay Petroleum Co. v. Hurd . 
 Lisbon Steam Tramways Co. 394, 460, 
 503, 505, 513, 517 
 Lishman's Case .... 261 
 Liverpool, &c., Co. v. Houghton . 164 
 Liverpool Guarantee Co. . .120 
 Llanganneck Collieries Co. . . 455 
 Llanrwst Slate Co. . . . 525 
 Lloyd V. Lloyd & Co. . . 481, 495 
 Llynvi, Tondu, &c., Co., 201, 371, 372
 
 TABLE OF CASES. 
 
 PAGE 
 
 Logan's Case . . . .61 
 Lombard Bank . . . .469 
 London & Asiatic, &c., Co. . . 543 
 
 Assurance Corporation v. 
 
 The London and West- 
 minster Assurance Cor- 
 poration ... 65 
 
 & Australian Agency . 528 
 
 Bank of Scotland . .531 
 
 & Caledonian Co. . . 545 
 
 & County Banking Co. r. 
 
 The Capital and Couji- 
 
 ties Bank . . 64, 225 
 
 Financial v. Kelk . . 66 
 
 Fishmarket, Re . . 502 
 
 Guarantee Co. v. Fearnley 330 
 
 & Hambiu'g Bank . . 466 
 
 India-rubber Company, 
 
 hire . . . . 189 
 
 & Manchester Association 378 
 
 & Mercantile Discount Co. 137 
 
 Paper, &c., Co. . . 539 
 
 & Paris Banking Co. . 381 
 
 Pianoforte Co. . . 401 
 
 & Provincial Law Assur- 
 
 ance Society v. London 
 & Provincial, &c., Co. 64, 72, 
 463, 464 
 
 & South - "Western Bank 
 
 V. Wentworth . . 125 
 
 & Southwark Insurance 
 
 Corporation . . 474 
 
 & Staffordshire . 211,400 
 
 & Suburban Bank, I/i re, 423 
 
 489, 513 
 
 Tramways Co. . . 398 
 
 & Westminster Co-opera- 
 
 tive Store Co. . 421, 427 
 Longdendale Cotton Co., In re . 383 
 
 Lord V. Lee 22 
 
 Los's Ca.se ..... 557 
 Louth V. The Western of Canada 
 
 Co 409 
 
 Lowenthal, Ex parte . . .471 
 Lydney Co. v. Bird . . . 403 
 Lyon's Case . . . .149 
 
 Lyster's Case . . . .149 
 Lyttle's Cast Steel Co. . .431 
 
 M. 
 
 Macdonald v. Law Union Insur- 
 ance Co 251, 302 
 
 Macdougal v. Gardiner 133, 138, 366, 
 
 367 
 
 Macdougall v. Jersey Imperial 
 Hotel Co. . . 116, 169, 367, 398 
 
 Maclver's Claim . 
 Mackay's Case 
 Mackley's Case . 
 Mackreth v. Syraons 
 Maclaren v. Stainton 
 Maclure, Ex parte 
 Madras Co., Re 
 Madrid Bank v. Pelly 
 Markets Co. 
 
 301, 485 
 363, 507 
 71 
 570 
 159 
 61 
 494 
 188, 237, 516 
 . 458 
 . 469, 480 
 
 Maggi, In re 
 
 Mahoney v. East Holyford Min- 
 ing Co. . . . 154, 156, 187 
 
 Main Printing, &c., Co. . 488, 540 
 
 Mair v. Himalaya Tea Co. . 
 
 V. Railway Passengers' Co. . 
 
 Maitland's Case .... 
 
 Malabar Gold AVashing Co. . 
 
 Malaga Lead Co., J;i re, Firmstone's 
 Case ..... 
 
 Malpaso Gold Co. 
 
 Mammoth CopperopoUs of Utah . 
 
 61 
 315 
 143 
 
 502 
 
 41 
 
 424 
 
 584 
 
 383, 421 
 
 . 520 
 
 . 540 
 
 . 420 
 
 . 87 
 
 . 419 
 
 Manchester Co., In re . 
 
 Economic . 
 
 Manor Silkstone Coal Co. 
 
 Manui'e Co. . 
 
 March v. Martin 
 
 Marezzo Marble Co. . 
 
 Marine Mansions Co. 83, 260, 261, 481 
 
 Marine Mutual v. Young . . 91 
 
 Marron Bank Co. . . . 426 
 
 Marsden v. City & County Co. . 327 
 
 Marseilles Extension Co, . 428, 469 
 
 Marshall v. Glamorgan Iron and 
 
 Coal Co. . 
 
 . 187 
 
 Martin's Case 
 
 . 557 
 
 Marzetti's Case 
 
 152, 168, 507 
 
 Masbach v. Anderson . 
 
 . 490 
 
 Mason v. Harris . 
 
 . 138, 367 
 
 V. Taylor, In re 
 
 . 263 
 
 Massey, In re 
 
 444, 516, 539 
 
 A n..« 
 
 . 504 
 
 
 Mathias v. Wilts & Berks Canal 
 
 Co. 
 
 . 88 
 
 V. Yetts . 
 
 232. 234, 362
 
 TABLE OF CASES. 
 
 Matthews v. Great Northern Kail- 
 
 way Co. . 
 Claude's Case 
 Mayhew's Case . 
 !Mege and Augier's Case 
 Melhado v. Hamilton . 
 V. Porto Allegro 
 
 181, 307 
 
 157, 166 
 
 . 355 
 
 . 12 
 
 . 195 
 
 Rail- 
 
 153, 188 
 
 505, 513 
 
 Telegraiih 
 
 137, 367 
 
 way Co. . 
 Mendip Hematite, &c., Co 
 ]\Ienier v. Hooper's 
 
 Works . 
 Merchant Banking Co. of London 
 
 V. Merchants, &c., Bank 50, 65, 251 
 
 V. Phtenix 
 
 Co 254 
 
 Mersey Docks c. Lucas . 221, 222 
 
 Steel Co. V. Naylor . 467, 469, 
 
 480 
 
 Metal Tube Co 514 
 
 Metrop., &c.. Bank, Eximrte Davis 160 
 j\Ietropolitan Bank v. Heiron 240, 508 
 JMidland Railway Co. v. Pye . 357 
 Mignotti's Case .... 71 
 Milan Tramway Co., Limited . 424, 
 429, 469, 485, 503, 508 
 Miller's Case . . . .412 
 JNIilligan v. Hellin Sulphur Co. . 416 
 Mills V. Bayley .... 22 
 
 V. The Northern Railway of 
 
 Buenos Ayres . 
 ]\Iilnes V. Gery 
 Mitcalfe, In re . 
 Mitcalfe's Case 
 Mitchell's (Alex.) Case 
 Moffatt V. Farquhar 
 Monte Loreto Gold, &c., Co. 
 Moon V. Durden . 
 Moor V. Ano-lo-Italian Bank 
 
 169, 172 
 . 26 
 . 475 
 
 363, 507 
 . 124 
 
 124, 125 
 
 . 475 
 
 . 357 
 
 258, 379, 
 
 473 
 
 . 307 
 
 439, 447 
 . 485 
 
 Moore v. Woolsey 
 
 ]\Ioorwood Moor Coal, &c., Co 
 
 Murant's Trusts, In re . 
 
 Morrison v. Thompson . . .145 
 
 MoiTiston's Patent, &c., Co. . . 428 
 
 Morvah, Consols, &c., Co. . .145 
 
 Moscow Gas Co. v. International 
 
 Financial Society . . . 403 
 Moseley v. Cressey's London Co. . 247 
 Moule's Patent Co. . . . 201 
 Mowattv. London Co-oj). Laundry 
 
 Co., Limited .... 408 
 Mozley v. Alston . . . 367 
 
 PAGE 
 
 Mudford's Claim .... 14 
 Muir V. City of Glasgow Bank . 117 
 Munster's Case 146, 147, 244, 366, 395 
 Munt V. Shrewsbury and Chester 
 
 Railway Co. . . . .610 
 Murray v. Bush .... 142 
 Mutual Society, Re . . 499, 500 
 Mycock V. Beatson . . .391 
 
 Nant-y-Glo & Blaima Iron 
 
 Works V. Grove . 237, 363, 393 
 
 Nares v. Dering . . . .23 
 Nassau Phosphate Co. ... 71 
 Natal Investment Co. 249, 250, 251 
 Nation's Case . . . .461 
 National Bank v. Hampson . . 259 
 National Coffee Palace . . 247 
 National Credit, &c., Co., In re . 421 
 National Funds Assurance Co. . 172, 
 
 431, 463, 464, 503, 507, 509, 520, 521 
 Native Iron Ore Co. . . . 262 
 Nelson Mitchell v. City of Glasgow 
 
 Bank 124 
 
 New Brunswick and Canada Rail- 
 way Co. V. Muggeridge . . 229 
 New CaUao Co., Ee . .419, 420 
 New Civil Service Co-operation, 
 
 In re .... 371, 373 
 New Clydach Co. . . .258 
 
 New Gas Co 424 
 
 New London and Brazilian Bank 
 
 V. Brocklebank . . . 123 
 
 New Quebrada Co., Pontifex's 
 
 Case 402 
 
 New Sombrero Phosphate Co. v. 
 
 Erlanger 20, 149, 239, 240, 242, 243, 
 363, 389 
 New Town Manure Co. . . 495 
 New Westminster Brewery v. 
 
 Hannah 566 
 
 New Zealand Kapanga, &c., Co. . 14 
 Newport, &c., Co., hi re . .13 
 
 Newspaper Co 549 
 
 Newton v. Hetherington . . 22 
 Nicol's Case . . . .232 
 Niger Merchants v. Capjier . . 402 
 Noble's Explosives v. Jones . . 17 
 Norman Patent Sewing Machine 
 
 Co 443
 
 TABLE OF CASES. 
 
 xxxvu 
 
 PAGE 
 
 North British Australian Co. . 373 
 North British Co. v. London Liver- 
 pool Co. 310, 311 
 
 r. Moffatt . 310 ' 
 
 North Buckley Co. . . .461 
 North Hafod Co. . . .525 
 
 North-Western of Montevideo 
 
 &c., Co 422 
 
 North Yorkshii-e Iron Co., In re . 497 
 Northampton Coal, &c., Co. v. 
 
 Midland AVagon Co. . . 403 
 
 Northfield Iron & Steel Co. 460, 527 
 
 Northmoor Co 200 
 
 Norton v. Florence Ladd Co. 261, 265 
 Norton Iron Co., Limited . 380, 450 
 Norwich Provident Co. . 447, 483 
 
 0. 
 
 Oak Pits Colliery Co., Be . . 497 
 Oakbank Co. v. Crum . . 157, 159 
 Oakes v. Turrpand 232, 245, 388, 528 
 Oakham Collieries Co. . . 493 
 
 Oglesby's Case .... 22 
 Oporto Mining Co. . . . 525 
 Oppenheim v. Wreck Kecovery 
 
 Co 415, 416 
 
 Oriental Colliery Co., Limited . 473 
 Oriental Commercial Bank . . 549 
 Oriental Hotels Co. . 444, 481, 516 
 Oriental Island Steam Co. . . 525 
 Oriental Telegram Agency . . 487 
 Original Hartlepool Collieries Co. 451, 
 
 497 
 Ornamental Woodwork Co. r. 
 
 Brown 116 
 
 Orton V. Cleveland Firebrick Co. 143 
 Orwell Oyster Fishery, Limited . 525 
 Osbom V. Derbyshire, &c., Co. . 491 
 Ottoman Bank v. Farley . 143, 145 
 Ottoman Co., Limited . . 443, 458 
 Overend, &c., v. Gurney 180, 484, 485 
 Overend, Gurney, & Co. v. Gibbs 2, 82 
 
 152, 399 
 Owen's Patent Wheel . . . 380 
 Oxford Building Society 447, 540, 546 
 
 Paget V. Griffith . 
 Pagin and Gill's Case . 
 Panama Co., Limited . 
 Panama Co. v. India 
 
 Co 
 
 Paragon Co. 
 
 Parkgate Wagon Co. . 
 
 Parker, Ex })arte . 
 
 V. Lewis 
 
 V. McKenna 
 
 Paris Skating Rink Co., lie 
 
 P. 
 Padstow Total Loss 
 
 91 
 
 PAGE 
 
 . 555 
 . 13 
 
 . 256, 260 
 Rubber 
 
 . 240 
 
 . 493 
 
 508, 566, 589 
 
 . 400 
 
 . 145 
 
 . 143, 145 
 
 133, 522 
 
 ; r. Lord 
 
 Monson 403 
 
 Parson's Case . . . .126 
 Patent Cocoa Fibre Co. 376, 423, 509 
 Patent File Co., In re, 83, 84, 131, 187, 
 
 259 
 Patent Screwed Boot and Shoe Co., 
 
 He 420 
 
 Patent Ventilating Co. . . 372 
 
 Pearce & Co. ... 60, 188 
 
 Pearson's Case 128, 145, 237, 363, 507, 
 
 511 
 Peek v. Gurney . . . 234, 235 
 
 V. Trimsaran Co. . 408, 409 
 
 Peel's Case . 68, 70, 71, 232, 241, 245 
 Pellatt's Case . . . 246, 247 
 Pemberton r. Topham . . 364 
 
 Pender i: Lusliington 124, 137, 193, 
 366, 367, 368, 396 
 Penerley Mining Co. . . . 492 
 Penhale & Lomax Co. . . 383 
 
 Peninsular Co. v. Fleming . . 69 
 Penn v. Lord Baltimore . . 257 
 Penney, Ex imrte . . .125 
 
 Pennington v. Bachr . . . 263 
 
 Pen-y-vanCo 382 
 
 People's Coal, &c., Co., Limited . 525 
 Percy & Kelly, &c., Co. . . 432 
 Perry r. Glutton Coal Co. . 404, 410 
 
 V. Oriental Hotels Co. 408, 409 
 
 Peruvian Railways Co., In re 68, 86 
 
 V. Thames, 
 
 &c 68 
 
 Petersburg Gas Co. . . . 528 
 Pet re v. Petre .... 240 
 PhilUps V. Foxall . . . 330 
 Phcenix Bessemer Co.'s Case 68, 112, 
 
 261 
 Phoenix Co., Re . . . .136 
 
 V. Sheridan . . 306 
 
 Phosphate Sewage Co., In re . 437
 
 TABLE OF CASES. 
 
 Phosphate Sewage Co. v. Hart- 
 
 mont . . . 238, 239, 389 
 
 Photographic Co. . . . 403 
 
 Pickard v. Sears . . 232, 252, 253 
 Pickering v. Stej)henson . .168 
 Piercy v. Young .... 22 
 Pinkett v. Wright . . .123 
 Pinto Silver Mining Co. . . 545 
 
 Phmet, &c., Co 500 
 
 Plas-yn-Mho^vJ^s Co. . . . 496 
 Plaskynaston Tube Co. . 39, 372 
 Plating Co. v. Farquharson . .215 
 Plynipton Mining Co. i\ Wilkins, 
 
 &c 390 
 
 Pollard, Ex 2)artc . . . .257 
 Pontifex's Case . . . .402 
 Poole Firebrick Co., Lire 310, 525,541 
 Pope & Pearson .... 200 
 Portland Cement Co. . . . 373 
 Portuguese Contract Co. . . 503 
 Positive Government Security Life 
 
 Assur. Co., Limited . . 371, 373 
 Power V. Hoey . . . .168 
 
 V. O'Connor , . . 168 
 
 Preston v. Llelville . . .159 
 Price V. Anderson . . .159 
 Printing, &c., Co. v. Sampson . 16 
 Pritchard's Case . .11, 12, 30, 115 
 Public Supply Association, In re . 507 
 Puckle's Case . . . .125 
 'Pnlhrodk, Ex 2Mi-te . . .516 
 
 V. New Civil Service 
 
 Co-op. . 8, 87, 191, 195 
 
 V. Richmond Co. . 61, 366, 
 
 395, 400 
 
 Q. 
 
 Quartz Hill Co. . 215, 419, 501 
 Queen v. Aspinall . . 240, 248 
 V. Government Stock In- 
 vest. Co. . 136, 191, 396 
 
 V. Gurney & others . . 236 
 
 ■ V. Morton .... 224 
 
 r. "Wimbledon Local Board 136 
 
 Quilter r. Heatley . . .504 
 
 R. 
 
 Railway Share Trust, In re . 372 
 
 Steel & Plant Co., Ex 
 
 inirie 507 
 
 Ramsgill Miniu" Co. . . . 454 
 
 PAGE 
 
 Ranby, Ex imrtr. .... 50 
 Ranee's Case . . 158, 170, 507 
 Randall v. Thonipson . . 22, 24 
 
 Ranger v. Great Western Railway 233 
 Raymond v. Tapson . . .501 
 Rayner v. Preston . . .310 
 Redgrave v. Hurd . 232, 242, 362 
 Reese River Silver Mining Co. v. 
 
 Smith 234 
 
 Regent's Canal Co. 149, 451, 481, 516 
 Canal Iron Works Co., 
 
 Ex imrte Grissell . 539 
 Canal Iron Works Co., 
 
 In re . . 131, 261, 444 
 
 United, &c., Co. 
 
 Regina v. Catholic Co. 
 
 v. Marquita 
 
 V. Newton 
 
 r. Tewkesbury 
 
 Retford Waggon Co., Limited 
 Reynard v. Arnold 
 Reynolds v. Accidental Death Co. 
 V. Arnold 
 
 353 
 133 
 
 160 
 
 133 
 
 146 
 
 473 
 
 311 
 
 315 
 
 . 309 
 
 . 61 
 
 376, 381, 422 
 
 . 496, 584 
 
 . 121 
 
 Rhodes v. Forwood 
 
 Rica Gold Co., In re 
 
 Richards, In re . 
 
 Rigg's Case . 
 
 Rio Grande, &c., Co., Limited 496, 526 
 
 RiscaCoalCo 520 
 
 River Plate, &c., Co. . . .434 
 Roberts, Goodchap v. Roberts, 
 
 In re ..... 265 
 
 Robinson v. Ashton . . .170 
 Rocke, Ex parte .... 490 
 Rodewald v. Wayne's Co. . 407, 409 
 
 Rolfe, Re 22 
 
 'B.oli, Ex farte . . .' .117 
 Romford Canal Co. . . 254, 272 
 Roney's Case . . . 120, 151 
 Roots V. Snelling . . . .232 
 Rose & Co. V. Gardden Lodge Coal 
 
 Co 490, 535 
 
 Ross V. Estates Investment Co. 33, 57, 
 231, 257, 388 
 
 V. Gutteridge . . .239 
 
 Rossiter v. Trafalgar Co. . .148 
 Rouse V. Meier ... 22, 23 
 Routh V. Webster . . .244 
 
 Rowe, Re 425 
 
 Rowland's Case . . 12, 13, 224 
 
 Royal Bank of India's Case 4, 68, 82, 
 
 155
 
 TABLE OF CASES. 
 
 PAGK 
 
 Koyal British Bank . . .523 
 
 V. Turqiiaud 115 
 
 131, 146, 187, 260 
 
 Victoria Palace, Tlieatre 
 
 Syndicate . . . ■ 465 
 
 Euabon Coal Co., Limited . . 449 
 Kumball v. MetroiDolitan Bank 254, 277 
 Riissell V. Russell . . • 179 
 
 V. "Wakefield Waterworks 171, 
 
 364, 365, 367, 399 
 Ryhope Colliery Co. . . 221, 222 
 V. Foyer . 336 
 
 Sahlgreen & Carrall's Case 
 
 
 156 
 
 St. George's Advance Co. 
 
 
 525 
 
 St. Josepliberff Cojiper Co. . 
 
 
 466 
 
 St. Nazaire Co. . 
 
 
 464 
 
 St. Thomas Dock Co. . 
 
 379, 
 
 422 
 
 Sands v. Thompson 
 
 
 239 
 
 Sanger's Case 
 
 
 124 
 
 Sanitary Carbon Co., In re . 
 
 
 135 
 
 Sankey Brook Coal Co. 
 
 
 261 
 
 Sargent, Ex imrte 
 
 125 
 
 400 
 
 Saturn, &c., Co. . 
 
 502 
 
 506 
 
 Scadding v. Lorant 
 
 
 134 
 
 Scholey v. Central Co. 
 
 
 211 
 
 Scilly Islands Telegraph Co. 
 
 
 495 
 
 Scott V. Avery 
 
 
 24 
 
 V. Lord Eljury 
 
 
 2 
 
 Scottish Petroleum Co. 116, 
 
 143, 
 
 149, 
 
 210, 
 
 232 
 
 245 
 
 Scovell's Co. 
 
 
 379 
 
 Severn Junction Radway Co. 
 
 
 475 
 
 Sewell's Case 
 
 199 
 
 402 
 
 Shackleford, Ford & Co. r. Danger- 
 
 
 field 
 
 
 201 
 
 Sharp V. Dawes . 
 
 118 
 
 135 
 
 Sharpe, In re 
 
 
 494 
 
 Sharpley v. Loirth & East C( 
 
 )ast 
 
 
 Railway Co. .' . 116, 
 
 211 
 
 232 
 
 Shaw, Ex parte . 
 
 
 400 
 
 V. Benson . 
 
 
 91 
 
 V. Rowley . 
 
 
 119 
 
 V. Simmons 
 
 
 91 
 
 Sheard, Ex parte . 
 
 
 447 
 
 Sheffield Nickel Co. v. Unwin 
 
 
 18 
 
 Purchasers ^^o 
 
 
 533 
 
 Shilling V. Accidental Death Co. . 
 
 315 
 
 Shirretf's Case 
 
 
 61 
 
 PAGE 
 
 Shropshire Union, &c., Co. v. The 
 
 Queen ..... 224 
 Silber Light Co. . . . 501, 563 
 Silkstone Co., In re . 504, 505, 529 
 Silver Valley Mines 383, 516, 517, 520 
 Simm V. Anglo-American Tele- 
 graph Co. .... 224 
 Simpson v. Accitlental Death Co. 316 
 
 V. Westminster Palace 
 
 Hotel Co 367 
 
 Simpson's Case .... 246 
 Sinclair v. Maritime Passenger Co. 315 
 Su' John Moore Gold Mining Co., 
 
 In re ... 447, 506, 540 
 
 Sir E. Pearson's Case . . .128 
 Slater v. Darlaston, &c., Co. . 409 
 
 Smith, Ex iHirte .... 516 
 
 V. Accidental Insurance Co. 315 
 
 V. Anderson . . 91, 96 
 
 V. Chad wick . 234, 235, Add, 
 
 V. Duke of Manchester 154, 168 
 
 V. Hull Glass Co. . .187 
 
 V. Sorb}' .... 241 
 
 V. Wells . . . .419 
 
 Smith's Case . 231, 232, 244, 400 
 
 Smith, Ward & Co. . . .406 
 
 Snell, In re 263 
 
 Societe, &c. v. Tilghman's Co. . 17 
 Solors. General Society r. Laml> . 306 
 South Barrule Co. \ . 384, 543 
 
 ■ Devon, &c., Association . 438 
 
 Durham Co. v. Shaw . 393, 403 
 
 Durham Iron Co. 262, 478, 516 
 
 of France Lime Co. . . 525 
 
 of Ireland Colliery Co. r. 
 
 Waddle. . ^ . . 4 
 
 Llanharran Co. . . 18 
 
 Wales Atlantic, &c., Cu. . 474 
 
 Southall V. British Mutual Life 
 Assurance Soc. 145, 555, 557, 559 
 563, 576 
 Southport V. West Lancashire 
 
 Banking Co 570 
 
 Southsea Floral Hall Co. . . 462 
 Sovereign and Belgian Stores Coal 
 
 Co 465 
 
 Spacknian v. Evans . . 120, 161 
 Spargo's Case . . . 12, 13 
 
 Stace & Worth's Case . . 142, 576 
 Stanhope Silkstone Collieries Co. 480 
 Stanley's Case . . . 261, 310 
 Star Rolling Mills Co., Limited . 421
 
 xl 
 
 TABLE OF CASES. 
 
 I'ACJE 
 
 State Fire Insurance Co. . . 301 
 
 Steel's Case 247 
 
 Steele v. Harmer .... 87 
 Stevenson v. Maclean . . . 247 
 Stewart, £■« jMirfe . . .117 
 
 Stewart's Case . . . .400 
 Stocken's Case . . .119,122 
 Stokes V. Cox .... 309 
 Stockton, In re . . • .123 
 
 Iron Furnace Co., In re, .520 
 
 Malleable Iron Co. 124, 1 25 
 
 Stoker v. Brocklebank, &c., Co. . 61 
 Stone V. City and County Bank, 232, 529 
 Storfortli Lane Colliery Co. . 419 
 
 Strand Music Hall, In re . 131, 261 
 Stranton Iron Works . .138, 400 
 
 Steel and Iron Co. . 124 
 
 Stringer's Case, 125, 155, 170, 172, 507 
 Strong V. Harvey . . .310 
 Stuart V. Norton . . . .134 
 Stuart's Trusts . . . . 18 
 Stubbs V. Lister . . . .121 
 
 Si;clie&Co 469 
 
 Sulley V. Attorney- General . . 222 
 Sullivan v. Mitcalfe . . . 243 
 Sutton V. Accidental Death Co. . 315 
 Sutton's Trusts .... 307 
 Swan's Case .... 504 
 
 Swiss Times Co 487 
 
 Syers v. Brighton Brewery Co. . 68 
 Sykes v. Beadon . . . . 270 
 
 Sykes' Case 120 
 
 Synion's Case . . • .126 
 
 T. 
 
 Tahiti Cotton Co. . . .117 
 Talbot V. Earl of Shrewsbury . 160 
 Taurine Co., Limited . 124, 150, 458 
 Tavarone Mining Co. . . . 525 
 Taylor v. Aston .... 234 
 
 V. Canadian Oil . . 414 
 
 V. Caldwell . . . 316 
 
 V. McKeand . . . 259 
 
 V. Midland Railway Co. . 117 
 
 ■ V. Railway Steel and Plant 
 
 Co 494, 496 
 
 Tea Co., In re The . . 434, 457 
 Teasdale's Case . . 154, 193, 194 
 Tecoma Silver Mining Co. . . 425 
 Tees Bottle Co 125 
 
 PAGE 
 487 
 
 61 
 188 
 374 
 494 
 317 
 
 Teignmouth, &c., Co. . 
 Telegraph Despatch Co. v. McLean 
 Terrell v. Hutton 
 Thames & Channel Steamship Co. 
 Thames Steam Ferry . 
 Theobald ;;. Railway Passenger Co. 
 Thermo-Electric Generator Co., 
 
 Limited ..... 438 
 Thomas v. Elson .... 520 
 Thos. W. Booker & Co., In re, 449, 450, 
 
 486 
 Thompson v. Anderson . . 22 
 
 r. Hudson . . . 267 
 
 V. Universal Salvage 
 
 Co 87 
 
 Thorne v. Patent Lionite . . 490 
 Tillett V. Charing Cross Railway . 26 
 Times Life Assuranee Co., Be . 423 
 Tinfoil Decorative Co. . . . 487 
 Tor^rngton, Ex 2)C(.rte . . .471 
 Totterill v. Fareham Brick Co. . 149 
 Totty, ^x ^;arie . . . .511 
 Touche V. Metropolitan Co. . 153 
 
 Towcaster & Co 424 
 
 Trades Bank . . . .419 
 Trew V. Railway Passengers Co. . 315 
 Trimsaran Coal Co. . . . 589 
 Trower & Lawson's Case . . 504 
 Trueman's Estate . . 516, 539 
 Turquand, Ex 2Mrte, Fothergill, 
 
 In re ... 50 
 
 V. Kirby . . .465 
 
 V. ]\Iarshall . . .399 
 
 Twycross v. Grant 235, 236, 237, 238, 
 
 243 
 
 U. 
 Union Bank of Kingston-upon- 
 
 Hull, In re . . 542, 557 
 
 ~ Hill Silver Co. . . 163 
 
 • Manufacturing Co. . . 402 
 
 Trust . . . .423 
 
 United Kingdom Electric . . 494 
 
 States Cable Co. . . 558 
 
 Service Co. . . . 380 
 
 Universal Non-Tariff Co. . . 309 
 Universities Corporation . . 517 
 Upton V. Brown . . . .419 
 Uruguay, etc.. Railway Company, 41, 
 
 214, 379
 
 TABLE OF CASES. 
 
 xli 
 
 V. 
 
 rAGK 
 
 Van United Mining Co. . . 526 
 Vance v. East Lancashire Railway 
 
 Co 610 
 
 Vander v. Ashwell . . . 485 
 Vickerman v. Bonvilles Co. 413, 455 
 Vickers v. Vickers ... 26 
 Victoria & Fenton Co. . .514 
 
 Vining's Case .... 558 
 Volunteer Co-operative Co. . . 548 
 Von Heyden v. Neustadt . . 17 
 Vron Colliery Co. . . 495,496 
 
 W. 
 
 Waddell I'. Wolfe ... 8 
 Wain r. Walters . . . .11 
 Walkham United Mines . . 423 
 
 Walker, i?c 23 
 
 V. Banagher Distillery Co. 535 
 
 V. London Tramways Co. 155, 
 
 193 
 
 V. Mottram ... 25 
 
 Wallingford v. Mutual Society 267, 270 
 AVandswortli, &c., Co. r. Wright . 137 
 Ward & Henry's Case . . . 400 
 Ware v. The Grand Junction 
 
 Waterworks Co. ... 88 
 Warner & Powell's Arl)itratiou 22, 23 
 Warrant Finance Company's Case 469 
 
 Wasland Co 432 
 
 Waters v. Monarch Co. . . 310 
 
 Watford, &c., Kailway Co. r. Lon- 
 don & North Western Railway 
 Co. . 
 Watney v. Musgro\e 
 Watson I'. Beavan 
 
 V, Cave . 
 
 r. Eales . 
 
 Watson, Kipling & Co. 
 Wayne's IMerthyr Steam 
 
 Co 
 
 Wear Engine Works Co., In re 
 Wearmouth Co. . 
 Webh V. Earle . 
 V. Heme Bay 
 
 24 
 
 222 
 
 22 
 
 364 
 
 119 
 
 478 
 
 sioners 
 V. Whiffin . 
 
 Coal 
 
 . 452 
 376 
 . 478 
 . 181, 195 
 Commis- 
 153, 252, 272 
 . 516 
 
 Wuhster's Case 
 Wedgwood Coal Co., In re, 
 
 PAGE 
 
 . 122 
 168, 463, 
 508, 584 
 . 534 
 . 132 
 93, 234 
 In 
 
 Wednesbury Newspaper Co. 
 
 Weeks v. Propert 
 
 Weir V. Barnett . 
 
 Welsh Flannel & Tweed Co., 
 
 re 119 
 
 Welsh Steam Coal . . .513 
 Wescomh's Case .... 520 
 West V. Baker .... 50 
 West of England Bank 454, 457, 460, 
 467, 478, 479, 514 
 
 V. Booker 83 
 
 V. March 359 
 
 West Hartlepool Iron Works Co., 
 
 In re ... 379, 383, 427 
 West India & Pacihc Steamship 
 
 Co., In re .... 
 
 Westbourne Grove Drapery Co. . 
 Western Benefit Society 
 
 Brazilian Co. . 
 
 of Canada Oil, &c., Co. 
 
 371 
 545 
 420 
 495 
 379, 
 438 
 473 
 
 District Bank 
 
 Westminster Association v. Up- 
 ward 490 
 
 Weston's Case . . .123, 363 
 Wethered r. Yniscedwyn Co. . 409 
 Whaley Bridge Co. v. Green 237, 239 
 Whitaker v. Robinson . . 494 
 
 White's Case . . . 12,13 
 
 White V. British Empire Co. . 306 
 
 White Star Co 422 
 
 Whitehouse, In re 211, 232, 532, 533, 
 
 542 
 Whiteley Partners, In re . 210, 247 
 Whitewash Paper Co. . . . 523 
 Whitfield r. South Eastern Rail- 
 way Co 98 
 
 Whitworth's Case . . . 505 
 Whittingham v. Thornborough . 307 
 Williams, Ex imrte 115, 241, 475, 480, 
 
 494 
 
 V. Carwardine . . 252 
 
 V. Hathaway . . 3 
 
 r. Hopkins . 469, 473, 474 
 
 V. St. George's Harbour 
 
 Co. . . .115 
 1'. Railway Steel, &c , 
 
 Co. . . .494 
 
 V, Stern . . .123 
 
 d
 
 xlii 
 
 TABLE OF CASES. 
 
 PAUE 
 
 Wills V. Murray . . . .134 
 Wincham Shipbuilding Co., In re 120, 
 
 517 
 Wilson V. Church . . .364 
 
 V. Duckett . . .307 
 
 V. Lord Bury . .168, 399 
 
 Wing V. Harvey .... 309 
 Winspear v. Accident Co. . . 315 
 Withernsea Co. . . . 469, 480 
 Woolaston's Case . . .121 
 
 Woollen Trade Association . . 384 
 Woolley V. Colman . . .410 
 Working Men's Mutual Society . 501 
 Wreck Recovery Co., In re . . 450 
 Wright's Case . . . .442 
 
 PAGE 
 
 Wye Valley Railway Co. v. Hawes 171, 
 
 172, 366 
 Wynne's Case .... 87 
 
 Yate Collieries, In re . . . 376 
 Yelland's Case . . . .61 
 
 Yniscedwyn Co 495 
 
 Yorkshire, &c., Co. . . .160 
 
 Fibre Co. . . .499 
 
 Civil Service Supply 
 
 Association, Limited 491 
 
 Z. 
 
 Zulueta's Claim . 
 
 88
 
 NOTES OF SOME EDITIONS CITED, AND 
 ABBREVIATIONS. 
 
 Buckley on the Law and Practice under the Companies Acts, 4th Ed., is 
 cited as " Buckley." 
 
 Dart's Vendors and Purchasers, 5tli Ed., 1876, is cited as " Dart, V. P." 
 
 Law Reports. The Chancery Appeal cases and the E(|uity cases are cited 
 as « Ch." and " Eq." simply. 
 
 Law Reports : New Series. In citing these reports the notation Div. 
 (e.g., 1 C. Div.) denotes a decision of the Court (jf Appeal, Avhile the 
 decisions of the Courts of first instance are referred to as 1 C. D., 2 Q. B. D. 
 and the like. 
 
 The 4th Ed. of Mr. Justice Lindley's work on Partnership and Com- 
 panies. 
 
 The 2nd Ed. of Mr. Pollock's work on Partnership. 
 
 Seton on Decrees, 4th Ed., 1877—1880. 
 
 The Companies Act, 1862 (2.5 & 26 Vict. c. 89) is sometimes cited as 
 " the Act of 1862 " and " the Act." 
 
 The Companies Act, 1867 (30 & 31 Vict. c. 131) is sometimes cited as 
 " the Act of 1867." 
 
 The Companies Acts, 1862 and 1867, are sometimes cited as "the Acts of 
 1862 and 1867." 
 
 The Joint Stock Companies Arrangement Act, 1870 (33 & 34 Vict. 
 c. 104) is sometimes cited as "the Act of 1870." 
 
 The Companies Act, 1877, is sometimes cited as " the Act of 1877." 
 
 The Rules of the Supreme Court, 1883, are sometimes referred to as " the 
 Rules of 1883," and sometimes thus, "Order , r. ." 
 
 In citing orders reference is made to the Ijooks kept by the Registrars 
 of the High Court, as in Seton.
 
 ADDENDA AND ERRATA. 
 
 Page 66. — See London Financial Association v, Kclk, W. N. 1884, 67, as to 
 construction of objects. 
 
 „ 83. — In Form 44 omit the word "other." 
 
 „ 96. — Line 20 from bottom, read "generation "for "generative." 
 
 „ 125.— France v. Clark, now reported in 32 W. E. 466 ; 5 L. T. 1. 
 
 „ 134. — Isle of JFirjJit By. Co. v. Tahourdin, now reported in 25 C. Div. ; 
 50 L. T. 131. 
 
 „ 141. — Clause 84 : Add. reference to York Tramways Go. v. J-Villows, 
 8 Q. B. D. 685. 
 
 „ 142. — Brett's Case, now reported in 25 C. Div. 283. 
 
 „ 172.— C. Denlmm d; Go. is reported in 32 W. R. 487. 
 
 „ 234 et scq. — Smith v. Chachvick, affirmed by Houi~e of Lords, W. N. 
 1884, 49. 
 
 ., 262.— Br ocklelnirst v. Railicay Printing Co., W. N. 1884, 70; 28 
 S. J. 358 ; 76 L. T. 353, as to operation of Bills of Sale Act, 
 1882, on debenture trust deed. 
 
 „ 372.— Last line, read " the " for " this." 
 
 „ 409. — Elkins v. Capital Guarantee Soc. was before the Ct. of Appeal, 
 11 Jan., 1884. In line 23 from top, insert "order" after 
 supervision. 
 
 508. — Re Milan Tramrmys Co., now reported in 25 C. Div. 587.
 
 COMPANY PEECEDENTS. 
 
 AGEEEMENTS. 
 
 INTRODUCTORY NOTES. 
 
 Beforp; conimenciiio- lousiness, a company, in most cases, adopts, or Preliminary 
 enters into a "preliminary contract" for the purchase of a specific *'°''*''''*^^ """^^ 
 property, e.g., a mine, a patent, a business, a concession, or an estate, 
 and seyeral of the following forms of agreement are precedents of such 
 contracts. AAHiere there is to be a preliminary contract, one or other of 
 the following plans is usually adopted : — 
 
 Plan 1. — Before the incorporation of the company, the promoters Plan 1. 
 procure the owner of the property to enter into an agreement with some 
 })erson, on behalf of the intended company, for the sale of the property 
 to the company upon certain terms and conditions. The memorandum 
 and articles of association of the company are settled, with the concur- 
 rence of the vendor and of the promoters, contemporaneously with this 
 agreement. In the articles is inserted a clause referring to the agreement 
 [see infra, Form 117, cl. 3], and authorising the directors to adopt and 
 carry it into effect. The memorandum and articles are then registered, 
 and the registrar issues his certificate, whereupon the company l)ecomes 
 incorporated. Shortly after the incorporation the directors hold a 
 meeting at which the preliminary agreement is taken into consideration, 
 and a resolution jjassed for its adoption, Notice of the adoption is Supplemental 
 subsequently given to the vendor, and in due course the adoption is '^o^^^^^g* 
 eftected by means of a brief supplemental agxeement, to which the executed, 
 vendor, the agent, or trustee, and the company are parties, whereby the 
 original agreement is rendered binding on the company. [See form of 
 siich agreement, infra, p. ;}0.] The adopting agreement is necessary, 
 because it has been held that a company cannot ratify a contract made 
 on its behalf before its incorporation. Emjyress Engineer inri Co.,lQQ. 
 Div. 125, and see note to Clause 3 of Form 117 and Form 139. 
 
 Plan 2. — Before the incorporation of the company an agreement, piau 2. 
 expressed to be made between the vendor and the company, for the sale 
 of the property to the company, is, with the privity of the vendor and 
 the promoters, prepared. The memorandimi and articles are at the same 
 
 B
 
 AGREEMENTS. 
 
 Plan 3. 
 
 Reasons why 
 Plan 1 pre- 
 ferred. 
 
 Eest course. 
 
 Personal 
 liability of 
 person con- 
 tracting on 
 fcehalf of a 
 company not 
 yet fonued. 
 
 Agreement 
 fihould be 
 framed so that 
 his liability 
 
 time ])rcparcd and settled with the like privity. In the articles is 
 inserted a clause [see infra, p. 115] referrinu' to the agreenient and 
 authorising or re(|uiring' the directors torthwith to athx the seal of the 
 company thereto, or declaring that the company shall forthwith execute 
 the agreement. The memorandum and articles are then registei'ed, and 
 the registrar issues his certificate. Ki the first meeting of the directors 
 the agreement is taken into consideration, and a resolution passed for 
 its adoption. The vendor is informed of the resolution, and a day 
 appointed for comiiletion, when the agreement is executed and in due 
 course carried into eiFect. 
 
 Plan 3. — This plan only differs from Plan 2 in one respect, namely, 
 that the articles do not expressly refer to the agreement, but authorise 
 the directors to jinrchase the property on such terms and conditions as 
 they think fit. These general powers are (|uite as effectual as an 
 authority to adopt or enter into a specific agreement. Ovcrmd cj- Gvrney 
 Co. V. Gihh, L. E. 5 H. L. 4(^0. But the other plans are generally 
 adopted. 
 
 Plan 1 is sometimes preferred because : (d) Before going to the expense 
 of forming the comiDany, the promoters may desire to have the vendor 
 bound to sell on specified terms. This reason does not apply where the 
 vendor is the promoter, or where the promoters arc in a position to 
 dictate to him. (J) The promoters may desire absolutely to bind the 
 company to acquire the property upon the terms arranged liy them 
 before its incorporation. With a view thereto, the terms are embodied 
 in a contract as in Plan 1, and in the articles a clause is inserted direct- 
 ing the directors to carry the contract into effect. Promoters sometimes 
 think, and perhaps rightly, that, if the contract has already been 
 executed and only waits for adoption, the directors will be less likely to 
 raise questions as to the terms fixed than would otherwise be the case. 
 But it nn;st not be supposed that any such clause can bind the directors, 
 or that it releases them from the obligation to consider whether or no 
 the adoption of the contract is for the company's benefit. 
 
 Whenever there is no particular reason for adopting Plan 1, it is 
 expedient to adopt Plan 2 or 3, for by the adoption of either of those 
 plans, the company becomes bound in due course without any appearance 
 of the contract liaA'ing been forced on it, and without the necessity for 
 an adopting contract. See the notes to Forms 117, el. 3, and 131), infra. 
 
 Where, as in Plan 1, a person purports to contract as agent for a 
 company not yet formed, he is, in the absence of a provision in the 
 contract to the contrary, personally liable on the contract. Kelnor v. 
 Easier, L. R. 2 C. P. 174. 
 
 Nor is he relieved from liability by the subsequent adoption of the 
 contract by the company. Scott v. Lord Elnirij, L. R. 2 C. P. 2iu}. 
 
 It is, however, seldom or never the intention of the parties tiiat the 
 agent should be so liable, and accordingly, the agreement is so framed 
 that his liability will be merely nominal. This is effected as foUoMs : 
 The agent agrees that the company shall purchase the property ; a future
 
 INTRODUCTOEY NOTES. 
 
 clay is fixed for the coni]tletion of the purchase ; it is provided that upon should be 
 
 merely 
 nominal. 
 
 the adoption of tlie agreement by the company, the liability of the agent "lereiy 
 
 shall cease, and that if the company does not adopt the agreement before 
 a certain day (prior to the day fixed for completion), the agent may at 
 any time afterwards rescind it. The effect of these prdvisions is, that if 
 the company adopts the agreement, the agent is freed from liability, and 
 if the company does not adopt it in due course, the agent, before the 
 time fixed for completion, rescinds the agreement, and thereby termi- 
 nates his liability before he has had to do anything under the 
 agreement. 
 
 A proviso thus Tnniiiiuj the liability of the so-called agent is valid ; Pi-oviso limit- 
 but, not uncommonly, it is provided that he shall incur no 2^<'rsonaV^°^^^^!'J^l^ 
 responsihility whatever. Such a proviso is treated as repugnant and "ccus, if pur- 
 void, the result being that the agent is personally l)ound to perform the j^eHevtfliim 
 contract. See FurniraU \. Coomlcs, ."i ]\I. & Gr. 78ti, and Willianis v. from all 
 Hathaicay, G C. D. 544. ^^^^^"'^"• 
 
 "When a company is started to acquire a specific property, and the Power to 
 capital is to be raised by public subscription, it is not unusual so to ^■^•^ci"'^- 
 frame the agreement for the purchase of the property, that if within a 
 fixed period a certain number of shares are not taken, the company can 
 rescind. The object of course is, that if the com})any should fail in 
 raising the funds necessary to enable it to commence business, it may be 
 able to get rid of the agreement. Sometimes a similar power is gi^•en 
 to the vendor, for he may not l)e willing to sell to a com})any which has 
 not the means to develop a prdyterty for which he is probably to be paid 
 partly in shares ; or his own right t(j sell may be contingent on a certain 
 number of shares being taken up. 
 
 As to filing ^agreements in'oviding for the issue of paid-up shares, Filing con- 
 section 25 of the Act of 1.SG7, provides that — 
 
 ti-acts as to 
 issue of imid 
 up shares. 
 
 Every share in any company shall he deemed to have heen issued, and to he 
 held, subject to the ixiyment of the whole amount thereof in cash, unless the 
 same shall have been otherwise determined by a contract duly made in writing 
 and filed with the registrar of joint stock companies at or before the issue of 
 such shares. 
 
 Accordingly, whenever an agreement provides for the issue of ])aid-up 
 or partly paid-up shares as the consideration or part of the consideration 
 for property or rights sold or services rendered to the company, the 
 agreement should be duly filed pursuant to the above section before the 
 shares are allotted, otherwise the allottee will be liable to pay the nominal 
 amount thereof in cash. Sec further as to this section, infra, p. lo. 
 
 As to what contracts of a company must be under seal. Se:tion 37 of 
 
 By s. 37 of the Comi)anies Act 1M(;7, it is provided as follows : — ^^^ °*^ ^^5''^ =^* 
 
 '' 1 ' i to contracts. 
 
 Contracts on behalf of any company under the principal Act may be made as 
 follows, that is to say, — 
 
 (1.) Any contract which, if made between private persons, would be by law 
 required to be in writing, and if made according to English law to be 
 \inder seal, may be made on behalf of the company in writing under 
 
 B 2
 
 4 
 
 AGEEEIklENTS. 
 
 the common seal of the company, and such contract may be in the 
 same manner varied or discharged : 
 (2.) Any contract which, if made between private persons, would be by law 
 required to be in writing and signed by the parties to be charged 
 therewith, may be made on behalf of the company in writing, signed 
 by any person acting under the express or implied authority of the 
 company, and such contract may in the same manner be varied or 
 discharged : 
 (3.) Any contract which, if made between private persons, would by law be 
 valid although made by jjarol only, and not reduced to writing, may 
 be made by parol on behalf of the company, by any person acting luider 
 the express or implied authority of the comi^any, and such contract 
 may, in the same way be varied or discharged : 
 And all contracts made according to the provisions herein contained shall be 
 effectual in law, and shall be binding upon the company, and their successors,' 
 and all other parties thereto, their heirs, executors, or administrators, as the 
 case may be. 
 
 Effect. 
 
 Constniction 
 of Section 37. 
 
 Authority of 
 agent. 
 
 Contracts 
 witliout sen] 
 
 Form of con- 
 tract to be 
 executed on 
 behalf of a 
 comijany. 
 
 This statutory power, it will be ol)served, applies to all companies 
 registered under the Act of 18G2, and hy virtue of it all such comi)anies. 
 may, except as regards the contracts specified in Sub-section (1), con- 
 tract without seal. The power may, of course, be qualified by the 
 articles of association. 
 
 As to who is a "person acting under the express or implied authority 
 of the company," under 8ul)-sections (2) and (3) of the al)Ove Section : — 
 
 This will depend on the regulations of the company. Generally 
 speaking the directors have express or implied authority to enter into 
 all contracts necessary for carrying the objects of the company intO' 
 effect, and of course, a l)oard meeting can exercise the authority. If the 
 board appro\es of a contract the directors assembled thereat can sign 
 the contract on behalf of the company, pursuant to 8ul)-section (2), 
 In most companies the directors can delegate their powers, or any of 
 them, to committees consisting of such member or members of their 
 body as they think fit, and, where this is the case, the po^ver to enter 
 into a specific contract, or into contracts generally, can be vested in tlic 
 committee, and a contract signed by the committee will l)e binding. 
 Ho, too, where there is power to appoint agents, etc., or to delegate to a 
 manager or other person. See further as to who is a duly authorised 
 person. Beer v. Londoji and Paris Hotel Co., 2(i Eq. 412 ; Jlroirning v. 
 (ireat Ceniral Jlininf/ Co., 5 H. & N. 85G ; 2!) L. J. Ex. ;51)t) : Ji'oi/af 
 BanJc of Indices Case, 4 Ch. •J->2 ; Pe Land Credit Co., 4 Ch. 4(;0. As 
 to what contracts a trading company may make without seal ai)ai't from 
 the above enactment, see /■<oitfh of Ireland CoUienj Co. v. Waddle, Ij. E. 
 o C. P. 401) ; Pollock on Contracts, 133. 
 
 As to the form which a contract to be .signed on ])ehalf of a company 
 should take : — Suppose it to be a contract between A. B. and the conqiany. 
 It may be expressed to ha made {a) "between A. B. of the one part, and 
 the company of the other part," or {b) " between A. B. of the one ])art, 
 and C. J). [tJte person or persons ai'f/iorisrd lo eniir inio //], on behalf of 
 the company, on the other part." Tlie former is generally considered
 
 INTEODUCTORY NOTES. 5 
 
 the host plan, but they are equally effectual. Aggs v. Kicliulson, 1 H, & 
 N. Kif) ; •>:> L. J. Ex. ;548. 
 
 "Wliere Plan {a) is adopted tiie testimonium clause will run thus : "As 
 witness the hands of the said A. B. and of C. D. [E. F. and CI. H.], on 
 behalf of the company," or " in witness Avhereof the said A. B. and two 
 of the directors of the company on its behalf have hereunto set their 
 hands." 
 
 Of course no testimonium clause is necessary, and it will be sufficient 
 if the contract is signed thus : 
 
 A. B., 
 
 C. D., for the Company. 
 If the au'cnt is made party to the contract as in plan (h), the testi- 
 monium clause, if used, will run : "As witness the hands of the said 
 parties hereto the day, &c.," and the agent can, if he thinks it expedient, 
 ex aJjundaiiti rauteld, qualify his signature by jirefixing or adding words 
 showing his agency. Howe\'er, it is now' settled that where an agent Agent signing 
 enters into a contract on behalf of another, it is not essential, in order that f.°"V''"?r ^'^^ 
 
 . . liable if it 
 
 he may avoid personal responsibuity, to add any qualifying words to his appears on 
 si(inaturc, e.ii., "as agent for A. B.," or "on behalf of A. B.," or '• on ^'"-'^ °^, '^°'^,' 
 
 •^ "^ ° . „ tract that he 
 
 account of A. B.," or "for A. B." Prima fario if he signs without quali- signs as agent. 
 fication he is personally liable, but it is a question of intention, and if in 
 the body of the agreement he purport to contract "as agent," or "on 
 accoimt of," or "on behalf of," or "for" another, he will escape liability. 
 See Gadd \. Houghton, 1 Ex. Div, 3">7, decided by the Appeal Court. 
 
 As to stamps : — 
 
 An agreement not u/idr')- seal Qntcved into by or on behalf of a company stamps. 
 generally comes under the following heading in the schedule to the Stamp Agreement not 
 Act, 1870: "Agreement or any memorandum of an agreement made ^'^'^'■'^' '^^'''^• 
 in England or Ireland under hand only, or made in Scotland without 
 any clause of registration, and not otherwise specifically charged ^vith 
 any duty, Avhether the same lie only evidence of a contract, or obligatory 
 upon the parties from its being a written histriuneut," and accordingly 
 requires a Qd. agreement stamp. 
 
 By Section 36 of the Stamp Act, 1870, it is provided that the Adhesive 
 
 duty of Gd. upon an agreement may be denoted by an adhesive stamp, ^t*'"!'^- 
 
 W'hich is to lie cancelled ])y the person by whom the agreement is first 
 
 executed. 
 
 The mode of cancelling is prescribed by Section 24 of the Act, How to he • 
 1 ^ cancelled, 
 
 namely : 
 
 " An instrument, the duty ui^on which is required or permitted by law, to be 
 denoted by an adhesive stamp, is not to be deemed duly stamped with an adhe- 
 sive stamp unless the person required by law to cancel such adhesive stamp 
 cancels the same by writing on or across the stamp his name or initials, or the 
 name or initials of his firm, together with the true date of his so writing, so 
 that tlie stamp may Vje etfectiially cancelled, and rendered incapable of being- 
 used for any other instrument, or unless it is otherwise proved that the stamp 
 appearing on the instrument was affixed thereto at the proper time."
 
 AGREEMENTS. 
 
 Stamp for 
 agreement 
 under seal. 
 
 How company 
 should make 
 simple con- 
 tract. 
 
 "Wlietlier 
 agreement 
 can be a 
 conveyance. 
 
 The same section also provides that every jiersou who, being required 
 by law to cancel an adhesive stamp, wilfully neglects or refuses duly and 
 effectually to do so in manner aforesaid shall forfeit the sum of 1(»/. 
 
 As to stamping an agreement under ihe seal of a company : — 
 
 It is generally assumed that every agreement l)y a company under its 
 seal is a deed, and therefore if not otherwise specifically charged with 
 duty l»y the Stamp Act, 1S70, is liable as a "Deed of any kind whatso- 
 ever, not describi'd in this schedule" (Schedule to the Act), i.e. rciiuires 
 a lOs. deed stani}) : and this appears to be the correct view. This is the 
 view taken l)y the Commissioners of Inland Ilevenue, and accordingly 
 every contract under a company's seal to be filed with the liegisti'ar of 
 Joint Stock Companies must be so stamped before it can be filed. 
 
 Where a company desires to make a simple contract in writing, the 
 proper ])\im a})pears to be to procure it to be signed on behalf of the 
 company as above mentioned, p. 4. It will Ije just as binding as if under 
 seal, and no difficulty can then arise as to the stamp. 
 
 In settling an agreement for sale which has to l)e filed, care should be 
 taken that it does not operate as a conveyance so as to be chargeable 
 with the ad valorem duty upon conveyances on sale. It must be borne 
 in mind that by S. 70 of the Stamp Act, 1870, "The term 'Con^■eyauce 
 on Sale ' includes every instrument .... whereby any property upon the 
 sale thereof is legally or equitably transferred to or -s'ested in the pur- 
 chaser or any other person on his behalf or by his direction." Where 
 the agreement provides for payment of the consideration and completion 
 at some future time, and contains jirovisions as to making out title or 
 power to rescind, it cannot possibly be held a coiiveyance, but questions 
 do sometimes arise on carelessly drawn documents. And the registrar 
 is ])Ound under a penalty of 10/. to see that every document filed with 
 him is duly stamped, S. 22 of the Stamp Act, 1870.
 
 AGREEMENTS. 
 
 Agreement ivWi afjent for intended CoiiPANY for sale of Business of Form 1. 
 jMechaxical Exgixeer, including Leaseholds and Chattels. 
 ( 'onsidcration : Cash and Sluires. Vendor not to carry on similar 
 husiness. Power to rescind. 
 
 This is an example of the form of ao-reement commonly adoi)ted in Plan 1, 
 supra, 1^. 1. 
 
 AN AGREEMENT made the day of , between A., of Parties. 
 
 (hereinafter caUed tlie vendor) of tlie one part, and ]>., of , as 
 
 trustee for and on l)ehalf of the company hereinafter mentioned, of the 
 other part. AYhereas the vendor has for some time past carried on Recitals, 
 husiness as a mechanical engineer upon tlie leasehold hereditaments 
 hereinafter described : And whereas a company is about to l)e formed 
 under the Comiianies Acts, 18(;2 to lS8o, having for its objects among- 
 other things the acquisition and working of the said business : And 
 whereas the memoraiulum and articles of association of the company 
 have, with the privity of the vendor, Ijeen already i)repared (r/): And 
 whereas the nominal capital of the company is to be «0,oO()/., divided 
 into 10,(»0(» shares of 8/. each : And whereas by the said articles of 
 association it is jirovided that the directors of the company shall, 
 immediately after the incorporation thereof, adoi)t, on l^ehalf of the 
 company, and carry into effect an agreement therein referred to, being 
 these presents : Now it is hereby agreed as follows :— 
 
 (a) Sometimes the memorandum and articles have not been prepared when 
 the agreement is executed, and in such case the third and fifth recitals should 
 be omitted. 
 
 1. The vendor shall sell, and the company shall purchase : First, the Agreement for 
 leasehold hereditaments described in the schedule hereto, for the unex- ^^^^' 
 l)ired residue of a term of ninety-nine years therein granted by the Parcel 
 indenture of lease specified in the same schedule, subject to the rent 
 reserved by the said indenture of lease, and the covenants and con- 
 ditions therein contained, and on the lessees' part to be observed and 
 performed. Secondly, the steam-hammers, cranes, steam-engines, lathes, 
 and all other the plant, machinery, tools, stock-in-trade, chattels, and 
 effects, in or about the said premises firstly described. Thirdly, the 
 good-will of the said business, and all book and other debts due to the 
 vendor in connection with the said business, and the full benefit of all
 
 8 AGEEEMENTS. 
 
 Form 1. securities for sucli debts, and of all contracts, engagements, rights, and 
 ■ privileges, to ^vllicll the vendor is entitled in relation to the said 
 
 business. 
 Consideration, 2. The consideration for the said sale shall l)e the sum of 20,(h )()/., 
 shares^"^'^ which shall be paid and satished as follows ; namely, as to the sum of 
 4,0()OZ. in cash, and as to the residue by the allotment to the vendor, 
 or his nominee (?>) or nominees, of 1,500 fully paid up (c) shares in the 
 company of 8/. each, to Ite numbered (d) to inclusive. 
 
 (b) As to the validity of this, see infra, p. 11. 
 
 (c) As to the necessity for filing this agreement with the Registrar of Joint 
 Stock Companies, see infra, p. 10. 
 
 ((?) As to giving the numbers, see infra, p. 11. 
 
 Vendor's title o. The title of the ^•L■lKIor to the said leasehold hereditaments shall 
 to leaseholds, commence Vi'ith the said indenture of lease, [and the company shall not 
 call for the production of, or investigate or make any objection or 
 recpiisition in resjiect of the title of the lessors, or the right to grant 
 the lease, and the production of a receipt for the last payment of rent 
 which shall have accrued due under the said indenture of lease pre- 
 viously to the completion of the purchase shall be accepted by the com- 
 pany as conclusive evidence that all the covenants and conditions in the 
 lease have l)ecn performed and observed up to the completion of the pur- 
 chase, or that all lu'cachcs thereof, if any. have been waived {f)']. 
 
 (e) Stringent conditions as to title and evidence of title are rarely inserted 
 in agreements for sale to newly formed companies and in general the words in 
 brackets may be omitted in reliance on the Y. & P. Act, 1871, s. 2, and the Conv. 
 Act, 1881, s. 3. It is, however, conceived that those enactments do not prevent a 
 purchaser from raising an objection discovered oiiMftdc. See Waddell v. Wolfe, 
 L. K. 9 Q. B. olo. Occasionally a clause as follows is inserted: " If the com- 
 pany shall insist on any objection or requisition as to title, conveyance or 
 otherwise which the vendor shall be unable or on the ground of exi^ense, de- 
 lay or otherwise shall be unwilling to comply with, the vendor may, notwith- 
 standing any previous negotiation or litigation by notice in writing rescind 
 this agreement without giving rise to any claim for expense or otherwise." 
 
 Completion of ^- ^'I'G purchase shall l)e completed on the day of next, at 
 
 purchase. the officcs of Messrs. , the vendor's solicitor, when the company 
 
 shall pay the said sum of 4,0001., cash, to the vendor, or as he shall 
 
 direct (/). 
 
 (./") If the company is a public one, in which the capital has to be sought l>y 
 the issue to the public of a prospectus, some months Avill be allowed for com- 
 pletion. But if it is the conversion of a. private business into a company A\-ith- 
 out appeal to the public there need be no delay. However, in any event 
 sufficient time must be allowed to get the agreement filed pursuant to s. 25 of 
 the Act of 18G7. See infra, p. 10. 
 
 Allotment •"»• '''^it! comjjany shall also, on or before the said day of • 
 
 of shares. j^^xt, allot the Said 1,000 shares as hereinbefore provided. 
 
 When vendor (J. Uj^ou such payment and allotment as aforesaid being made the 
 
 to execute 
 assurances. 
 
 "cs &c ^^^^or shall, at the expense of the company, execute and do all such
 
 FOEMS. 9 
 
 assurances and things as may reasonably be required for vesting in the Form 1. 
 company the said prcnn'sos agreed to be herel)y sold, and giving to it the 
 full benefit of this agreement. 
 
 7. If from any cause whatever the purchase shall not be completed As to interest 
 
 on the day of nexL, the company shall pay interest on the delayed.*^ ^^^ 
 
 said sum of 4,000/. at the rate of 1 per cent, per annum, from that day 
 
 until the ])urchase shall be completed. 
 
 8. The vendor {[/) shall not at any time hereafter, either solely or Vendor not 
 jointly, '^\-ith, or as manager or agent for any other person or persons, or ^^jj^fj^/biisi- 
 company, directly or indirectly, carry on, or be engaged, or concerned, ness. 
 
 or interested in the business of a mechanical engineer, nor permit or 
 
 suffer his name to l)e used or employed in carrying on or in connection 
 
 with the said business, within 100 miles of the said leasehold premises, 
 
 save so far as the vendor shall as a member of the comi)any be interested, 
 
 i)V as an officer or servant or agent of the comi)any l)e employed, in the 
 
 said business agreed to be hereliy sold : [And in case the vendor shall Liquidated 
 
 commit any .bi'each of the foregoing stipulation, he shall pay to the '^''^"^^ses. 
 
 company [innnediately on every such breach] the sum of /., as 
 
 liquidated damages in res})ect thereof.] 
 
 (g) " The rule established by the modern decisions is in effect as follows : — 
 " An agreement not to carry on a particular trade or business is a valid con- 
 tract if it satisfies the following conditions: — 1. It must be founded on a 
 vahiable consideration. 2. It must not be unlimited as to space. 3. And the 
 restriction must not go beyond what in the judgment of the court is reasonably 
 necessary for the protection of the other partj', regard being had to the natui*e 
 of the trade or business." Pollock on Contracts, p. 313. 
 
 9. The possession of the said premise-s shall I)e retained by the Possession 
 
 \endor up to the said day of next, and in the meantime he [.(jli^pietion. 
 
 shall, at his own expense and for his own benefit, carry on the said Profits, 
 business in the same manner as heretofore. All outgoings in respect of outgoings.' 
 the said leasehold premises shall be discharged by the Aendor up to the 
 
 said day of next, and as from that day the outgoings in 
 
 respect thereof shall Ije discharged and the possession taken by the 
 company. Huch outgoings shall if necessary be a})portioned between the 
 vendor and the com})any. 
 
 10. The comiiany shall undertake and perform the several contracts Oompany to 
 aud engagements the benefit whereof is hereljy agreed to lie sold, aiid H^,^ °pj"^^^g^g_ 
 shall indenniify the vendor, his heirs, executors, and administrators, and 
 
 his and their estates and effects, from and against all actions, proceed- 
 ijigs, costs, and exi)enses, claims, and demands, in respect thereof. 
 
 11. All Ijooks of account and other documents relating to the said As to books of 
 business shall be handed over to the eom])aiiy on the completion of the •^''^°"'^ • 
 purchase. 
 
 12. Upon (//; the ndoptiou of this agreement by the company, the Pi^'^l'^rge of 
 said B. sb.all be discharged from all lialjility in respect thereof. liabilitv. 
 
 (/() As to this clause, see sttjjra, p. 3, ct scq.
 
 10 
 
 AGEEEMENTS. 
 
 Form 1. 
 
 Eescission of 
 shares not 
 taken. 
 
 Rescission in 
 default of 
 adoption. 
 
 No compensa- 
 tion for rescis- 
 sion. 
 
 Filing the 
 agreement. 
 
 13. Unless 1)cfore tlic day of next, at least shares in 
 
 tlio company's t'a])ital shall have been taken np [and a deposit of /. 
 
 per share i)aid thereon], either of the parties hereto may, 1)y notice in 
 writing to the other, rescind this agreement. And after adopting this 
 agreement the company shah stand in the place of the said B. for the 
 purposes of this clause. 
 
 In the case of ajjublic company the above is commonly inserted so that if the 
 shares are not satisfactorily taken up before the time for completion either 
 pai-ty may abandon the sale. 
 
 14. If this agreement shall not be ado))te(l l)y the company l)efore 
 
 the day of- • next, either of the parties hereto may, by notice 
 
 in wi-iting to the other, rescind the same. [See siqmi, p. o]. 
 
 l."». The rescission of this agreement, imder Clauses 13 or 14, shall not 
 gi\e rise to any claim for compensation, expenses, or otherwise. 
 
 l(i. The comjiany shall cause this agreement to l)e filed with the 
 Registrar of Joint-Stock Companies before any of the said shares are 
 allotted. 
 
 As to sjiecial clause where vendor a jn-omoter, see infra, p. 20. 
 
 As WITNESS the hands of the parties hereto, the day and year first 
 above written. 
 
 The schedule above kefeered to. 
 
 \_T}iis will coniabi imrikulara of flw Icaseliold jirfmiscs.'] 
 
 As to the Issue of Paid-ui) Shares. 
 
 Issue of paid- Companies frecpiently agree to issue paid-up or partly paid-up shares, in con- 
 up shares, si deration of projjerty or rights sold, or services rendered to the company. In 
 such cases s. 25 of the Act of 18G7 must be borne in mind. It is in these terms : 
 
 " Every share in any company shall be deemed to have been issued, and to be 
 held, subject to the payment of the whole amount thereof in cash, unless the 
 same shall have been otherwise determined by a contract duly made in writing- 
 and filed with the Registrar of Joint Stock Comijanies at or before the issue of 
 such shares." 
 
 Accordingly, whenever it is arranged that a company is to issue fully paid-up 
 or imrtly paid-ui> shares for a consideration other than cash, e.g., in considera- 
 tion of property or rights sold or services rendered to the company, the con- 
 tract (a) must be put in writing, and (h) must be filed before the shares ai'e 
 issued. 
 
 The following points may be noticed in reference to this section : 
 
 (1.) As to the 2>c'rties to the contract. — If the company is in existence it should 
 be made a party thereto, or the contract should be made by some jjerson pur- 
 porting to act on behalf of the comimny. But it is not clear that this is essen- 
 tial, and it wotild seem that any contract in writing duly filed which is acted 
 on by the company would be sufficient. At any rate an agreement made between 
 a vendor and some person purporting to act as trustee or agent for an intended 
 company is sufficient if duly filed. Hartley's case, 10 Ch. 159. 
 
 (2.) As to the aggregate number of shares being stated. — It has not been settled 
 whether the contract must state how many shares are to be issued under it as 
 paid-up. Before the Act of 18G7 there was no need in a contract for the issue 
 of paid-up shares to state the number, e.g., a company could, it is conceived. 
 
 Parties 
 
 As to statini 
 number of 
 shares.
 
 FORMS. 1 1 
 
 agree to purchase projierty at a valuation, to be i^aitl in fully paid-up shares. Form 1. 
 
 or to purchase goods when wanted from A. in consideration of paid-up shares ; 
 
 and it may be contended that s. 25 was not intended to interfere with such 
 
 contracts, but merely to require them to be in writing and filed. On the other 
 
 hand it may be said that the object of the Legislatui-e was to protect the public 
 
 — to enable a jjerson about to deal with a company to ascertain its position — 
 
 and accordingly that the Act ought so to be construed as best to effectuate that 
 
 intention. Now, if the filed contract need not show the number of shares to be 
 
 issued under it, a person examining the returns at the registration office may not 
 
 be able to obtain any insight into the company's jjosition, e.g., he may see that 
 
 1000 shares have been issued, and that there is a contract under which they 
 
 ir.ay have been issued. Until the point has been settled it seems advisable 
 
 that the contract filed should state the number of shares, and accordingly, 
 
 whex'e the main contract does not state the same a sup^jlemental contract should 
 
 be filed before the shares are issued. 
 
 (3.) As to the denoting numbers of the shares. — The contract appai'ently need As to denoting 
 not specify the denoting numbers of the shares to be issued. A doubt on this ""mbers oi 
 point was expressed by Mellish, L. J., in Pritchard's case, 8 Ch. 95G ; but in the ' ' 
 Buenos Ayres Co., W. N. lS7o, p. 59, the Master of the Eolls said, " he could 
 see no foimdation for the doiibt." While, however, it would not seem necessary, 
 it is very commonly exiiedient to preserve evidence in the Registrar's office as 
 to the numbers of the shares issued as jiaid-ui). Accordingly, it is well to give 
 the numbers of the shares in the contract when possible, or at any rate before 
 they are actually issued to file a supplemental agreement giving the numbers. 
 
 (i.) As to issuing to nominees. — Where by a contract duly filed provision is Issue to 
 made for the issue of paid-uj? or partly paid-up shares to A., such shares may nominees or 
 be issued to A. or to his nominees, and the allottees will be protected by such 
 contract. Carling's case, 1 C. Div. 121. 
 
 (5.) As to con side mtion. — Is the word "contract" in s. 25 used in its technical Whether 
 sense, i.e., must there be a consideration for the company's promise to issue the consideration 
 shares ? The same question arose as to the word "agreement " in s. -i of the ^•''*^'^*^'^ • 
 Statute of Frauds, and in Wain v. Walters, 1 East, 10, Lord Eldon said that, 
 " the question is whether that word [agreement] is to be understood in the 
 loose, incorrect sense in which it may sometimes be used, as synonymous to 
 promise or undertaking, or in its more proper and correct sense as signifying a 
 mutual contract on consideration between two or more jjarties ? The latter 
 appears to me to be the legal constriiction of the word, to which we are bound 
 to give effect : " &c. It would not seem unreasonable to hold that the word 
 contract was used in s. 25 in its technical sense, and this view has been taken 
 in some cases. Thus, in Crickmer's case, James, L. J., said that the contract 
 " must be a contract which shows what shares are to be issued fully paid-up, 
 and for u-hat consideration they are to bo issued." And in Anderson's case, 7 C. 
 Div. 113, Thesiger, L. J., said in reference to s. 25 : "I do not wish it to be 
 supposed that I in any way dissent from the view which was expressed by Mr. 
 Higgins, that under the teiin ' contract,' used in that s. 25, the document would 
 not come within those terms, where there really was no consideration at all. I 
 think it may very fairly be said — at all events I do not dissent from that view — 
 that under the Avord ' contract ' is intended a contract binding in law, which of 
 coui'se imports a consideration, although we may not be able to go into the 
 question of what was the value of the consideration." If this be the meaning 
 of the word " contract," it would seem that where a company agrees, without 
 any consideration, to issue paid-up shares to A., and the agreement is put in 
 writing and dulj' filed, A. will be liable to pay the whole amount of the shares 
 in cash, because no "contract" has been filed. On the other hand, in Ander- 
 son's case,uhi supra, Jessel, M. E., appears to have thought that a document 
 might be a contract within the naeaning of s. 25, though made without any con- 
 sideration. See also what was said in In re The Gold Company, 11 C. Div. 701 ; 
 but it was not necessary to decide the jKunt in either of these cases. Where
 
 12 
 
 AGREEMENTS. 
 
 Form 1. 
 
 Failure of 
 consideration. 
 
 Ultra vires 
 contract. 
 
 Whether 
 sufficient to 
 file a sub- 
 contract. 
 
 Articles not 
 a contract 
 ■within 
 Section 2"). 
 
 Meaning of 
 word " cash '' 
 in Section 25. 
 
 paid-up shares are issued under a contract ilftly filed, the failure of the con- 
 sideration for which they were issued does not entitle the company to treat the 
 shares as uniDaid. Thus, in Mcgc and Augier's case, W. N. lS7o, 208, the vendors 
 agreed to assign certain i^atents to the company in consideration of the issue to 
 them of paid-up shares. The contract was filed and the shares were issued, 
 but the vendors failed to assign the patents. It was held, nevertheless, by 
 Jessel, M. E., that the vendors could not be put on the list of contributors. 
 See also Carling's case, 1 C. Div. 115. So too where paid-ui) shares are issued 
 under a contract, fraudvdent and ultra vires of the directors, but duly filed, such 
 shares cannot be treated by the comi^any or its liquidator as unpaid. De Ru- 
 vigne's case, 5 C. Div. 30G. The companj^ must either approbate or reprobate 
 the contract. And it would seem that where paid-up shares are issued under a 
 contract duly filed bvit ultra vires of the company, they cannot be treated as 
 unpaid. See Anderson's case, per Jessel, M. E.., 7 C. Div. 75, but this seems 
 inconsistent with the word contract being used in its technical sense. 
 
 (G.) As to filing suh-contract. — Where an agreement in writing is made for the 
 issue of paid-uji shares it sometimes hapj^ens that the jjarties desire to avoid 
 filing it, either on account of its Ijeing very long or because it contains matter 
 Avhich it is inexpedient to expose to public inspection. In such case it is not 
 uncommon for the parties to execute and file a separate contract, briefly refer- 
 ring to the ijrincipal agreement and providing for the issue of the paid-up 
 shares. See example, infra. Form 19. To this plan there would seem to be no 
 objection, at any rate if the contract filed shows the consideration for which the 
 shares are issued. 
 
 (7.) Articles not a contract in ivritvng. — As a general rule the articles of asso- 
 ciation cannot be deemed a contract in writing within the meaning of s. 25 of 
 the Act of 1807. Firmstone's case, 20 Eq. 521 ; Crichmer's case, 10 Ch. Oil' ; 
 Pritchard's case, 8 Ch. 9G0. Accordingly, where the articles provide for the 
 issue to a vendor, promoter, or other person of paid-up shares, a separate con- 
 tract in writing must be executed and filed before the issue of the shares. It 
 may be that the articles can be so framed as to operate as a contract within 
 s. 25, and in the AjJj^letreewick Lead Mining Co., 18 Eq. 95, it was held by 
 Malins, V.-C, that a contract contained in the articles in that case was suffi- 
 cient ; but <as it is not desirable to run risk in such matters it is exjiedient to 
 file a separate agreement. 
 
 (8.) As to the meaning of tlie icord cash in s. 25. — Shares are to " be deemed to 
 have been issued and to be held subject to the payment of the whole amount 
 thereof in cash," unless a contract is filed. The word cash here does not mean 
 current coin or bank notes merely. Any transaction which in an action at law 
 for calls on the shares would have supported a plea of payment will be deemed 
 to be payment in cash. Thus if a comijany is indebted to A. in a sum presently 
 payable, and A. is the holder of shares unpaid or only in part paid up, an agree- 
 ment between A. and the company that the amount shall be credited as paid 
 up on the share is equivalent to payment in cash, and the contract need not be 
 in writing or filed. Sixtrgo's case, 8 Ch. 107. But " m order to prove a plea of 
 payment when there has been no payment in money, you must bring the trans- 
 action within these two propositions. There must be money due from the one to 
 the other on both sides, and the i^arties must agree to set one demand of money 
 against the other demand of money." Per Brett, L. J., White's case, 12 C. Div. 
 517. 
 
 In considering whether there is a debt due to the comi^any it appears that 
 the amoixnt due on a share, even though not actually called up, may be treated 
 as a debt presently due. Spargo's case, 8 Ch. 107; White's case, uhi supra; Bent- 
 ley's case, 12 C. D. 851. 
 
 Moreover, the shares need not have >)een allotted prior to the agreement to 
 set off, for where a company is indebted to A. in cash, and A. agrees to accept 
 payment in fully paid-up shares, that amounts to payment for the shares in cash. 
 Jn re Barrow-in-Fuiness, 11 C. Div. 100. But see Rowland's case, 12 L. T. 785.
 
 FOEMS. 13 
 
 And where a person has a bon'i fide claim (even though unliquidated) a<^ainst Porm 1 
 
 a company, and by way of compromise it is arranged that in catisfaetion, or 
 
 part satisfaction, the company shall credit a sum as paid up on the share of the 
 claimant, or of some other person, that is equivalent to cash. Ferrao's case^ 
 9 Ch. 355 ; Adamson's case, 18 Eq. C70 ; Bentley's case, 12 C. D. 851. 
 
 But where a company agrees to issue paid-up shares in consideration of pro 
 perty sold, or services rendered, it is impossible to treat the transaction as a 
 cash payment, because the company never owed and never intended to owe any 
 cash. Andress' case, 8 C. Div. 12G ; see also Pagin and. Gill's case, G C. Div. 081; 
 and Barrow, uhi supra. And the fact that the transaction is treated in the books 
 of the company as a cash payment does not affect the matter. Andress' case, 
 ubi supra; White's case, 12 C. D. 511; Newport Co., 12 L. T. 785; W. N. 1880, 80. 
 And where the sale is for cash, with merely an option to satisfy in shares, if 
 the option is exercised, the shares cannot be regarded as paid in cash. Barrow's 
 case, 14 C. Div. 182. So too a surrender of a debenture not due cannot be treated 
 as a payment in cash. Appleyard's case, 18 C. D. 587 ; 19 L. J. Ch. 290. 
 
 It must be borne in mind that in order that a transaction may be treated as 
 payment in cash there must be bona fides. If the transaction is designed with 
 a view to evade the Act it will fail. Spargo's case, ubi svpra. Accordingly it is 
 not uncommon in testimony of bona, fides to file contract, even when a trans- 
 action would clearly amount to payment in cash. 
 
 (9.) As to meaning of issue. — As the contract must be filed before the "issue" Jfeauin'' of 
 of the shares, it is of course important to ascertain the meaning of the word the word 
 issue in s. 25. It is now settled that the issue is something diii'erent from the "issue" iu 
 allotment of the share or the issue of the cex'tificates of title thereto. A share 'Action _.». 
 is issued when the holder has acqiiired an absolute right thereto. It cannot be 
 considered issued before allotment, but it may be considered issued although 
 the certificate of title has not been issued. See Bush's case, 9 Ch. 554 ; Blyth's 
 case, 4 C. Div. 140; and Clarke's case, 8 C. Div. 612. In order to avoid danger 
 it is best not to allot till the contract has been filed, and contracts should be 
 framed accordingly. 
 
 (10.) As to subscribing memo randMin. — In framing a preliminary agreement As to vendor 
 jH-oviding for the issue of paid-up or partly paid-up shares it must be con- sul>scril)ing 
 sidered whether it is desired that the person to whom the shares are to be memoi-aiidum 
 issixed should or should not subscribe the memorandvim of association for the ° ' ' ' 
 same, since the terms of the agreement will vary accordingly. See clause 2 of 
 the Form at p. 32. It is now settled that where a person subscribes the memo- 
 randum for shares he is ])rimn facie bound to pay in cash, but before the issue 
 of the shares he can, by contract with the company duly filed, arrange that the 
 shares shall be credited as paid-up, for a consideration other than cash. Fother- 
 gill's case, 8 Ch. 282 ; Anderson's case, 7 C. Div. 75. It is essential to identify 
 the shares, e. g. the contract should recite the subscription and provide that as 
 the consideration for [the sale] the shares so subscriljed for shall be deemed 
 fully paid up or as the case may be. 
 
 (11.) Result of not filing contract. — If default is made in the filing of acontract Result of not 
 in writing as to the issue of paid-up shares for a consideration other than cash, filing contract. 
 the persons to whom shares are issued under it will be liable to pay up the 
 shares in cash. It was at one time thought that the company could not make 
 calls in respect of shares so issued. Spargo's case, 8 Ch. 107. But in the recent 
 case of Burkinshaw v. Nicholls, 3 App. Case, lOlG, Earl Cairns, L.C., was of 
 opinion that the shareholder would have no answer to an action for such calls. 
 The liability attaches not only to the original holder but to transferees who 
 have notice actual or constructive that no contract has been filed. Blyth's case, 
 4 C. D. IW: In re Newport, c\'c., Co., Rowland's case, W. N. 1880, 80; 42 L. T. 
 785. Where, however, shares subject to such a liability are transferred to a 
 hon'i fide purchaser, without notice of the liability, who accepts the shares on the 
 footing of a certificate of title thereto, describing the shares as fully paid up, such 
 purchaser is not under liability. He holds the shares as paid-up. Burkinshaw
 
 14, 
 
 AGEEEMENTS. 
 
 Form 1. 
 
 Who is Ijound 
 to see to 
 
 Remedy wliere 
 default in 
 tilin''. 
 
 V. NidwUs, uhl sMj3i-a. And if the sliares are subsequently transferred to a 
 person who has notice that a contract was not filed, they will even in his hands 
 he free from liability. Barrow's case, 14 C. Div. 433 ; 28 W. E. 270. 
 
 (12.) As to party bound to file. — Unless otherwise arranged between the parties, 
 the obligation of seeing- that the contract is filed rests with the company, and 
 if the company issues the shares before the contract is filed it is liable in 
 damages. In re Government Security Co., Mudford's claim, 14 C. D. 634; 28 W. 
 K. 670 ; Axjpleyard's case, 18 C. D. 587. But query whether these cases can be 
 relied on, regard being had to Houldsworth v. Glasgow Bank, 5 App. Cas. 317. 
 
 (13.) Remedy where default in filing. — If shares agreed to be issued as fully 
 paid up for a consideration other than cash have been issiied without the filing 
 of a proper contract, the Court will, upon the aj^plication of the company or of 
 the party aggrieved, make an ordei- to rectify the register by striking out the 
 names of the allottees, to the intent that the contract or a contract may be 
 filed and the shares re-issued. New Zealand Kajxmga, c'j-c, Co., 18 Eq. 17 ; 
 Denton Colliery Co., 18 Eq. 16; and see " Orders," infra. But it must be shown 
 that the allottees were ignorant of the omission to file the contract. See the 
 cases last mentioned and the Droitwich Salt Co., W. N. 1871, 133. Instead of 
 applying to the Court, the allottees may in such case ajDply to the company, and 
 the directors will be justified in cancelling the allotment and removing the 
 allottees' names from the register, and after the contract has been filed, re- 
 issuing the shares to the parties entitled thereto. Hartley's case, 10 Ch. 157. 
 
 As to issuing shares at a discount and bonus shares, see infra, p. 39. 
 
 Form 2. Coxtract to File irlwre Paid-up Shares msmc^Z icWiout rompJiancp icifh 
 
 i'^ecfion -Jo of t/ie Ad of 1SC>7. 
 
 Parties. 
 
 Recitals. 
 
 AX AGrtEE:\rT made the 
 called the co), of 1st part ; — 
 
 - day of between (hereinafter 
 
 of (hereinafter called the vendor), 
 
 of the :ind part ; and A. on Ix'half of , the several jjersons specified 
 
 in the second schedule hereto (hereinafter called the shareholders), of the 
 
 third part : Whereas on or ahont the day of the vendor and 
 
 the CO entered into the agreemt (hereinafter called the preliminary con- 
 tract), a copy whereof is set forth in the first schednle hereto. [And 
 WHEREAS shortly afterwards that agreemt was duly filed with Heji'istrar ( f 
 Joint Stock Companies.] And whereas each of the shareholders is the 
 reii'istercd holder of the shares of which the parlars are set opposite his or 
 her name in the second column of the second schedule hereto : And 
 WHEREAS the sd shares were all allotted pursuant to the prelimiiniry 
 contract and by the direction of the vendor, and upon the footing that 
 they were to be deemed fully paid. Axd whereas doubts liave arisen 
 whether the preliminary contract is a sufficient contract in writing 
 within the meaning of S. 25 of the Companies Act, 18G7, and it is de- 
 sired to preclude any further question in regard thereto [or, Axd whereas 
 by mistake the jircliminary contract was not filed with the Registrar of 
 Joint Stock Companies before the issue of the sd shares, and the pai-ties 
 hereto were at the time of such issue, and until recently, wholly ignoraut
 
 FORM: 
 
 15 
 
 of the omission to file the same, and they have required tlic co to Porm 2 
 
 rectify such mistake] : And "whereas the sd A. B. has been duly 
 
 authorised to enter into this agreenit on hehalf of each of the shareholders. 
 
 XOW THEREFORE IT IS AGREED aS folloWS : 
 
 1 . This agreemt shall forthwith be filed with the Registrar of Joint File contract. 
 Stock Companies. 
 
 2. The CO shall forthwith cancel the respive allotments made as Cancel 
 aforesd, and shall remove the name of each of the shareholders from ^^Hotments. 
 the register of members in respect of such shares, and the certificate of 
 
 title, if any, which has been issued to or is held by each of the share- 
 holders shall be forthwith given up to the co to be cancelled. 
 
 ;>. Subsequently with all convenient speed the co shall in lieu of Ke-allotiiient. 
 i-acli of the shares now held as aforesd allot and issue to the present 
 liolder thereof a 1/. share in the co's capital, and every share so allotted 
 shall be deemed for all purposes to be fully paid up. And the shares so 
 to be allotted shall be uuml)ered in the manner specified in the fourth 
 column of the same schedule. 
 
 4. The shares allotted pursuant to the last jDreceding clause hereof Couslileratiun. 
 shall be deemed to be part of the shares to the issue whereof the vendor 
 became entitled under the preliminary contract. 
 
 As WITXHSS, &c. 
 
 Fii-st Column. 
 
 First Schedule. 
 \_Copij [yrcVtmiiianj confracf.'] 
 
 Second Schedule. 
 
 Second Column. Third Column. Fourth Column. 
 
 * e.g., five £1 
 shares, num- 
 bered — to — 
 inclusive. 
 
 Where shares have been issued credited as paid-up for a consideration othei 
 than cash, and by mistake a proper contract has not been filed, it may be pos- 
 sible to rectify the mistake without going to the Court, esjjecially where no 
 return has been made to the Registrar. See Hartley's case, 10 Ch. 157. But 
 the (question of bona fides is very material. Where the shares have been issued 
 without the execution of any contract, as in Denton Colliery Co., 18 Eq. 17, the 
 contract should recite the facts and provide for the issue of the shares and their 
 acceptance in satisfaction.
 
 16 
 
 AGREEMENTS. 
 
 Form 3. 
 
 Parties, 
 Recitals. 
 
 AgreemeDt 
 to sell. 
 
 Consideratii 
 
 Incidental 
 provisions. 
 
 Completion. 
 
 Agreement /or 8ale fl/ Patents. Consideration, Cash, and 
 Founders' Shares. 
 
 AX AGREEMT, Sec, parties, Tciidor, 1 ; co, 2. 
 
 AVhereas the vendor is the owner of the several patents specified in 
 the schedule hereto and hereinafter referred to as the scheduled patents : 
 And avhereas the capital of tlie co consists in part of 100 founders' 
 shares of 1 1, each 
 
 Xow these presents witness and declare as follows : 
 
 1. The vendor shall sell and the co shall purchase, first, the scheduled 
 l)atents and the full and exclusive benefit thereof; and, secondly, the 
 benefit of all improvements on the indentions referred to in the sd 
 patents respectively, and of all further inventions in connection with 
 
 the manufacture of , which have l)een already or may hereafter be 
 
 made by the vendor, and all British patents which may be ol)tained by 
 or on belialf (jf tlie vendor for any such improvements or further inven- 
 tions, and the full and exclusive benefit thereof. 
 
 Having regard to the Patents, Designs, and Trade Marks Act, 1883 ( 4G & 
 -17 Vict. c. 57), there is no need to provide that the purchaser shall be entitled 
 to apply for extensions, or to sue for infringement, or to disclaim, inasmuch as 
 the Act and the patent together confer the requisite powers on the owner of the 
 patent for the time being. As to the validity of a sale of future inventions. 
 See Printing, cj-c, Co. v. Sampson, 19 Eq. 4:02 ; Zi W. E. 103 ; 32 L. T. N. S. 351. 
 
 2. As the consideration for the sale the co shall pay to the -vendor 
 the sum of o,0(»o/. cash, and shall issue to him or his nujuinees the whole 
 of the sd founders' shares, and such shares shall be deemed for all pur- 
 poses fiiUy paid up. 
 
 ". The vendor shall from time to time, Avitli all convenient speed, 
 communicate to the co or its assigns all such improvements and further 
 inventioiis, and shall give them full information as to the exact mode of 
 working and using the same, and shall from time to time at the request 
 and expense of the co execute and do all such documents and things as 
 may be requisite for the purpose of enabling the co to obtain British 
 patents for such improvements and further inventions, and shall fi'om 
 
 time to time and at all times during the term of years to be computed 
 
 from, &c,, and without making any charge therefor, give all such advice, 
 explanation, and instruction to the directors and other officers and work- 
 men of the company as may be necessary to enable them effectually to 
 exercise and work such improvements and further in^enticms respec- 
 tively, and shall for such purposes at the expense of the co jirepare and 
 furnish to the co all necessary plans, drawings, and models. 
 
 4. The ])urchase shall be completed on the day of , at, &c., 
 
 when the said sum of o,(H)OL cash shall l)e paid to the vendor, and the 
 sd founders' sliares shall ))e allotted as aforesd. And thereupon and 
 from time to time, and at any tiuie afterwards, the vendor shall at the
 
 FOEMS. 
 
 expense of tlic co execute aiul do all such assurance [r/.s in Form 
 1, cL G]. 
 
 5. Unless before the day of next at least shares in 
 
 the co's capital shall have been taken up by responsible persons, either 
 of the parties hereto may by notice in writinji,- to the other rescind this 
 a.greemt, and such rescission shall not ^ivc rise to any claim for 
 expenses or otherwise. 
 
 In witness, &c. 
 
 [Add Schedule coniainiiKj pdriinikirs cf jiafenfa.^ 
 
 The above precedent does not deal with foreign patents, but in many cases 
 the right to apply for them is included in the sale. Sometimes the company is 
 only given an oi^tion to be exercised within a limited time after communication 
 to acquire patents in respect of improvements and fui'ther inventions^ so that if 
 the company does not elect to i^roceed the vendor may himself proceed, and the 
 same plan is sometimes adopted as regards foreign patents. Occasionally 
 special provision is made for obtaining foreign i^atents and realizing the same 
 by sale or otherwise, and dividing the proceeds, whether consisting of cash, 
 shares or otherwise, between the vendor and the company, or for issuing to the 
 vendor jiaid-up shares in the company equivalent to a certain proportion of such 
 l^roceeds. 
 
 Sometimes companies are brought out (as in the case of the Electric Light 
 Companies recently formed) with an exclusive licence or concession (acquired 
 for a lump sum in cash, shares or otherwise) to use patented inventions for all or 
 si3ecified purposes within a limited district. But there was great difficulty in 
 framing these concessions satisfactorily, for a patented article duly made and sold 
 carried with it a licence to use the same within the limits of the jiatent {Belts v. 
 Wihnot, L. E. G Ch. 239), and accordingly any person who could duly acquire 
 the i^atented article outside the district, could sell and use it within the district. 
 The difficulty was met, but by no means effectually, by the insertion of covenants 
 by the grantor and grantee not to sell for use outside their respective districts. 
 
 However, it seems probable that for the future, instead of such a concession, 
 it will be found advisable to purchase and obtain an assignment of the patent 
 for the particular district, under s. 36 of the Act of 1883, above referred to. 
 That section i^rovidos that " A patentee (i.e. the owner for the time being) may 
 assign his patent for any place in or part of the United Kingdom or Isle of 
 Man, as effectually as if the patent were originally granted to extend to that 
 place or part only." This jjrovision ajjpears admirably calculated to facilitate the 
 concession system, and it would seem that where a patent for a district has been 
 sold it will not be lawful to sell or use in that district a patented article made 
 elsewhere. Von Heyden v. Neustadt, 1 i C. Div. 230 ; Belts v. De Vilre, L. R. H 
 H. L. 1 ; Adair v. Young, 12 C. Div. 13 ; Socu'lJ des Manufactures de Glare v. 
 Tilghman's Co., 25 C. Div. 1 ; 32 W. E. 71 ; Noble's Explosives Co. v. Jones, Ap. 
 Cas. 5. 
 
 17 
 
 Form 3. 
 
 Miscellaneous Provisions for insertion in Agukements. 
 
 Form 4. 
 
 The consideration for the said sale shall be the issue in manner Consideration 
 hereinafter provided of fully paid-uj) shares in the co's capital (herein- ''''^^x*'j*^r . ., 
 after called vendors' shares), the a<>-,uTc^-atc nominal value whereof time beiug. 
 
 C
 
 18 
 
 AGREEMENTS. 
 
 Porm 4. shall be equal to the aggregate nominal vahie of the other shares 
 
 of the comiiany for the time being issued, but so that the aggregate 
 
 nominal value of the vendors' shares to be issued as aforesaid shall not 
 exceed 50,000/. And to answer this clause 5,000 of the shares in the 
 original capital of the company shall be set aside, and shall be numbered 
 
 to inclusive. 
 
 The vendors' shares shall be issued to the vendors or the persons 
 deriving title through them respectively in the proportions set forth in 
 the schedule hereto, and at the times following, \'\z. : at the time fixed 
 
 for completion by clause • hereof so many as shall be equal in 
 
 nominal value to the nominal value of the other shares then already 
 issued, and the residue fi'om time to time as and when any of the 
 remaining shares (exclusive of any of the vendors' shaix's) shall be issued. 
 
 Occasionally a clause as above is used. It is expedient to file further agree-' 
 ments as and when the shares are to be issued, see supra, p. 11. 
 
 Form 5. Upon payment of the cash portion of the purchase-money the 
 
 7, 7~ vendor shall enter into a covenant with the company for the benefit of 
 
 Guarantee of '^ n ^ 
 
 profits i>y the members thereof guaranteeing that the net profits of the company ni 
 
 Tendi.v. respect of the said business during each of the three years next following 
 
 the day of next shall amount to not less than [10] per cent. 
 
 per annum on the capital of the com2)any for the time being employed 
 thereiji, and that if there shall be a deficiency in any of the said three 
 years the vendor, his heirs, executors, or administrators, shall, im- 
 mediately after the same shall have been ascertained and notice thereof 
 given to him or them, pay to the company in trust for the members 
 thereof the amount of such deficiency. The certificate in writing of the 
 auditor or auditors for the time being of the company of the existence 
 and amount of any such deficiency shall, as against the vendor, be con- 
 clusive evidence thereof for the purposes of this clause. 
 
 Guarantee of Profits. 
 
 It is l)j no means uncommon, where a going' business is sold to a company, 
 for the vendor to guarantee that the profits shall, during a limited period, 
 amount to a particular sum. The guarantee is usually given for the benefit of 
 the shareholders, and is stated in the i^rospectus as an attraction. Where the 
 transaction is bona fide (i.e., is not a mere scheme for enabling the company tO' 
 pay dividends out of capital) the members thereby acquire an independent 
 right, which they will be able to rely on if the profits are insufiicient. See Re 
 Gelly Deg Colliery Co., 38 L. T. 440; South Llanharran Co., 12 Ch. Div. 503. 
 But such guarantees require to be very carefully framed. See Stuart's Trusts, 
 4 C. D. 213, where it was held that the guarantee amounted to a provision foi* 
 payment of dividends out of capital, and accordingly that the members could 
 not claim the benefit thereof as against the company's creditors. Sometimes 
 the performance of the guarantee is secured by the investment of a fund in the 
 names of trustees. A company can in some cases release a guarantee by a 
 vendor. Sheffield Nickel Co. v. Umvin, 2 Q. B. D. 214. Where several busi- 
 nesses were sold to a company it was held that the discontinuance of one of 
 them did not discharge the vendor from his guarantee. Brovn 4" Co. v. Broun,
 
 FORMS. 19 
 
 35 L. T. 51 ; 3G L. T. 272. Where there is a guarantee fund, it is sometimea Form 5. 
 provided that if the profits in any year amount to the guaranteed sum, a jmrt 
 of the fund shall be released. In the South Llanharran Co.,iibi supra, it was 
 provided that any monies paid under the guarantee should be repaid out of the 
 surplus profits which in any subsequent year remained after payment of a 10 per 
 cent, dividend for that year. 
 
 As lietween tlie holders of the 12,000 shares to be allotted to the Form 6. 
 
 vendors pursuant to clause hereof (which shares are hereinafter ^T ~ ; 
 
 ^ . \ endors 
 
 referred to as the vendors' shares), and the holders of tlie othei* shares in shares 
 the capital of the company which have l)een already, or shall hereafter be "'^^^^^'S'^- 
 issued not exceeding 20,0i)0 in number (hereinafter referred to as 
 the ordinary shares), the profits of the company, from the first day 
 of January, 18Hi, to the 31st day of December, 1S8'.), shall be applied, 
 first in paying to the holders of the ordinary shares a cumulative 
 preferential dividend at the rate of 6 per cent, per annum upon the 
 amount for the time being paid up, or credited as paid up on the 
 ordinary shares held by them respectively [not exceeding 107. per 
 share]. Secondly, in paying a dividend at the same rate to the holders 
 of the vendors' shares u])on the amount credited as paid up on the 
 vendors' shares held Ijy them respectively [and to the holders of the 
 ordinary shares upon the amount paid up, or credited as paid up on the 
 ordinary shares held by them respectively beyond 10/. per share]. 
 Thirdly, the surplus shall l)e applied in paying dividends on the ordinary 
 shares and the vendors' shares pari passif. in proportion to the amount 
 paid up or credited as paid up thereon respectively. Pijovided always 
 that where money has l)een paid up in advance of calls upon the footing 
 that the same shall carry interest, the same shall not, while can-ying 
 interest, confer a right to paiticii)ate in profits under this clause. Upon 
 each of the certificates of title issued in respect of the vendors' shares or 
 any of them before the 31st day of December, 1889, there shall l)e 
 indorsed a memorandum in the terms set forth in the schedule hereto. 
 
 Sometimes upon the sale of a going concern the vendor agrees to give a 
 limited preference to the shares taken up by the public, as above. 
 
 The memorandum -sTill refer to the agreement, and set out the clause, and 
 state that the shai-es included in the certificate form part of the vendor's shares. 
 
 Sometimes where a mining concern is sold to a company and there is a large Form 7 
 
 stock of ore already raised, the vendor desires to i-eserve an interest in the pro- — — 
 
 ceeds, and accordingly stipulates for the issue of certificates as follows : 
 
 As the residue of the consideration for the said sale the company shall Certificates to 
 issue to the vendor 100 certificates under the company's common seal in yVd^'^^ ^^ 
 the form set forth in the first schedule hereto, and shall also execute and representing a 
 deliver to the vendor a deed of covenant in the terms set forth in ^jroreds f 
 the second schedule hereto. ore already 
 
 raised. 
 
 C 2
 
 20 
 
 AGREEMENTS. 
 
 Form 7. 
 
 Form of 
 certificate. 
 
 The 
 
 Company, Limited. 
 
 Form 8. 
 
 Agreement not 
 
 This is to certify that the bearer is entitled to oue-huudrcdth part 
 of one-third part of the net proceeds of the S,0()0 tons of ore acquired 
 ])y the above-named company nuder the agreemt dated, &<;., and 
 made, &c. 
 
 This certificate is issued pursuant to clause 5 of the sd agreemt, 
 and the bearer is entitled to the benefit of the trust deed dated, &c., and 
 made, &c., whereby provision is made for the crushing- and realisation of 
 the sd ore and for the division from time to time of one-third of the net 
 proceeds amoug the holders of the sd certificates. 
 
 Notice of every dividend declared on the certificates is to be adver- 
 tised in the Tinus, and the receipt of the l)earer is to be a good discharge 
 for wliate-s'er may become payable on this certificate. 
 
 Before any dividend Avill lie paid to the bearer this certificate must 
 be produced to the company, and the company is to be at liberty to 
 endorse thereon a memorandum of the payment. 
 
 Given under the company's common seal, this day of . 
 
 Generally it is more convenient to make the dividends payable on i^resenta- 
 tion of coupons instead of as above. 
 
 The validity of this agreemt shall not be impeached on the ground 
 that the vendors, as promoters or otherwise, stand in a fiduciary relation 
 
 to\e disputed to the Company, or that the directors, having accepted office at their 
 though vendor I'equest, do not constitute an independent board, nor are the vendors to 
 be accountable for any profit made upon the re-sale to the company. 
 
 Looking to the principles laid down in New Sombrero Co. v. Erlanger, 3 App. 
 Cas. 1218 (compare British Seimless Paper Box Co., 17 C. Div. 4G7) there is 
 sometimes considerable difficulty in knowing how to bind a company where the 
 vendors are promoters, e.g., in the case of a private company where they are in 
 substance both vendors, promoters, and purchasers. With a view to prevent- 
 ing any question a clause as above, with suitable modifications, is sometimes 
 inserted in the agreement, and the agreement is referred to in the memorandum 
 of association and is set out or referred to in the articles, and a clause is inserted 
 in the articles as in Form 115. 
 
 It is conceived that these precautions (in the absence of fraud) preclude all 
 question. 
 
 Form 9. 
 
 Liberty for 
 vendor to 
 remunerate 
 promoters. 
 
 The vendors are to be at lilierty to remunerate for their services 
 L. and M., and any other persons who ha^'e assisted or shall assist in 
 forming or promoting the company. Such persons, without further dis^ 
 closure to the company, shall respectively be at liberty to accept such 
 remuneration, notwithstanding any fiduciary relation (by reason of their 
 being promoters of the cum})any or otherwise) that may sul)sist between 
 them and the company ; and the vendors shall indemnify the company 
 against all claims and demands by such jicrsons in respect of their 
 services aforesaid. 
 
 When the vendors undertake to pay preliminary expenses a clause as above 
 is sometimes insei'tod. As regards the persons named it would seem to be 
 valid, but wlietber it would protect persons not named is open to question. 
 
 i
 
 FORMS. 21 
 
 As to them it may be said that a promoter cannot retain a secret profit, and Form 9. 
 that the above clause does not afford any disclosure. 
 
 If any difference shall arise Ijetweeu the parties hereto touching these Arbitration, 
 presents, or the construction hereof, or any clause or thing herein con- 
 tained, or any matter in any way connected with these presents, or the 
 oi3eration thereof, or the rights, duties, or haljilities of either party in 
 connection with the prenn'ses ; then and in e^'ery or any such case, the 
 matter in difference shaU be referred to two arbitrators, one to be 
 a|)pointed by each of tlie parties in difference. And upon every or any 
 such reference the costs of and incident to the reference and award 
 respectively shall be in the discretion of the arbitrators, or umpire 
 respectively, who may determine the amount thereof, or direct the 
 same to be taxed, as between solicitor and client, or otherwise, and 
 may award by wJiom and to whom and in what manner the same shall 
 be borne and paid : And the submission shall be made an order of the 
 High Court of Justice upon the application of either party, and such 
 party may instruct coimsel to consent thereto for the other parties, and 
 the death uf any party shall not operate as a revocation. 
 
 Occasionally a clause as above is inserted in agreements, but its insei'tion is 
 not to be recommended, for a dispute can generally be settled more speedily 
 and with less expense by the issiie of a writ : the presence of the clause some- 
 times causes grave inconvenience. 
 
 Ajkbitratiox. 
 
 The following are some of the effects and consequences of a submission 
 framed as above : — 
 
 In case of the death, refusal to act or incapacity of any arbitrator appointed 
 by either party, such party will be entitled to substitute a new arbitrator. — 
 Section 13 of the Common Law Procedure Act, 185 1 (in this note referred to as 
 " the Act "). 
 
 If one party fail to appoint an arbitrator, either originally . or by way of sub- 
 stitution as aforesaid, for seven clear days after the other party shall have 
 appointed an arbitrator, and shall have served the party so failing to appoint 
 ■with notice in writing, to make the appointment, the party who has appointed 
 an arbitrator may appoint such arbitrator to act as sole arbitrator in the refer- 
 ence. And an award by him will be binding on both jxirties as if the ajjpoint- 
 ment had been by consent. However, the Court or a judge may revoke such 
 api>ointment, on such terms as shall seem just. — Section 13 of the Act ; and see 
 Gillett V. Thornton, 19 Eq. 399. Daniel, Forms, p. 103U. 
 
 This section does not apply where the reference is to be to three arbitrators, 
 Gumm V. Hallett, 14 Eq. 55. 
 
 If the arbitrators do not appoint an umpire, then either party may serve the 
 arbitrators with a written notice to appoint an umpii-e ; and if, within seven 
 clear days after such notice shall have been served, no umpire be appointed, 
 any judge of the High Coiu't, upon summons to be taken out by the party 
 having served such notice, may appoint an umjiire. Such umpire will have the 
 like power to act in the reference, and make an award as if he had been ap- 
 pointed by consent of all parties. — Section 12 of the Act. 
 
 The two arbitrators may appoint an umpire at any time within the period 
 during which they have power to make the award, unless they are called u^Don 
 by notice as above mentioned to make the api^ointment sooner. — Section 14 of 
 the Act.
 
 ^I'Z AGEEEMENTS. 
 
 Form 9. The arbitrator acting- under sncli a sulnnission must make his award under 
 
 his hand within three months after he shall have been appointed, and shall 
 have entered on the reference, or shall h;ive been called upon to act by notice 
 in writing from either party, but the parties may consent in writing to enlarge 
 the term for making the award ; and the Court or any judge thereof, for good 
 cause to be stated in the rule or order for enlargement, may from time to time 
 enlarge the time for making- the award. — Sec. lo of the Act. See Baker v. 
 Stevenson, L. K. 2 Q. B. 523. 
 
 The Court has jurisdiction to enlarge the term, notwithstanding thatthe time 
 for making the award has elai^sed, and has in some cases exei'cised it. In re 
 Warner and Poivell's Arbitration, 3 Eq. 261 ; Lord v. Lee, 37 L. J. Q. B. 121 ; 
 Watson V. Beavan, 8 W. E. G12. Seton, p. 402. 
 
 In any case where an umpire shall have been appointed, he may enter upon 
 the reference in lieu of the arbitrators, if the latter shall have allowed their 
 time, or their extended time, to expire without making an award, or shall have 
 delivered to any party, or to the umpire, a notice in writing that they cannot 
 agree. — Section lo of the Act. 
 
 The arbitrator may state his award as to the whole or any part of it in the 
 form of a special case for the ojDinion of the Court. — Section 5 of the Act. 
 
 The authority of an arbitrator appointed under an agreement as above, pro- 
 viding that the submission shall be made an order of Court, is irrevocable, 
 except by leave of the Court ; and the arbitrator is bound to proceed with the 
 reference, notwithstanding any such revocation, and to make his award, 
 although the person making the revocation does not afterwards attend the 
 reference, 3 & 4. Will. IV., c. 42, s. 39. Hence the importance of expressly pro- 
 viding that the submission shall l;)e made an order of Court. In the absence of 
 any such provision the submission to any particular person or persons made pur- 
 suant to the agreement may be revoked at any time before the award is made, 
 notwithstanding s. 17 of the Act, which provides that " Every agreement or sub- 
 mission to arbitration by consent whether by deed or instrument in writing not 
 under seal may be made a rule of any one of the Superior Courts of Law or 
 Equity at AVestminster, on the application of any party thereto, unless such 
 agreement or submission contain words purporting that the parties intend that 
 it should not be made a rule of Coixrt, &c." Mills v. Batjley, 2 H. & C. 36 ; 
 Thompson v. Anderson, 9 Eq. 523 ; Re Rouse v. Meier, L. R. 6 C. P. 212 ; Randall 
 V. Thompson, 1 Q. B. Div. 7 18 ; In re Fraser, 32 W. E. 240. And the revocation 
 may be made even where the submission has been made an order of Court. 
 Rouse V. Meier, tibi supra. But such a revocation does not of course put an end 
 to a general agreement to refer, as in the above clause, and accordingly if 
 after the revocation an action Vje brought proceedings may be stayed under 
 s. 11 of the Act below mentioned. Piercy v. Young, 14 C. D. 200. Contra where 
 the submission is of existing disputes to a specific i^erson, Randall v. Thompson, 
 ubi supra. It will be borne in mind that the agreement to refer and the written 
 appointment of the arbitrators or arbitrator duly verified together constitute 
 the submission. Newton v. Hetherington, 19 C. B. N. S. 342 ; 13 W. E. 864. 
 Re Wilcox, I C. P. 667 ; Ex parte Harper, 18 Eq. 599. 
 
 The application to make a submission a rule of Court is by motion ex parte, 
 Oglesby's Arb., W. N. 1879, 150. The execution of the submission must be 
 proved, unless the application is consented to. Dan. Ch. Pr. 1902. The object 
 of inserting the words, " and such party may instruct counsel to consent thereto 
 for the other parties," is to avoid the necessity for this. The original submis- 
 sion must be filed before order. Order 61, r. 15. 
 
 As to making award instead of submission an order of Court, see Jones v. 
 Jones, 14 C. Div. 591, and Re Rolfe, 28 S. J. 165. 
 
 It is expedient to give the arbitrator power to award costs, for in the absence 
 of exin-ess authority he has no power to adjudicate respecting them (Eussell on 
 Arbitration, 382), and each party must bear his own expenses of the reference, 
 and is liable to half the costs of the award ; nor in the absence of express autho-
 
 FOEMS. 23 
 
 rity can the arbitrator order the costs to be taxed as between solicitor and Form 9. 
 client. Ibid. 3S7. 
 
 Costs of the reference include costs of the award. Re Walker, 9 Q. B. D. 431. 
 
 The Court or a judge }nay at any time and from time to time remit the 
 matters referred or any of them to the reconsideration and redetermination of 
 the arbitrator upon such terms as to costs and otherwise as to the Court or 
 judge may seem proper. — Section 8 of the Act. Warner and Powell's Arbitratio7i, 
 3 Eq. 2G1. 
 
 An arbitrator who has signed his award is functas officio, and cannot even 
 correct a clerical error. Hence the value of the above section. 
 
 The proceedings upon any such arbitration shall be conducted in like manner, 
 and subject to the same rules and enactments, as to the power of the arbitrator 
 and of the Court, the attendance of witnesses, the production of documents, 
 enforcing or setting aside the award ;ind otherwise, as upon a reference made 
 by consent under a rule of Court or judge's order. — Section 7 of the Act. It 
 was at one time doubted whether this section applied -in case of an arbitration 
 upon a svibiaission in writing, but there seems now no doubt that it does. 
 Rouse V. Meier, L. E. (J C. P. 221. Under this section, coupled with Section iO of 
 3 & -4 Will. IV., c. -l^, the attendance of witnesses and the production of docu- 
 ments can be compelled. In re Achai-y, 3 Ch. Div. 125 ; Clarhroiujh v. Toothill, 
 17 C. D. 787 ; Rooney v. Whiteley, W. N. 1883, 225. 
 
 Hence there is no need to provide expressly for these matters. But s. 10 of 
 the Act lastly mentioned only applies where the agreement provides for makint' 
 the submission an order of Court. Kussell, 188. 
 
 By Lord Brougham's Act of 1851, to amend the Law of Evidence, it is pro- 
 vided that " Every judge, officer, commissioner, arbitrator, or other person now 
 or hereafter, having by law or by consent of parties authority to hear, receive 
 and examine evidence, is hereby empowered to administer an oath to all such 
 witnesses as are legally called before them." 1-i & 15 Vict. c. 99, s. 16. Hence 
 there is no need to provide for that. Sometimes the agreement provides that 
 the reference shall be to an arbitrator to be appointed by some third party or 
 firm. This becomes an effectual submission when the aijpointment is made in 
 writing. Re Willcox, ubi supra. 
 
 There is no need to provide that the arbitrator may proceed ex jjttrte, for he 
 may certainly do so in a proper case. Eussell, 205 ; Nares v. Denny, 10 L. T. 
 N. S. 305. 
 
 But it may be well to provide that the arbitrator, arbitrators, or umpire, may 
 employ an accountant, valuer, or other expert, for any purpose connected with 
 the reference, and may take the opinion of counsel upon any question of law, 
 and may act on the report or opinion of any such accountant, valuer, or counsel, 
 and may make several awards instead of one, and every such award shall be 
 binding as to all matters to which it extends as if such matters were the only 
 matters referi-ed, and that notwitlistanding the other matters, or any of them, 
 be not then or thereafter awarded on, for these matters require to be specially 
 provided for. Re Eastern Counties Ry. Co., 3 De G. J. & S. GIO. 
 
 Death of a party befoi-e the award revokes the submission iinless otherwise 
 provided as above. Eussell, 170. 
 
 By Section 11 of the Act, it is provided that "Whenever the parties to any 
 deed or instrument in writing to be hereafter made or executed, or any of them, 
 shall agree that any then existing or future differences between them, shall be 
 referred to arbitration ; and any one or. more of the parties so agreeing, or any 
 person or persons claiming through or under him or them shall nevertheless 
 commence any action at law or suit in equity against the other pai-ty or parties, 
 or any of them, or against any person or persons claiming through or under 
 him or them in respect of the matters so agreed to be referred or any of them, 
 it shall be lawful for the Court in which the action is brought or any judge 
 thereof, on application by the defendant or defendants, after appearance and 
 before plea or answer, upon being satisfied that no suificient reason exists why
 
 24 AGEEEMENTS. 
 
 Form 9. such matters cannot be or ought not to be referred to arbitration according- to 
 
 the agreement ; and that the defendant was at the time of bringing such action 
 
 or suitj and still is, ready and willing to join and concur in all acts necessary 
 and proper for caiising such matters so to be decided, to make a rule or order 
 staying all proceedings in such action on such terms as to costs or otherwise, 
 as to such Coui't or judge may seem fit. Provided always that such rule or 
 order may at any time afterwards be discharged or varied as justice may re- 
 qiiire." See the cases of Willesford v. Watson, 8 Ch. 473 ; Gillett v. Thornton, 
 19 Eq. 599; Randall v. Thompson, 1 Q. B. Div. 748; Re Willcox, uhi supra; 
 Compagnie de Senegal v. Smith, W. N. 1883, 180 ; 49 L. T. 529. 
 
 By Section 72 of the Companies Act, 1862, it is provided that " Any comijany 
 under this Act may from time to time, by writing iinder its common seal, agree 
 to refer, and may refer to arbitration, in accordance with ' The Eailway Com- 
 panies Ai-bitration Act, 1859,' any existing or future difference, question, or 
 other matter whatsoever, in dispute between itself and any other company or 
 person; and the companies parties to the arbitration may delegate to the person 
 or persons to whom the reference is made, power to settle any terms, or to deter- 
 mine any matters capable of being lawfully settled or determined by the companies 
 themselves, or by the directors or other managing body of such companies." 
 
 And by Section 73 of the same Act, it is provided that " All the provisions of 
 ' The Eailway Companies Arbitration Act, 1859,' shall be deemed to apply to 
 arbitrations between companies and persons in pursuance of this Act : and in 
 the construction of such provisions, 'the companies' shall be deemed to include 
 companies authorised by this Act to refer disputes to arbitration." 
 
 The power given by these sections is but seldom exercised. The submission 
 must, it will be observed, be under seal. A reference in accordance with " The 
 Railway Companies Arbitration Act, 1859," has this advantage, namely, that it 
 ousts the jurisdiction of the Courts. See Watford, Sfc, Ry. Co. v. London ^ 
 N. W. Ry. Co., 8 Eq. 231. 
 
 The Act of 1859 contains a simple and complete code of regulations as to 
 references so made. It will be found at full length in Russell on Arbitration, 
 p. 818, and in Theobald on Railways, p. 415. It does not, however, enable the 
 arbitrator to award costs as between solicitor and client ; and though the sub- 
 mission can be made an order of Court on the aiiplication of any party in- 
 terested, yet there is no jDrovision dispensing with proof of execution, or as to 
 acting on opinion of counsel, &c., or as to death. It is well, therefore, to jjrovide 
 for these matters in the submission. The above clause (p. 21) can readily be 
 altered, so as to apply to a submission in accordance with " The Railway Com- 
 panies Arbitration Act, 1859." A submission may be so framed that no action 
 can be brought until after there has been a reference. See Scott v. Avery, 5 H, 
 L. Cas. 811 ; 25 L. J. Ex. 308; Edivards v. Aheravon, Sfc, Society, 1 Q. B. Div. 
 5G3 ; Dawson v. Fitzgerald, 1 Ex. Div. 257. 
 
 Form 10. Agrkhjikxt for Sale h Ixtknuej) C'uju'axy of the Business of a 
 Warehouseman. Vendors i/i Paktnership. Comideration : 
 Cash cnul Bifm-rod ^Sliares. \'ciidors to Covenant not to carry 07i 
 similar Business, and not to part u:ilh Shares for a pxed 'period. 
 
 Parties. AX AOREElMT made tliu day of , l)etwcen A., of , 
 
 B.^ of , C, of , and D., of , tradiiiu- in partiier.sliip together 
 
 as warelionsemcn, nnder tlic firm of M. A. and Co. (hereinafter called the 
 
 vendors) of tlie one part, and the Company, Limited (hereinafter 
 
 called the company) of the other part. 
 
 /
 
 t 
 
 FOEMS. OK 
 
 Wheeeas tho \-enclors have for sonic time past carried on Ixisiuess Form 10. 
 
 toi>-etlier in partnersliip as warehousemen at , in the citj of : j^gcitals. 
 
 And whereas the nominal eajjital of the company is oOU,OOU/., divided 
 into 15,000 shares of 20/. each, whereof r),OoO are to be called "A 
 shares," and to have certain preferential rights, and the remaining" 
 10,000 are to be called "deferred shares." 
 
 XOW THESE PRESEXTS WITNESS AND DECLARE aS follows : — Agreement 
 
 1. The vendors shall sell and the company shall purchase the follow- 
 ing property :— 
 
 First, all and singular the leasehold hereditaments belonging to the Tarcels. 
 said firm, which are specified in the first schedule hei'cto, subject as to 
 
 part thereof, namely, No. , Street, to the two several indentures 
 
 of mortgage for securing the principal sums of 15,000/., and 5,000/. and 
 interest, respectively S})ecit1ed in the same schedule ; 
 
 .Secondly, all the plant, machinery, and furniture, in and about the 
 said premises, and the chattels and efiects specified or referred to in the 
 second schedule hereto; 
 
 Thirdly, the stock-in-trade, and the benefit of all contracts and en- 
 gagements to which the vendors shall, on the day of next, be 
 
 entitled in relation to the said business ; 
 
 Fourthly, the good-will (a) of the said business, [with the exclusive 
 right to use the name of " ^I. A. & Co." (jr " ^1., lirothers," as part of 
 the name of a company, and represent such company as carrying on such 
 business in continuation of the said firm of M. A. & Co., and in suc- 
 cession thereto, and the right to use the words " late M. A. S: Co.," or 
 any other words indicating that the business is carried on in continuation 
 of or succession to the said firm.] 
 
 (a) The words in brackets are probably implied in the word " goodwill." Wall-e r 
 V. Levy, 10 C. Div. 43G. As to when an injunction vnll be granted to restrain 
 a vendor from interfering with the goodwill, see Lahouchere v. Dawson, 13 Eq. 
 322 ; Leggatt v. Barrett, 15 C. Div. 307 ; WalJcer v. Mottram, 19 C. Div. 355 ; 
 Dawson v. Beeson, 22 C. Div. 50i. 
 
 A conveyance of the goodwill may carry the benefit of covenants not to com- 
 pete by employes of the vendor. Jacoby v. Whltmore, -iO L. T. 335. 
 
 2. The consideration for the said sale shall be as follows, namely, for Consideration. 
 the property first mentioned, 52,330/. ; for the property secondly men- 
 tioned, 11,400/. : and for the property fourthly mentioned, 10,Ooo/. 
 
 The consideration for the property thii'dly mentioned shall be a sum Yahiatlon o£ 
 (^hereinafter called the valuation monies) eijual to the fair ^■alne thereof, ^*'^'^'^- 
 and so that any difference in regard thereto shall be referred to the 
 decision of two competent valuers, one to be appointed by the vendor 
 
 and the other liy the company [or by Messrs. of ], and the 
 
 submission may l)e made an order of the High Court. 
 
 Where a purchase at a valuation of any considerable subject-matter is in- 
 tended, it is desirable so to frame the contract that the valuation shall be an 
 arbitration within the Common Law Procedure Act, 1S5 1, otherwise serious oss 
 and inconvenience may ensue.
 
 36 
 
 AGREEMENTS. 
 
 Form 10. -■^'^ ag-reement to sell at a price to be fixed by valuers is not a submission to 
 
 arbitration within the meanino^ of the Act, for there is no " difference" between 
 
 the parties, and the Act only applies where the parties have agreed to refer 
 some difference. Collins v. Collins, 26 Beav. 300 ; 7 W. R. 115. Accordingly 
 in that case the Court refused to appoint an umpii-e on the valuers' default. 
 And where the Act does not apply the Court has no power to appoint a valuer 
 in the place of one who dies, or refuses to act, or to remit the valuation where 
 a mistake has been made. Where, however, the agreement is framed as above 
 the submission is within the Act. It is the more important to see that the Act 
 will apply, because, until the valuation has been effected, the Court cannot 
 enforce sijecific performance. Milnes v. Gery, 14 Ves. 400 ; Vickers v. Vichers, 
 4 Eq. 429 ; Tillett v. Charing Co., 26 Beav. 419; 5 Jur. N. S. 994. Sometimes 
 the contract provides that the difference " shall be referred to arbitration as 
 hereinafter provided," and contains the usual arbitration clause. Supra, p. 21. 
 See also Bos v. Helsham, L. E. 2 Ch. 79 ; Richardson v. Smith, 5 Ch. 048 ; Smith 
 V. Peters, 20 Eq. oil ; Milnes v. Gery, 1 i Ves. 400 ; Vickers v.Vickers, 4 Eq. 529. 
 
 The deferred 
 .-.hares to be 
 .;dlotted in 
 ])art satisfac- 
 tion of pur- 
 !-■ ha.se money. 
 
 How sliaves to 
 be allotted. 
 
 Ooinpany to 
 
 undertake 
 tlie two 
 jiiortgages. 
 
 How cash 
 portion of 
 the purchase 
 money to he 
 liaid. 
 
 "When yiwv- 
 •cliase to be 
 completed. 
 
 "Meantime 
 vendors to 
 carry on the 
 business. 
 
 4. The said sums of r)2,f>30/., •),400/., and 10,00(»/., and tlie sum of 
 l.S8,270^.. part of the amount of va.hiation monies pursuant to clause 3 
 liereof, making together 2(»0,0<)0/., shall be paid and satisfied l)y the 
 allotment to the A'endors of the said 10,000 deferred shares in the 
 company, on each of which shares the sum of 20L shall l)e credited in 
 the books of the company as having been paid up. 
 
 5. The said 10,000 deferred shares shall be allotted to the vendors in 
 the proportions following : namely, to the said A. ■4:,(»0() of such shares, 
 to the said B. 2,500 of such shares, to the said C. 2,000 of such shares, 
 and to the said T). the residue of such shares. 
 
 (!. The company shall undertake and pay the said mortgage debts of 
 l">,00(i/. and 5,000/., and all interest to become due thereon as from the 
 
 day of , and shall indemnify the A'endors respectively, and their 
 
 respective heirs, executors, administrators estates and effects from and 
 against payment of the said mortgage debts and interest, and from and 
 against all actions, claims and demands, in respect of the said indentures 
 of mortgage or either of them. 
 
 7. The residue of the valuation monies shall be paid in cash, as to 
 30,000/., part thereof, at the time fixed Ibr the completion of the pur- 
 chase, and as to the residue by three e(iua.l instalments, on the 
 
 day of , the day of •, and the day of ; and any 
 
 instalment not paid at the time hereby ai)})ointed for the payment 
 thereof shall thenceforth, until payment, bear interest at the rate of 
 5 per cent, per annum. 
 
 <S. The purchase shall be completed on the — day of next, 
 
 and at four o'clock in the afternoon of that da.}' possession of the property 
 agreed to be hereby sold shall be given to the ('((mpany, provided that 
 the company shall duly pay the said sum of 3(),(ioo/. and allot the said 
 shares pursuant to clauses r> & 7 hereof. 
 
 I). Jn the meantime the business shall be carried on by the vendors in 
 tlie ordinary and usual manner, so as to maintain the business as a going 
 concern without unduly pressing sales, and no sales being made except 
 in the ordinary way of business and at the ordinary profit.
 
 FORMS. 27 
 
 10. As from the day of uext until tlic time fi.xed for com- Form 10. 
 
 pletion the vendors shall be considered to be carrying on the said business ];„j,iness^ 
 on account and for the benefit of the company. belong to ■ 
 
 11. On or at any time after the day of next, the vendors froiu^'^'^Jay 
 
 shall at the expense of the company execute and do all such assurances certain. 
 and things as may reasonably he required by the company for vesting in As to assur- 
 
 -, 11 1 11 "i • • 1 -i j_i r 11 T ni. aiices and 
 
 it the pro})erty agreed to ))e herel)y sold, and giving to it the full henent tilings for 
 
 of the said sale. canying sale 
 
 r.n 1 1,1 /■ ,1 , • 1 Ti 1 ±- 1 i'lto effect. 
 
 12. Ihe vi-ndors sliall iirocuve Irom the respective landlords ot the ,, , 
 
 • 1 1 1 1 1 ■ T 1 ■ 1 T r i-i veiKlors to 
 
 said leaselKild premises any licences -which may lie necessary i(ir tlie pj-ocm-g licence 
 
 assignment tliereof i)ursuant to this agreemt. *° assign 
 
 nil 1 1, ■ 1 -r "\ ^ -,11 ,• i leaseuolds. 
 
 13. iiie company shall nidemniiy the vemlors against all actions and y i . * r, 
 
 proceedings, claims and demands, in respect of the said contracts and indemnified 
 engagements in relation to tlie said business, the benefit whereof is i'-'""''*^^""' 
 
 '^ ® ' tracts, &c. 
 
 agreed to be hereby sold. 
 
 14. The company shall l)e entitled to the Ijenefit of the current fire 
 insurance of the said leasehold premises and stock in trade. 
 
 15. The vendors shall discharge all outgoings in respect of the said Outgoing.--. 
 leasehold premises njj to the day of next, and as from that 
 
 clay the company shall discharge the same, and such outgoings shall if 
 necessary l)e apportioned for the purpose of this clause. 
 
 1(». All books of account of the said firm, and all books of reference Books of 
 to customers, and all other l)Ooks and documents of the said firm (except account, 
 such as relate exclnsively to the private affairs of the said firm or the 
 individual members thereof), shall Ije delivered by the vendors to the 
 comjiauy on possession being gi\en of the premises, pursuant to the pro- 
 vision in that ])ehalf hereinl)efore contained, and the company shall 
 thenceforth, subject to the following pro^'iso, be entitled to the custody 
 thereof, and to the use thereof for the purposes of carrying on its 
 business, but the vendors shall have free access, at all reasonable times, 
 to such of the said books and documents as show or relate to the out- 
 standing book-debts and credits of the vendors, or may otherwise be 
 reciuisite for enabling the vendors to collect and get in the assets of the 
 said firm not hereby agreed to be sold, and to liquidate the affairs thereof; 
 
 17. Provided always that when and so soon as any of the said books of rroviso. 
 reference and other books shall cease to be necessary for the carrying cm 
 
 of the said business, the same shall be delivered over to the vendors, who 
 shall thereupon l)ecome absolutely entitled thereto. 
 
 18. The vendors shall be entitled to such accommodation as they may Accouiiiiod;i- 
 reasonably require in the coimting-house of the company, in the said ^°".'" '^^'^'^ ^"^ 
 
 , ° r V ' lie given to 
 
 leasehold premises, for the purpose of collecting the book and other debts vendors, 
 due to the said firm in respect of the said business and liquidating the 
 affiiirs thereof; and the vendors shall make all such book and other 
 debts payable at the said })remises, and at no other place, the object 
 being to secure the continued resort of the customers of the said firm to 
 the said premises, and so to give to the company the full benefit of the 
 good-will of the said Imsiness.
 
 28 
 
 AGREEMENTS. 
 
 Form 10. 
 
 Vendors to 
 hold shares 
 for certain 
 period. 
 
 1!). Each of the veudors shall upon the request and at the costs of the 
 couiiDany enter into a covenant with the company that he will not during 
 the period of twenty years from the date hereof either solely [see siqora, 
 ]}. 9, clause 8, mutatis mutandis.'] 
 
 '20. Each of the vendors shall, if he shall so long live, retain and hold 
 in his own name the whole of the shares to be allotted to him pursuant 
 to clause 5 hereof for- a period of six calendar months from the allotment 
 thereof, and shall retain and hold in his own name at least 75 per cent. 
 of the said shares for a j^eriod of five years from the time of such allot- 
 ment {h). 
 
 (6) Such a clause as the above is occasionally inserted. 
 
 21. Unless [sujjra, p. 17]. 
 
 22. The company shall cause [supra, p. 10]. 
 
 As WITNESS, &C. 
 
 [.4^/^/ sHu'dulcs contahiiiKj (1) dcscriid'wn of leasehold promises and 
 mortija(je^, and (2) imriirulars of chattels and ejf'ecfs referrinf/ lo an 'in- 
 ventor tj.] 
 
 Parties, 
 
 Agreement for 
 .sale. 
 
 Inspection 
 
 Form 11 Agreement for Sale to Co:\irANY of Forei(;x Mixes. 
 
 AX AGPtEEMT made the day of , between A., of , in 
 
 the Repul)lic of (hereinafter called the vendor), l)y B., his attorney, 
 
 of the one part, and The ■ Co, Limtd (hereinafter called the co), of 
 
 the other part : "VYhhrej!Y it is A(Ireei) as follows : — 
 
 1. The vendor shall sell, and the co shall purchase the mines, minium- 
 rights, mills, stamps, orehouses, plant, machinery plant, stock, ore, and 
 other property and rights si)ccified in the first schedule hereto, and 
 hereinafter called the scheduled jiremises. 
 
 2. The CO shall, with ail reasonable desjiatch, direct W., or some 
 otliei' competent person, to inspect and report upon the value of the 
 scheduled premises, and unless tlie report of such person shall be deemed 
 satisfactory ))y the company, the company shall be at liberty, by notice 
 in writing to the sd B., to rescind this agreemt, j^rovidcd such notice be 
 given before the ■ day of . 
 
 Title. o. The vendor sliall make out to the satisfaction of the company a. 
 
 good title to the scheduled premises, according to the laws in force in 
 the said Re])ublic, free from all incumbrances, except any royalties 
 imposed by the Alining Code of the sd Bepublic. 
 
 Consideration. 4. The cousou for the sd sale shall be 1()(),(M)0/., whereof 
 2o,0()o/. sliall be })aid in cash, and the balance shall l)e satisfied by the 
 issue to the vendor or his nominees of debentures for securing f>0,000/., 
 
 and r),<)(io loJ. .shares of the company, to he nnm1)ered to 
 
 inclusive, and to be considered for all purjxjses as fully paid up.
 
 FOEMS. 
 
 29 
 
 r». The sale shall be completed at L., in the sd Eepublic, on the Form 11. 
 
 day of , when the vendor shall duly transfer the scheduled iireniises " 
 
 1 •, • 1,1 -r- , n . ■ , , -1 Completion. 
 
 to the company or its nominees, and the certiricates or title to the sd 
 
 r),()00 shares, and the sd debentures shall be handed over to the vendor. 
 
 The coin])any shall cause its agent to be api)ointed as hereinafter 
 
 mentioned to transmit to it telegraphic information of tlie completion of 
 
 the sd transfer. 
 
 G. The company shall, before the time for completion, execute the sd Transmission 
 
 certificates and del>entures, and transmit the same to L,, there to lie °^ certificates 
 
 . and debentures, 
 
 ready for issue at the time for completion. Each of the sd certificates 
 
 shall comprise — — shares, and the sd debentures shall be in the form 
 
 set forth in the second schedule hereto. 
 
 7. The company shall also appoint some person in L, to lie its ^.^^^j. 
 
 attorney or agent, witli full powers in relation to the completion of the 
 
 sale, and shall notify such a]ipointmeiit to the vendor or not less than 
 
 days before the time for completion. 
 
 Deposit. 
 
 8. Xot less tlian days before tlie time for comiiletion the 
 
 comimny shall pay the sd sum of 20,000?. cash to J. & D. u])on trust t( 
 
 place the same on deposit in their joint names at the Bank, in the 
 
 City of London, and to keep the same there deposited until they shall 
 "be satisfied that the scheduled i)remises have been duly transferred in 
 accordance with clause 5 hereof, and thereupon to withdraw the ^d 
 
 deposit and any interest, and pay the same to , the vendor's 
 
 agent in London, or as he shall direct. If this agreemt shall be re- 
 scinded under clauses 2 or 11 hereof, the sd deposit and interest shah 
 be forthwith withdrawn and paid over to the company. 
 
 1). Possession of the scheduled premises shall lie given to the company possession 
 at the time for completion, and the vendor shall in the meantime keep 
 the same in good repair and condition, and shall Avork the mines and 
 mills in as full and effectual a manner as the same have hitherto l»een 
 
 worked. As from the day of the vendor shall be deemed to 
 
 have been carrying on the sd mines and mills for tlie benefit of the 
 company ; and he shall account to the company for all monies and other 
 benefits received, and shall be indemnified liy the company against all 
 expenses whilst so caiTying on the same. 
 
 10. The vendor shall pay all the costs of and incidental to the prejia- Vendor to pay 
 ration and execution of this agreemt, and of the memorandum and i>i-eiitainary 
 articles of association of the company, and of the registration thereof, ^^^'^°*^^' 
 and of all stamps, fees, and legal expenses incident to the formation of 
 the company, and generally of all preliminary expenses whatever in- 
 curred in relation to the company up to the incorporation thereof ; and, 
 if the result of the inspection to be made pursuant to clause 2 hereof, 
 shall be unsatisfactory to the company, or if the vendor shall fail to 
 «how a good title to the sd premises, the vendor shall also pay the costs, 
 charges, and expenses incurred by the company in relation to such 
 inspection, but so that such last-mentioned costs, charges, and expenses 
 shall not exceed 1.
 
 :30 
 Form 11. 
 
 Rescission. 
 Notices. 
 
 AGEEEMENTS. 
 
 11. Unless before, &c. [Form 3, clause 5.] 
 
 12. For tlie purposes of this agreciueiifc any notice may be given to 
 
 the vendor l)y leaving the same for him at the Bank in L., or (at 
 
 the option of the company) by leaving the same at No. — , Street, 
 
 in the city of London ; and any notice so left shall be deemed to havo 
 reached the vendor at the expiration of forty-eight hours after it 
 is so left. 
 
 In witness, &c. 
 
 [AfhJ srhedulrs- 
 of dehoniuro.'] 
 
 -(1) containing particuJws of mines, ^-c, and (2)fornt 
 
 Form 12. Agreement hi/ Company adopting contract jiade, on its behalf, 
 BEFORE ITS incorporation. For indorsement OH Original contracf. 
 
 Parties. 
 
 AN AGREEMT made this 
 
 day of 
 
 Recitals 
 
 Adoption. 
 
 -, between A., of &c., 
 
 of the first part, B., of, &c., of the second part, and The Co, 
 
 Limtd (hereinafter called the company), of the third part. Whereas, 
 since the execution of the within written agreemt, the company has been 
 incorporated in accordance with the intention in that behalf referred to 
 in such agreemt : 
 Now it is hereby mutually agreed as follows : — 
 1. The within written agreemt is hereby adopted by the company, 
 and shall be binding on the company in the same manner, and be read 
 and construed in all respects as if the company had been in existence at 
 the date thereof, and had by these presents ratified the same. 
 B. disci] ai-geil. 2. The sd B. shall from henceforth be discharged from all liability 
 under or in respect of the sd agreemt. 
 In avitness, &c. 
 
 Where a contract is raade on behalf of an intended company [as above, 
 pp. 1, 7], it is requisite to take steps to bind the company when it comes into 
 existence. It used to be thought that a company could ratify such a contract, 
 but it is now settled that it cannot. Em-press Engineering Co., 16 C. Div. 125. 
 By acting on the contract it might become bound on equitable principles, 
 Pntchard's Case, 8 Ch. 960; but the usual plan is to execute an agreement as 
 above, so as to effect a novation of contract. 
 
 Form 13. A(iRKRMENT hj Company adopting, with modifications, contract 
 
 made before its incorporation. 
 
 Recitals. Parties : the company, 1 ; [the vendor, 2 ; A., 3. "\Vheri<;as by 
 
 an agreement (hereinafter called the preliminary contract) dated, &c., 
 and made between the vendor, of the one part, and the said A., as trustee 
 for the company (which was then intended, and has since been formed
 
 FOEMS. 
 
 31 
 
 under the Companies Acts, 18G2 to 1883), of the other part, it was Form 13. 
 agreed that the ^•endor shonld sell, and the company shonld purchase 
 certain property upon the terms, and subject to the stipulations therein 
 expressed : Axj) wiiEitEAS a copy of the jireliminary contract is set 
 forth in the schedule hereto : 
 
 Now THESE PRESENTS WITNESS AND DECLARE aS foUowS : — 
 
 1 . The preliminary contract is licrel)y adopted by the company, and Adopting 
 shall (subject as hereinafter provided) be bindino; — [«s in Form 11, Preliminary 
 .7.1]. 
 
 2. The time for the completion of the sale shall be postponed to the Completion. 
 day of . 
 
 3. If at the time for completion less than 10,000 shares in the Modification of 
 company's capital have been taken up, the cash portion of the purchase- *^""^ °^ ^''^^^■^ 
 money, viz., 50,00<)/., shall be satisfied as to 20.000/. by the issue to the 
 
 vendor, or his nominees, of 2,000 fully jmid-u]) ] 0/. shares in the 
 company's capital, and as to 30,000/., as follows : — that is to say, at the 
 time for completion, one moiety of the then capital monies of the com- 
 pany shall 1)0 paid to the vendor, and the other moiety shall be retained 
 by the company for its general purposes ; and out of the capital monies 
 subsequently paid up the company may retaiii for its general purposes 
 any sum not exceeding .").O00/., and, subject as aforesaid, shall j)ay such 
 capital monies, as and when received, to the vendor until the residue of 
 the said sum of 3<),<i(»u/. has been paid, at the rate of 5 per cent, per 
 annum, as from the time for completion to the time of actual payment. 
 And, unless Avithin six calendar months from the first allotment of the 
 company's shares, the whole of such residue has been paid, the company 
 may at any time thereafter satisfy the balance thereof, then remaining 
 unpaid, by issuing to the vendor or his nominee fully-paid up shares to 
 be regarded as of i^ar value {or the balance shall therefore immediately 
 become payable in cash). 
 
 4. If at the time for completion less than — — shares shall have been When transfer 
 taken up, then upon payment of the amount hereinbefore made payable *° ''® effected. 
 at the time for completion, and upon the allotment of the said 2,00n 
 
 shares, the vendor will transfer the property to the company in accord- 
 ance with clause of the preliminary contract. 
 
 5. [_As in Form 12, d. 2.] p.. discliarged. 
 (1. Unless before the day of at least shares in the Tower to 
 
 company shall have been applied for liy responsible persons, either of rescind, 
 the parties hereto, of the first and third parts, may by notice in writing 
 to the other, annul the sale, and thereupon the preliminary contract and 
 these presents shall become void, save as regards this and the last pre- 
 ceding clause hereof. 
 
 G. Before any fully paid-up shares are issued under this agreemt a Filing 
 proper contract shall Ite filed with the Registrar of Joint Stock Companies, eont^act. 
 
 In witness, kc, 
 
 \^Add schedule containing copy of preliminary contract.']
 
 33 
 
 AGREEMENTS. 
 
 Parties. 
 
 Sale. 
 
 Consideration. 
 
 Form 14. AoREE^^iENTybr Sale of Ship to single Ship Company. 
 
 Parties: A., B., and C, "the vendors" (1), and "the com- 
 pany" (2). 
 
 1. The vendors shall sell, and the company shall purchase the steam- 
 ship specified in the schedule hereto, together with all the gear, stores 
 and other effects, and the l)enefit of all contracts and engagemts therein 
 mentioned. 
 
 2. The conson for the sd sale shall l)e 32,0<)0/., which shall he 
 satisfied as to OjOOO/. by crediting as paid up the eight shares which, 
 by the company's memorandum of association, the subscriljers thereto 
 (including the vendors) \\\\\c agreed to take \\\^ ; and as to the balance 
 (20,()(>0i'.) by the allotment to the vendors, in the proportions specified 
 in the second schedule hereto, of the remaining fifty-six shares in the 
 company's capital : such shares to be deemed for all pur})Oses fully paid. 
 
 Sometimes the vendors and their friends subscribe the memorandum for all 
 the shares. 
 
 €ompletion. o. The purchase shall be completed on the day of , and 
 
 thereupon the vendors shall transfer the sd steamship and premises to 
 the company, free from incumbrances. The company [^Fonn 9, cL U>.] 
 
 No diity is payable on the sale, transfer or other disposition of any ship or 
 vessel, or interest or jjroperty therein. See Schedule to Stamp Act, 1870. 
 
 4. This au'reemt shall forthwith be filed, supra, p. 1,5. 
 
 Ix AVITNESS, &C. 
 
 [Schcdides — {1} (jlv'uuj parlars of slip, ij-r. ; (2) shotring Jmv shares fo 
 he apportioned.'] 
 
 See note to Form 104, infra. Sometimes the agreement for sale provides for 
 the appointment of some of the vendors as managers at specified remunera- 
 tion ; but it seems better not to disclose this in an agreement which must be 
 filed. 
 
 Form 15. 
 
 Parties. 
 Sale. 
 
 Option to pay 
 in shares. 
 
 Agreement /fy Sali-: o/" Concession to Pro^ioter, vho is to form 
 
 Company. 
 
 Parties : A., 1 ; and B., 2. 
 
 1. The sd A. shall sell, and the sd 11 shall purchase the concession 
 specified in the schedule hereto, and the full benefit thereof at the price of 
 50,000?., whereof 1. shall foi-thwith be paid to the said A. by Avay of 
 
 2. If before the day of [the time for completion] the sd 
 
 B. shall have resold the sd concession to a company duly formed under 
 the Companies Acts, 1802 to 188:5, for the purpose, inter alia, of ac(|uir- 
 ing and carrying out the sd concession, and with a nominal capital of 
 200,000/., divided into 20,000 shares of 10/. each [and with a working
 
 FORMS. 33 
 
 cajtital of /. at the least], the said B, shall have the option of satisfy- Form 15. 
 
 iii<^- any i)art of the balance of the pnrchase-money not exceeding "" 
 
 40,000/., by procuring the a,llotnient or transfer to the sd A. of fully 
 paid-up shares in such company to l)e treated as of par \alue. 
 
 3. The said A. shall show a good title to the sd concession in himself Title. 
 or some other person willing and bound to conAcy by his direction, and 
 shall prove that the concession is valid and in full force, and shall duly 
 transfer the same to the sd B. or his nominee at or before the time for 
 completion hereinafter fixed. 
 
 4. The purchase shall be completed on the day of next, at Completiou. 
 
 -, or at such other place in the city of London as the sd B. shall 
 
 fix, and thereupon the pnrchasc-m(»ney shall ])C paid or satisfied as here- 
 inbefore provided. 
 
 .). The sd B. shall liefore the time hereinbefore fixed for completion Report of agent. 
 ap]ioint some competent agent in • — — to examine and report on the 
 title to the sd concession and to certify the transfer thereof, and a 
 telegram from such agent stating that the title is satisfactory and that 
 the transfer is complete shall be sufficient evidence of the facts. 
 
 C. The said B. may at any time before the day of next, l)y Rescission. 
 
 notice in writing to the sd A., annul the sale, and if the said purchase- 
 )noncy shall not be paid or satisfied at the time and in manner aforesaid, 
 then and in such case the sd A. may at any time afterwards Ijy notice in 
 writing to the sd B. annul the sale. 
 
 7. If the sale is annulled under this clause the deposit shall be for- Forfeiture of 
 felted to the sd A., and neither party shall have any claim against the '^^^''^^■ 
 other for expenses, damages, or otherwise. 
 
 IX WITNESS, &c. 
 
 \^The SchcihiJo containing 2)artkuhrs of concession.'] 
 
 Not iincomiuonly an agreement as above is made without any provision for 
 a deposit, so that practically it imposes no liability on the purchaser. 
 
 The promoter, having secured the agreement, forms his company, and enters 
 into an agreement with the company for the sale of the concession at an advance 
 in price. There is no objection to such an arrangement, provided that due 
 disclosiu-e is made to the company. But great care must be taken in framing 
 the prospectus. Ross v. Estates Investment Co., 3 Ch. 089. 
 
 Remuneration of Promoters. 
 
 In most cases the promoters of a company expect liberal remuneration for 
 their services, and sometimes it is fairly deserved : nor is there any objection 
 thereto, provided that due disclosure is made to the company. The mode of 
 remuneration is usually settled by the promoters themselves, and the following 
 are several of the modes commonly adopted : — 
 
 (1.) The promoters purchase, or agree to purchase, property and sell it at 
 
 a profit to the company. 
 (2.) The promoters undertake to form a company and procure it to purchase 
 property, and the owner agrees to give them a commission payable 
 either in cash or in paid-up shares. The contract with the company- 
 should i-ecite the agreement. 
 
 D
 
 84 
 
 AGREEMENTS. 
 
 Form 15. ("^O "^^^ promoters agree to pay the preliminary expenses, or to place a 
 
 certain number of shares, in consideration whereof the company 
 
 agrees to allow them a commission. 
 
 (1.) The capital consists, in part, of a small nvimber of shares — e. g., 100 of 11. 
 each. These shares are called " deferred," or "B," or "founders," 
 and a right to a certain share of the surplus profits is annexed thereto 
 — e.g., one-third after jjaying a 6 per cent, dividend on the other 
 shares. By agreement between the comjiany and the promoters 
 (referred to in the articles) these shares are issued as fully paid up. 
 Sometimes the promoters subscribe the memorandum of association 
 for such shares, and pay for them in cash, so as to avoid the necessity 
 of filing a contract. 
 
 (5.) The promoters agree to pay the preliminary expenses, &c., in con- 
 sideration of a commission on the nominal amount of the capital. 
 
 (G.) A contract is made under which the promoters receive a commission 
 provided a certain number of shares are taken up within a certain 
 period. The articles refer to this contract. 
 
 (7.) The articles of association authorise or direct the directors to pay a 
 certain sum to the promoters. 
 
 In determining the mode of remuneration, it shovild be borne in mind 
 that — 
 
 (a.) Disclosure is essential [see infra, p. 239] : 
 
 (6.) It should be seen that the executive of the company is independent : 
 
 (c.) Having regard to s. 38 of the Act of 18G7, it is desirable to avoid a 
 number of contracts [see infra, p. 242] : 
 
 {d.) The remuneration should not be excessive, otherwise it will invite hostile 
 criticism, if not proceedings. 
 
 Form 16. AfiEEEMEXT It/ Promoter fo Pay p-eliminari/ Expenses i/i considcra- 
 
 fion of pari of I he Vendor's Shares. 
 
 Parties. Parties, A., 1 ; B., 2. 
 
 Eecitals. "VVhereas, the saicl A. lia.s entered into an agreement (hereinafter 
 
 called the scheduled contract) with the Limited (hereinafter called 
 
 the company), for the sale of certain patents and other property to the 
 company in consideration of 20,000/., whereof 15,000/. is to be satisfied 
 by the allotment to the sd A. of 1,500 fully paid-up lU/. shares in the 
 capital of the company : And avhereas by the scheduled contract it is 
 amono- other things provided that the sd A. shall pay all the prelimi- 
 nary expenses, that is to say, &c., down to the first allotment of shares : 
 And whereas the pr(jspectus, a copy of which is hereunto annexed, 
 has been approved by the board of directors of the company, and the 
 sd A. has obtained their authority to advertise the same at his own 
 expense. 
 
 What B. to do. Now therefore IT IS AGREED aS follows : 
 
 1. The sd T». shall advertise and circulate the said prospectus in 
 accordance with the scheme set forth in the schedule hereto, and shall
 
 FORMS. 35 
 
 nsc his best endeavours to induce persons to apply for shares in tho Form 16. 
 company. ^^ 
 
 2. The said B. shall pay all the preliminary exjienses of the company Furtker. 
 specified in the scheduled contract, and shall indemnify the sd A. 
 against all proceedings, claims, and demands in rc&pect thereof. 
 
 ;>. If the sd B. shall duly perform his obligations under clauses 1 and ConsiJeration. 
 
 2 hereof he shall be entitled to of the said 1,500 fully paid-up 
 
 shares, and the sd A. will procure the company to allot the same to him 
 accordingly. 
 
 4. Unless before the day of next shares at the least Conditions. 
 
 in the capital of the company shall lm^■e lieen taken up the sd B. shall 
 forfeit all claim to the sd fully paid-up shares, and, save as hereinbefore 
 expressly provided, the sd B. shall not be entitled to any remuneration for 
 his services in respect of the premises. 
 
 Ix "WITXESS, &c. 
 
 [Schedvle.'] 
 
 Agreement wiili peomoter to pay prelimixary expenses in con- Form 17. 
 sideraiioii of commissiox. ~ 
 
 AN AGREEMENT, &c. Parties : Company, 1 ; A., 2 : Faities. 
 
 Whereby it is agreed as follows : — 
 
 Whereas a prospectus of the company (whereof a copy is hereunto Recital. 
 annexed) is about to be pulilished and circulated in accordance with the 
 scheme set forth in the schechde hereto : 
 
 Now therefore it is agreed as follows : — 
 
 1. The sd A. shall pay all the preliminary expenses of tho company, A. to pay the 
 that is to say, all the costs, charges, and expenses of and incidental to preliminary 
 
 expenses. 
 
 the preparation of the sd prospectus and the pu])lication and circulation 
 thereof in accordance with the sd scheme, and of and incident to the 
 preparation, execution, and registration of the company's memorandum 
 and articles of association, and of these presents, and all other expenses 
 of and incident to the establishment of the company down to the first 
 allotment of shares therein, or if the directors of the company, shall 
 
 within the period of weeks from the date hereof resoh'c not to 
 
 proceed to allotment then down to the date of such resolution : [Pro- 
 vided that the company shall Ije bound to proceed to allotment if more 
 
 than shares are hond fide applied for within the sd period]. And 
 
 the sd A. shall indemnify the company and the directors thereof from 
 and against all proceedings, claims, and demands in respect of the 
 sd preliminary expenses. 
 
 2. In consideration of the jiremises the company shall, within 1-4 days Consideration, 
 after the first allotment of shares, pay to the said A. a commission 
 
 at the rate of [1] per cent, on the nominal capital of the company, viz., 
 
 D 2
 
 36 AGEEEMENTS. 
 
 Form 17. ''., Init in the event of sueli resolution as aforesaid being passed 
 
 ■ ~ the sd A. shall not Ijc entitled to any remuneration in respect of the 
 
 premises. 
 In avitness, &c. 
 
 [Schedule: sltoin'/i// ihe neivsfa/wrs in which advertisements are to 
 appear, the minimnm nuinher in each, and the numher of prospectuses to he 
 circulated, cjr.] 
 
 It is a common thing to enter into an agreement as above, but the commission 
 ought to be moderate, otherwise questions of ultra vires may be raised. Guiness 
 V. Land Corj}., 22 C. Div. 38.3. 
 
 rorm 18. Agbeemext hi/ promoter to guarantee the placixg of two-thirds of 
 the CAPITAL in consideration of founders' shares. 
 
 Parties. 
 Kecital. 
 
 'Guarantee. 
 
 Further 
 jjrovision. 
 
 Consideration. 
 
 AN AGEEEMENT. Parties : Company, 1 ; A., 2 : 
 
 Whereas the capital of the company is /., divided into 
 
 ordinary shares of /. each and 200 founders' shares of 1/. each: 
 
 And avhereas a prospectus, &c. [as in Form ] : 
 
 Now THEREFORE IT IS AGREED AS FOLLOWS : — 
 
 1. The said A. hereby guarantees that two-thirds at the least of the 
 said ordinary shares shall be lond pde applied for in accordance with the 
 terms of the said prospectus before the day of . 
 
 2. If two -thirds of the sd shares at the least shall not haA'e been 
 
 so applied for before the sd day of the sd A. will, within 
 
 days afterwards, take or cause to be taken on the terms of the sd 
 prospectus so many of the sd ordinary shares as with those then already 
 applied for as afor,esaid shall make up the sd two-thirds. 
 
 3. In consideration of the premises the company shall, provided that 
 two-thirds of the sd ordinary shares are ionil fde applied for upon the 
 
 terms aforesaid before the day of , immediately after the 
 
 sd day of , allot to the sd A. or his nominees the sd 200 
 
 founders' shares, Avhicb shall be considered for all purposes fully paid up 
 [or, and the sd A. will, on such allotment l»eing made, pay or cause to 
 1)0 paid to the company the full sum of 1^. per share in respect of each 
 of the sd founders' shares]. 
 
 In WITNESS, &c.
 
 FORMS. 37 
 
 Agreement as to issue of paid-up shares pursuant to another Form 19. 
 
 CONTRACT 7Wt filed. ' ~ 
 
 AN AGREEMENT luadc the day of • l.ftwecn, &c. [as Parties. 
 
 iu Form ^]. 
 
 Whereas, by an agreement dated, &c., and made l)etween tlie vendor Recitals, 
 of the one part and A. B. on behalf of the company (then in conrse of 
 formation) of the other part, it was agreed tliat the vendor should sell 
 
 certain property known as the mines, and that the consideration 
 
 for the said sale should be the sum of /., whereof 5,000/. was to be 
 
 satisfied by the allotment to the vendor on or before the day 
 
 of of 50U fully paid-up lo/. shares of the company: And whereas 
 
 the said agreement has been duly adopted by the company: Now 
 these presents witness that it is hereby agreed as follows : — 
 
 1. The company shall forthwith cause this agreement to l)e filed with Filing 
 
 the Regis, of J. S. Comp. agreement. 
 
 2. On the day of next [the time fixed by the agreement], Allotment of 
 
 the company shall allot to the \endor or to his nominees fully })aid- ^^^^^*^^- 
 
 np shares in the company. 
 
 .". The said shares shall be numbered, Szc, and shall be accepted by Numbers, &i\ 
 the vendor in full satisfaction of the said sum of 5,000/. 
 
 As witness, &c. 
 
 Sometimes {supra, jj. 12), it is not considered desirable to file the main contract 
 for the acquisition of the company's undertaking, and accordingly a short 
 contract as above is filed. This would seem to be a sufficient compliance with 
 s. 25 of the Act of 1867. 
 
 Agree^ient to Issue Paid-up Shares in Satisfaction of Debt Form 20. 
 
 DUE hi/ COJ[PANY. 
 
 AN AGREEMENT, made the day of , between The A. Parties. 
 
 M. B. Company, Limited (hereinafter called the A. Company), of the 
 one part, and the C. D. and E. Company, Limited (hereinafter called 
 the C. Company), of the other part. Whereas by an agreement, dated Recitals. 
 
 the day of , and made between the C. Company, of the one 
 
 part, and the A. Company, of the other part (being the agreement No. 1 
 referred to in the introduction to the articles of association of the A. 
 Company), the A. Company agreed to pay the C. Company for the works 
 and matters undertaken by the C. Company in connection with making 
 
 and constructing a dock at the sum of 225,000/., whereof the sum 
 
 of 75,000/. is payable by instalments in manner therein mentioned : 
 And whereas an instalment of lo,000/., part of the said last-mentioned
 
 38 
 
 AGEEEMENTS. 
 
 Form 20. 
 
 The A. Com- 
 pany to allot 
 1000 shares ; 
 
 to be deemed 
 fully paid up ; 
 
 and to be 
 accepted by the 
 C. Company 
 instead of 
 cash. 
 
 sum, will become p;i3'aljlc to the C. Company on the day of 
 
 next : 
 
 Now IT IS HKREBY AOREEl) aS folloWS : — 
 
 1. The A. Company shall Ijeforc the day of next procure this 
 
 agTcemcnt to be filed with the Registrar of Joint Stock Companies. 
 
 2. The A. Company shall, on or before the day of next 
 
 allot to the C. Company or its nominees ],000 shares of 101. each in the 
 A. Company, which shares shall be deemed, for all purposes, to be fully 
 paid up, and shall 1)C numbered, in the books of the A. Company with 
 the numbers ■ to inclusive. 
 
 3. Tlic C. Company shall accept the said shares in full satisfaction 
 and discharge of the said instalment of 10,000/., and of all claims and 
 demands in respect thereof (a). 
 
 IX WITNESS, &C. 
 
 (a). As this instalment is not presently payable, this agreement requires to 
 be filed under s. 25 of the Act of 1807. If the instalment were presently pay- 
 able, the transaction would amount to a jjayment for the shares in cash, and in 
 that case it would not be necessary to file the agreement. See suxira, p. 14. 
 But even then it would be expedient to file it for the benefit of transferees, who 
 would thereby secure the preservation of evidence that the shares were in fact 
 paid w]} in cash. See supra, y>. 13. Where paid-up shares are to be issued in 
 satisfaction of a debenture not yet due, a contract should be filed. A%>pleyard's 
 case, 18 C. D. 587. 
 
 Form 21. 
 
 Parties. 
 
 AcfUEEMENT io AbLOT SHARES (it CI DiSCOUXT. 
 
 Recitals. 
 
 Filing agrcc- 
 incnt. 
 
 Allotment of 
 .shares. 
 
 AN ACxREEMENT, made the 
 
 day of 
 
 between The 
 
 Company, Limited (hereinafter called the Company), of the one 
 
 part, and A. B., the company's secretary, on behalf of the several persons 
 named in the schedule hereto (hereinafter called the applicants) of the 
 other part. 
 
 In this case it is assumed that each application declared: "1 hereby authorise 
 the company's secretary to enter into a proper contract on my l^ehalf to take 
 any shares you may be willing to allot me," or that the prospectus contained an 
 authority. 
 
 AVheheas the company recently issued a prospectus inviting applica- 
 tions for 10,000 1/. shares in the company at a discount of 2s. Gd. per 
 share, and each of the apph'cants is willing to take at such discount the 
 number of 1/, shares set opposite his or her name in the schedule hereto, 
 and has paid to company a deposit of 2^, Od. per share on such shares : 
 
 Now TlIEREFOllE IT IS AGREED aS follows : 
 
 1. The company shall fortliwith cause one part of this agreement to 
 be filed with the Registrar of Joint Stock Companies. 
 
 2. When and so soon as this agreement has been so filed, the company 
 shall allot to each of the applicants the number of M. sliares in the 
 capital of the company set opposite his or her name in the sd schedule.
 
 FOEMS. 89 
 
 3. In cousideration of the sum of 2s. Gd. per share already paid as Form 21: 
 aforesaid, and of the further sum of 15s. per share to be paid as to 5s. RepaTment. 
 per share on allotment and as to the balance when called for, each 
 of the shares so_, allotted shall be deemed for all purposes to be fully 
 paid up. 
 
 As WITXKSS, &C. 
 
 Xiiines, .idilresscs, anil ilcsuriptious of | Particulars of Share to be aUottt'd to 
 ai^ilicants. each aiiiilicaiit. 
 
 N. of 
 
 Ten shares numbered to 
 
 ■ inclusive. 
 
 
 
 
 
 Opinions differ as to •whether shares in a company formed luider the Companies 
 Act, 1SG2, can validly be issued at a discount. According to Lindley (035), it is 
 "to say the least, doubtful," and in Re Essex Brewenj Co., 30 L. T. SG2, Jessel, 
 M.E., appears to have considered that an issue of shares at a discount of 80 
 per cent, was idtra vires though it was not necessary to decide the point. On 
 the other hand, it was held by Chitty, J., in Re Ince Hall Co., 23 C. D. o-lo, that 
 it was legal when the directors (having large powers) considered the issue 
 beneficial to the company ; their shares were issued at a discount of 10 per 
 cent. But in Plashynaston Tube Co., 23 C. D. 542, Chitty, J., expressed doubts 
 whether an issue of shares at a discount of SO per cent, was legal. It is con- 
 ceived that in every case the circumstances must be regarded, and that if the 
 issue at a discount is made hon'i fide with a view to the company's benefit, it is 
 valid. Where a company is in want of funds it is obviously in the interest of 
 its creditors that the amount should be raised by the issue of shares rather than 
 by borrowing, for in the event of winding up, the shareholders can get nothing 
 till the creditors are paid, whereas lenders are of course entitled to prove. 
 
 Sujjpose a company in need of ^10,000. Which mode of raising the amount 
 is most for the interest of its creditors V—{a) by the issue of shares at a dis- 
 count of 50 per cent., or (6) by the issue of debentures ? In case («) the 
 creditors get ^10,000 additional security free from any claim by the contri- 
 butors ; whereas, in case (b), though the assets are increased, the liabilities are 
 increased pro tanto. Moreover the debentures might be issued at a discount 
 (infra, p. 2G1), and with interest at, say, 20 per cent, (ibid.) and as a first charge 
 on the assets. It is submitted that the issue of shares at a discount does not 
 in any way affect the creditors of a company. Before the Companies Act, 18G7, 
 there might have been ground for comijlaint, since a creditor might have said 
 that, looking to the returns, he believed the shares issued to have been paid up 
 in cash ; but, since the Act of 18G7, he can see from the contracts filed pursuant 
 to s. 25, whether any shares have been issued at a discount, or otherwise than 
 for cash. 
 
 Where a company arranges to acquire property in consideration of paid-up 
 shares, the amount will of course be fixed with regard to the actual not the 
 nominal value of the shares, e. g. where the shares are below par, say ,£1000 of 
 shares for ,£500 of property. There is no question that such a transaction is
 
 40 
 
 Form 21. 
 
 AGREEMENTS. 
 
 valid. And, if so, how absurd if the company could not issue the ^1000 of 
 shares for ^500 cash. Whether the members of a company have any cavise for 
 complaint must depend on the regulations, but it would seem that the general 
 Ijowers usually vested in the directors are amply sufficient to authoi-ize the issue 
 of shares at a discount (see infra, p. 151). Of course the agreement must be 
 filed pursuant to s. 25 of the Act of 1867 {swpra, p. 11). And, if so filed, it would 
 seem that, even if ultra vires, the allottees could not be held liable to contribute 
 beyond the agreed amount. Anderson' s case, 7 C. Div. 75 ; Ince Hall Co., ubi 
 siqira. And transferees without notice woiild be protected by Burkinshaw v. 
 Nicholls, 3 Ap. Gas. 1016. Nevertheless, until the validity of the issue of shares 
 at a discount has been settled, it must be admitted that such an issue is not 
 entirely free from danger, and it may be found better to raise funds by the issue 
 of profit debentures or debentures at a discount with power to convert into 
 shares. 
 
 Bonus Shares. 
 
 Sometimes it has been considered desirable to create and distribute, gratis, 
 among a company's members new shares, which are to be deemed fully paid uji. 
 Such shares, are generally called "bonus shares," and the issue of them is called 
 "watering the capital." 
 
 Bonus shares have been issued by a considerable niiniber of comijanies, and 
 in one well-known case to the extent of nearly a million and a half of nominal 
 value. However, since the dicta of the Court of Aj^peal in Be The Gold Co., 
 9 C. Div., 701, it is probable that the practice of issuing bonus shares will be 
 discontinued. It seems doubtful whether directors issuing bonus shares might 
 not, in some cases, be indicted for conspiracy to defraiid. See fiirther, British 
 Seamless Co., 17 C. Div. 467. 
 
 Sometimes a company reconstructs for the purpose of effecting such an 
 operation. See further, infra, " Eeconstruction." There is no objection to such 
 a scheme if the assets have really increased in value ; but otherwise it might 
 Savour of fraud. Re Gold Co., ubi supra ; Ambrose Lake Tin Co., 14 C. Div. 390. 
 
 Bonus shares issued gratis must be distinguished from shares issued by 
 consent in satisfaction of a bonus or dividend duly declared and warranted 
 on a bond fide balance sheet. See infra, pp. 158, 159. Such an issue may be 
 quite valid. 
 
 Form 22. Acjeeement for Ihi: 
 
 Parties. 
 
 Recitals, 
 
 Issue of Paid-up Shares hy way of lonus fo 
 Dei'.exture Holders, 
 
 AN AOrtEEMEXT made the 
 
 dav of 
 
 between The 
 
 Company, Limited (hereinafter called the company), of the one part, and 
 the several per.sons whose munes are sul)scribed hereto (hereinafter called 
 tlie debenture holders), of the other part: Whereas the company 
 recently issued a ])rosi)ectus offering to receiAC ajiplications for [lOOO] 
 
 debentures of the company of 1, each, and stating (^inter alia) that 
 
 the company would allot to the persons who should take such debentures 
 and ])ay the full amount there(»f to the company, one fully paid-up 
 
 /. sjiare in the capital of the company in respect of every such 
 
 <lcbenture taken by them respectively : And whereas each of the 
 debenture holders has taken up on the terms of the said prospectus the 
 number of such delientures set opposite his name, and has paid to the 
 company the full amount thereof :
 
 FORMS. 
 
 41 
 
 Now THERKFORE IT IS AGREED AS FOLLOWS: Foim 22. 
 
 1. Tlie company shall, <te. [clause 1, Foi'in 1], siqn-a'\. Filing agree- 
 
 •2. When aiul so soon as this aoTeeiiiciit shall ha^•e heeu filed as afore- "lent. 
 said, the company shall allot to each of the debentm-e holders the Allotment of 
 
 number of ■ -(. shares m the company also set opposite his name 
 
 in the schedule hereto. 
 
 o. Such shares shall be deemed for all purposes to be fully paid up, To l)e deemed 
 and shall be numbered, with the numbers set opjiosite the Uames of the ^^^' "^" 
 debenture holders respectively. 
 
 As WITNESS, the common seal of the company, and the hands of the 
 debenture lioldcrs the day, &c. 
 
 The Co:\laion Seal, &c. I l. s. 
 
 (Signatures of the tlebeiilure 
 
 Xuiuber of shares to be 
 iillotteil. 
 
 Denoting nuniT)evs of sh.ires to be 
 allotted, both inclusive. 
 
 
 From 
 
 To 
 
 
 
 
 It is not uncommon to provide for the issue of paid-up shares to persons 
 taking debentures ; and, provided a contract is duly filed before the issue, it 
 would seem to be a valid transaction. See In re Malaga Lead Co., Firynstone's 
 case, 20 Eq. 521; and Uruguay Central, cf*c., Co., 11 C. D. 372. 
 
 Sometimes the agreement is made, as in Form 21, the letters of application 
 having been framed, as there stated, or a paragraph having been inserted to 
 the effect tliat applicants will be deemed to have authorised the secretary, &c. 
 
 Occasionally, instead of a contract as above, the vendor agrees that as an 
 inducement to persons to take up the debentures, he will, out of the fully j^aid- 
 u}) shares issued to him by the company, transfer one or more of the shares to 
 the allottee of each debentiu'e. 
 
 As to s. 25 of the Act of ISG7, see su^rra, i>. 12. 
 
 Agreement irilh Trustees fo gnnrantco Dividends on Shares Form 23. 
 (d)OHt fo ho offered for Sale. 
 
 AX AGREEMENT, etc. Parties: (1) the A. Company; (2) the Parties. 
 B. Company : 
 
 Whereas the A. Com])any is entitled to fiOOO fully paid-up preference Recittvls. 
 shares in the capital of the B. Company, numbered to inclusive.
 
 42 
 
 AGEEEMENTS. 
 
 Form 23. 
 
 "Guarantee. 
 
 Payment. 
 
 Coupons 
 
 Tree from 
 «q\iities. 
 
 Tntcriin 
 dividends. 
 
 Beneficiaries. 
 
 and is about to offer the same for public sale : And whereas the said 
 shares are represented by share warrants to l^earcr which have been 
 issued to the A. Company : And avhereas it is intended to annex 
 to each of the said share warrants a certificate to the effect set forth 
 in the first schedule to these itresents and the shares comprised in 
 the said warrants are hereinafter called the guaranteed shares : And 
 whereas the A. Company intends to issue with each of the said share 
 warrants five interest coujions in the form set forth in the second 
 schedule hereto, and each of the said coupons is to mention the share in 
 respect of whicli it is issued, and to which of the first five years from the 
 incorporation of the company it is appropriated : And whereas the A, 
 Company, in order to dispose of the said (iOOO shares on the most favour- 
 able terms, has determined to execute this agi'cement : And whereas 
 
 the said and have agreed to become trustees for the purposes 
 
 thereof : 
 
 XOW THESE presents WITNESS AND DECLARE as follows : — 
 
 1. The A. Company guarantees that the B, Company shall, in respect 
 of each of the first five years next following the incorporation of the B. 
 Company, pay a dividend at the rate of 5 j^er cent, per annum on the 
 guaranteed shares, and that such dividend (hereinafter called the 
 minimum dividend) shall in res])ect of each of the said five years be paid 
 during such year or within three calendar niduths after the expiration 
 thereof. 
 
 2. As regards each of the said five years, if the B. Company shall not 
 pay the minimum diA'idend in manner aforesaid, the A. Company shall, 
 in respect of such year, })ay the minimum dividend on the guaranteed 
 shares, or such sum as, with the di^'idend, if any, actually paid by the B. 
 Company in respect of such year, shall amount to the minimum dividend 
 on snich shares. 
 
 ;5. The A. Com})any will recognise and shall be entitled to treat the 
 l)earer of each of the interest coupons intended to be issued with the 
 guaranteed shares as aforesaid as the absolute owner of the amount (if 
 anything) which shall l)ecome payable by the A. Company under the last 
 preceding clause hei'eof in respect of the share and year respectively 
 mentioned in such coupon, and the A. Company will, upon presentation 
 and delivery of such coupon, but not otherwise, pay the same to the 
 bearer of such coupon accordingly, and the delivery of such coupon shall 
 be a good discharge to the A. Company for the money so paid. 
 
 4. The bearer of each of the said interest coupons shall be entitled to 
 the payment of what, if anything, shall be payalile in respect thereof as 
 aforesaid, free from any e(juities between the company and any other 
 person. 
 
 5. In determining whether the B. Comi)any has or has not paid the 
 minimum dividend in resi)ect of any of the said five years, several divi- 
 dends, whether interim or otherwise paid in respect of such year, shall be 
 treated as one dividend for the purposes of tliese presents. 
 
 C. The holders of the said interest coupons shall respectively be 
 
 I
 
 FOEMS. 43 
 
 entitled to the benefit of the trusts hereliy declared, and may sue the A. Form 23. 
 Company aceordin,2;ly. 
 
 7. The statutory i)owcr of appointing new trustees hereof shall be New trustees, 
 vested in the A. Company. 
 
 In witness, &c. 
 
 [^First Schedidc ronfainin/j rncmoramlum as io ijiurantee.'] 
 [_S('Con<l Schedule containing ceriijuale and form of coiq)on.'] 
 
 Agreement for Transfer of Railway Concession and for Con- Form 24. 
 STRUCTiON of Railway. 
 
 Space can only be found for an outline of this contract. 
 
 AN ACREE^IEXT, &c. Parties : the company (1) ; the con- Tarties. 
 tractors (2). 
 
 Recitals : As to the concession, and as to the company's capital, and as Recitals, 
 to recognition of company in the Republic of : 
 
 'Now, &C., COVENANT AS FOLLOWS: 
 
 1. Contractors to vest the concessions in the company and pay all Terms, 
 expenses incident thereto. 
 
 2. Contractors to acquire all requisite land and rights, and to con- 
 struct and e(juip the railway in accordance with the specification, but 
 contract to prevail where specification and contract inconsistent. 
 
 3. AVorksto be carried out t<» satisfaction of com])any's chief engineer, 
 and also of government engineer. 
 
 4. Conti-actors to comply with all local laws, and to gi^■e all notices 
 to local authorities and others, and to pay all damages for default. 
 
 5. Contractors to prepare plans and to submit same for chief engineer's 
 approval, and all re({uisite modifications to be made. 
 
 (5. After commencing, contractors to proceed continuously, so as to 
 complete the works within three years from notice to proceed. 
 
 7. Provision for extension of time where delay caused by vis major 
 shipwreck, fire, strikes, itc, and penalty of 400/. per month for undue 
 delay. 
 
 S. Contract jirice r)00,000/. payal)le (c/), as to 50,000/., in cash on re- 
 ceipt of telegraphic infdrmation of vesting of concessions in company, 
 &c. ; (6), as to 2."),000/. in cash, on engineer's certificate, subject to re- 
 tention of — ])er cent, till /. accumulated as retention fund. 
 
 Certificates — how to l)e made. Payments to be on account merely. 
 Provision for final certificate ; (r) 2i)0,000/. in deferred shares. 
 
 9. Retention fund to be invested, and in due course transferred to 
 contractors. 
 
 10. Schedule of prices annexed not to affect contract price, and is 
 referred to merely for the purpose of regulating payments on account.
 
 44 AGEEEMENTS. 
 
 Form 24. n. Payineiits to be made as and 'when cliief engineer certifies. 
 Certificates to he granted, {a) on shipment of materials ; (h) for works 
 done in the Repuldic, notification Ity telegram ; (c) as to final certificate. 
 
 12. Inspection of material on shipment; examination during manu- 
 facture ; certificates thereon ; insurance of consignments ; bills of 
 lading and policies to be delivered to company ; goods paid for on 
 shipment to belong to company. 
 
 13. Contractors to undertake risk of transport, cost of marine insur- 
 ance, and loss of materials, even where payment made on shipment, and 
 title in company. Contractors to receive insurance moneys. 
 
 14. Chief engineer and his successors. 
 
 15. Kesident engineer to be appointed, who is to be deputy of chief 
 engineer ; his power to bind company ; his duties ; course if he fails in 
 his duty ; course if chief engineer does not give certificates ; engineer's 
 access to works, 
 
 10. Company's exemption from customs to eiiurc as far as may be for 
 contractor's Itenefit. Use of timber on waste land, ditto. 
 
 17. In case of increase in works and extension of guarantee, contract 
 price to be increased. 
 
 18. Engineers to l)e at liljerty to regulate progress of works. 
 
 19. Limited power for contractors to vary course and gradient of line. 
 &c. Variation by direction of company. Additional expense, how to 
 be met ; sa^■ing in expense not to diminish price, unless claimed by 
 government. 
 
 20. Delivery of line on completion. Lil)crty to deliver in sections of 
 not less than 10 miles. 
 
 21. Maintenance by contractors for six months after completion. 
 Certificate for maintenance. 
 
 22. Use of line by contractors. Use of rolling stock by contractors. 
 Contractors' materials, &c., to be carried by company — payment therefor. 
 
 23. Liberty for company to deduct from contract price all monies due 
 from contractor. 
 
 2i. Contract not to Ijc transferred, l)ut li])erty to sublet, contractors 
 remaining responsible. 
 
 25. Re-execution of improperly executed work. Removal of improper 
 materials. 
 
 2(). If contractor*! in default or insolvent the works may be taken out 
 of their hands, and company may complete or procure completion of 
 same at expense of contractoi'S. Disposition of surplus. Taking posses- 
 sion not to vitiate contract, or prejudice company's claim for 
 damages, &c. 
 
 27. If company in default for thirty days, contractors may suspend 
 works or determine contract if default continues for a further fifteen 
 days. 
 
 2H. Arbitration clause. 
 
 21). How notices to be given. 
 
 30. Contractors not I)ound to proceed until company gives them
 
 FORMS. 
 
 45 
 
 notice to proceed. Such notice not to be given until the whole of the Form 24. 
 preference shares taken up by responsible persons. 
 
 ol. If notice to proceed not given Avithiu three months, contractors 
 juay determine contract. 
 
 Ix WITNESS, &c. 
 
 [_)Sclii'did(' (oniaining i</)frificatio/>.^ 
 
 In the above case it will be observed that the contractors agree to vest the 
 concession in the company, and to execute the works for a lump sum. It is a 
 jjlan very commonly adopted, not onl^'' as regards foreign railways, docks, 
 tramways, and other undertakings, but as regards English tramways, hotels, 
 and the like. The contractors generally acquire the concession, order to con- 
 struct the tramway, proposed site for hotel, or other property by piu-chase, and 
 then fonu or procure the formation of the company, which at once executes 
 the contract. It may be surmised that at any rate in some cases the principal 
 reason for adojiting this plan is to avoid disclosing the respective amounts to 
 be paid for the concession, and the execution of the works. 
 
 Agkeemext/w Sale 0/ Colliery and otJwr Assets to Compaxv on Form 25. 
 Scheme o/" Arrangement under Bankruptcy Act. 
 
 AN AGREEMENT made the 13th day of Dec, IS?:., between T. Parties. 
 
 of , public accountant, trustee of tl^e estate of Messrs. F. & H., 
 
 in liquidation, of the 1st pt ; F., of the 2nd pt ; H., of , of the 
 
 3rd pt ; Pt., of the 4th pt : and the A. & P. Co, Limtd (hereinafter 
 called '*the co ") of the 5th pt. 
 
 Whereas on or about the ')i\\ day of June, 1875, the said F. & H., Recitals. 
 
 trading under the firm of as ironmasters and colliery proprietors, 
 
 presented a p3titi(>n to the TiOndon Bankruptcy Court for liquidation 
 iresohdion j/assed and jyr/lstered, and T. apjwinfcd receiver and manager, 
 and siihseqiienthj irvstee']. 
 
 And whereas the assets and lial)ilitics in the said matter include 
 joint assets and liabilities of the said delitors and separate assets and 
 liabilities of each of them. 
 
 And whereas the joint assets in the said matter include certain coal 
 and iron works, hereditaments and property sjiecified in the first and 
 second parts of the first schedule hereto, and portions of the said prd- 
 perty specified in the first part of the said schedule are (besides the 
 mortgages hereinafter mentioned) subject to [certain, annuities and 
 vendor's lien for 0,000/.]. 
 
 And wherp:as the said joint assets also include the particulars specified 
 in the second schedule hereto. 
 
 And whereas the joint liabilities in the said matter includes [^mort- 
 fjagefor 128,000?., charged on the A. irorlcs']. 
 
 And whereas the said joint liabilities also includes \_a mortgage for 
 183,000/., charged on the P. propertg'].
 
 46 AGREEMENTS. 
 
 Form 25. And whereas the property on which the said sum of 128,000?. is now 
 cliarged hy way of first mortgage (subject to the said annuities) is here- 
 inafter called " the A. property," and the property on Avhicli the said sum 
 of 183,000/. is now charged by. way of first mortgage is hereinafter called 
 " the P. property." 
 
 And whereas the remainder of the joint liabilities in the said matter 
 consist of the claims of creditors, estimated to amount together to a sum 
 of 900,000/. or thereabouts, inclusive of a claim l)y the trustees of M, for a 
 sum of ?>(),0G7/., in respect of which they have or claim to have remedies 
 as lessors of parts of the said property and certain rents, royalties, rates, 
 and taxes, salaries, and other preferential claims accrued prior to and 
 accruing since the said 5th day of June, 1870. 
 
 AxD WHEREAS it is apprehended that the jn-escnt selling value of the 
 mortgaged property is not greater than the amount of the charges 
 thereon, and that the present selling value of the pro})erty not in mort- 
 gage is not greater than 15,000/. 
 
 AxD WHEREAS it is apprehended that the proofs against the separate 
 estate of the said F. will not exceed 24,000/., and that the proofs against 
 the separate estate of the said H. will not exceed 200/. 
 
 And WHEREAS it is apprehended that the separate assets of the said 
 F. are insufficient to meet his separate lial)ilities, but that the separate 
 assets of the said H. may be more tlian sufficient to meet his separate 
 liabilities. 
 
 AxD WHEREAS the company has been formed and registered with a 
 view to the purchase of the property in the said matter (except as here- 
 inafter mentioned) on the terms that the purchase-money should to the 
 extent herein appearing be represented by the said mortgages as modified 
 in a manner mentioned in the company's articles of association, and by 
 debentures of the company issued to the said joint creditors as hereinafter 
 mentioned, and on the further terms of the scheme of settlement of the 
 affairs of the said F. & H. hereinafter expressed and the regulations of 
 the company define and descri1)e the A. debenture debt and the B. 
 debenture del)t hereinafter referred to and the rights of the holders 
 thereof, and contain jn-ovisions to the effect that the whole of the profits 
 of the company are to l)e applied in payment off of tjie said mortgages, 
 and debentures in priority to any payment of dividend to meml)ers of 
 the company, and to the effect that as and when the principal of any 
 mortgages or debentures adopted or issued as purchase money for pro- 
 perty shall be paid off" out of profits which but for the special j^rovisions 
 aforesaid would be available for dividends fully paid-up shares may be 
 issued to the members of the company to the extent of the amount so 
 ]y.\\(\ off. 
 
 And whereas the company have arranged with the said mortgagees 
 for the modification of the said mortgages necessary to admit of the issue 
 of the said debentures according to the terms aforesaid, and the said 
 . arrangements with the mortgagees are conditional on the terms herein- 
 after mentioned.
 
 FOEMS. 4^ 
 
 AxD WHEREAS the said R. lias agreed to find the sum of 30,000/. for Form 25 
 
 tlie working capital of the company and to lend the same to the company 
 
 so as to hecome the A. debenture debt of the company, but upon the 
 condition that the separate creditors of the said A. sliall take the joint 
 acceptances, drafts, or notes of the said It. & F., in full discharge of 
 their claims, and that the assets of the said F. shall be handed o^'er to 
 him as hereinafter expressed, and that the proofs against the separate 
 estate shall not exceed tlie sum of 24,000/., and that the liquidation of 
 the said separate estate be closed on or before 10 Jan. ISH). 
 
 Axj) WHEREAS it is also a condition of the arrangements hereinafter 
 expressed that the proof against the separate estate of the said H. shall 
 not exceed 200/., and that the li(]nidation of the said separate estate be 
 closed on or before 10 Jan. 187(!. 
 
 And whereas the said F., H., & 11., have suliscribed or caused to be 
 subscribed the memorandum and articles of association of the company, 
 to the intent and on the terms that under the powers in the said articles 
 of the comjtany should issue fully jjaid-up shares to represent moneys 
 paid in respect of the principal of mortgages and del)entures, and Avhich 
 would otherwise have been available for dividends, and should execute the 
 agreement hereinafter expressed in that l)ehalf. 
 
 And whereas the said scheme t)f settlement, the terms whereof are 
 herein expressed, has been sanctioned by special resolutions of the 
 creditors in the said matter of the snid liquidation, and has been duly 
 ajjproved by the court in pursuance of the twenty-eighth section of the 
 Bankruptcy Act, 1809. 
 
 Now IT IS hereby agreed as follows : — 
 
 1. The said T., as such trustee as aforesaid, shall make over and assure Sale of land, 
 to the company all the freehold aud leasehold hereditaments in mort- 
 gage as aforesaid, and forming joint assets in the said matter in con- 
 sideration of the obligation of the company to jyay off the said mortgages 
 
 and shall make over and assure to the company all the freehold and 
 leasehold hereditaments not in mortgage as aforesaid, forming such joint 
 assets in consideration of the obligation of the company to pay off the 
 said lien for unpaid purchase-money, and of l),000/. to be covered and 
 represented by B. debentures of the company to be issued as herein- 
 after mentioned, subject, as to the premises affected thereby, to the 
 annuities, mortgages, and lien hereinbefore mentioned, and on the terms 
 hereinafter expressed. 
 
 2. The said T., as such trustee as aforesaid, shall make over, transfer, Fale of otlier 
 and assure to the company all other the assets as existing at the date ^^*^"^**^- 
 hereof iu the matter of the said licjuidation (other than the sej)arate 
 
 assets of the said F., and such separate assets of the said H. as may be 
 required for the payment of his separate creditors, and the assets speciiied 
 in the second schedule hereunder written), in consideration of the 
 remainder of the B. debentures to be issued as hereinafter mentioned 
 and on the terms hereinafter exjiressed. 
 
 3. The company shall enforce and effectuate the said arrangements Company to
 
 48 
 
 AGrtEEMENTS. 
 
 Form 25. for modifying and altering the said mortgagees' interest, so as tocoufonn 
 
 ~ with the terms of the articles of association with resjiect to the A. first 
 
 mortgagees. mortgage deht, and the I\ first mortgage debt as therein defined 
 
 respectively. 
 
 Loan by R. i. The said 11. shall lend, and the company shall borrow the said snm 
 
 of o(»,0()0/., so as to form the A. debenture debt of the company. 
 
 Joint creditors (i. The company shall issue to each of the joint creditors in the said 
 
 to have 15. matter (other than the said mortgagees, but including the trustees of M. 
 debentures. ^ , i • i • n tT i i 
 
 as creditors for 10,nC7Z. part only of then- clanu), B. debentures of the 
 
 company representing the I>. debenture del)t, according to the terms of 
 
 the articles of association and the schedule thereto, for the amount for 
 
 which each creditor has jtroved or shall prove in the matter of the said 
 
 liquidation, l)ut not including any interest after 5 June, 1875. 
 
 Issue of paid- G. As and when the company shall pay off any part t>f the principal of 
 
 Tip shares as i-j^Q A. first mortgage debt, the P. first mortgage debt, and the B. 
 
 mortgages i)aul .■^ o :> . o i 
 
 off. debenture debt (representing together the j)urchase-money for the said 
 
 property) out of ])rofits which, but for the special stipulations for the 
 application of sucli profits to the payments aforesaid would have been 
 available for dividends, the company shall (subject to the provisions of 
 the articles) issue to the members of the company, in proportion to their 
 shares, fully paid-up shares of the company to the extent of tlie amount 
 so paid off. 
 As to separate 7. The Said T., as such trustee as aforesaid, shall hand o^■er the 
 estate of A. separate estate of the said F. to him in exchange for the joint accept- 
 ances, drafts, or notes of the said R. and F. for the amount of the proofs 
 <;)f the creditors respectively against such separate estate, payable not 
 later than the 1st IMar. 187(5 ; and the said E,. and F., at their own 
 expense, shall give such acceptances, drafts, or notes accordingly, and 
 the separate creditors shall accept the same in full discharge of their 
 claims. 
 As to separate 8. The said T., as such trustee as aforesaid, shall hand OA'cr the 
 estate of B. surplus (if any) of the separate assets of the said H., after })aymeut of 
 the separate creditors of the said H. to the company, to be paid hj them 
 to the holders of the P. first mortgage deht, as part of the first instal- 
 ment of 12,750?. mentioned in the schedules to the said Articles as 
 payable in respect thereof, and the said surplus (if any) shall be deemed 
 for that pur])ose to be jn-ofits of the company. 
 Application of !). The said T., as such trustee as aforesaid, shall stand possessed of 
 
 excepted j-j^^ property s])ecified in the second schedule hereunder written, in 
 
 property. i i j i 
 
 trust in the first place to pay to the trustees of M. the sum of 20,0001., 
 
 the balance of their said claim on or before ;U Dec. 1875 ; and in the 
 
 next place, to pay all the exi)enses of the proceedings in the said li(juida- 
 
 tion, and all expenses of carrying into effect the scheme of settlement 
 
 hereby agreed on, including the costs incurred since 27 May, ] 875, by 
 
 the mortgagees under the first mortgage of the A. AVorks, and by 
 
 and , the mortgagees under the first mortgage of tlie P. Works, and 
 
 to be incurred by them in carrying into effect the present arrangements.
 
 FOEMS. 49 
 
 except as lieroinafter meutd ; unci iu the next place, in paymt of the Form 25. 
 rents, royalties, rates and taxes, salaries and other preferential claims 
 hinl)efore parly mentd or referred to, and after the several paymts 
 afsd, to apply the balance in paymts of dividends to creditors, to be 
 taken on account of the B. del)entures, as referred to in the articles of 
 association, and to be deemed to be paymts out of profits of the co for 
 the ppses of clause G of this aoreemt. 
 
 lU. For realisincr that part of the pi)ty comimsed iu the sd second Company to 
 schedule, which consists of coals, pitwood, oil, horse-food, and other excepted 
 material supplied for the ppse of carrying on the ])usiness, the sd T. shall property, 
 sell, and the co shall pchase the same at a price admitted or (in case of 
 dispute) determined by arbitration to be the value thereof. 
 
 11. The co shall accept such title as the sd T. has to the ppty hby Title accepted. 
 agreed to be made over, transfen-ed, and assured, and shall pay all the 
 expen.ses of preparing- and executing the deeds for efiectuating that 
 
 object. The assurances shall l)e completed as soon as can be arranged. 
 
 12. If the liquidon of the separate estate of the sd A. be not closed 
 on or before 10 Jan. 187C, or if the proofs against the sd separate 
 estate shall exceed the sum of 24,0o0/. \ji(jiecineni to he void, and liqui- 
 dation to proceed']. 
 
 13. [iSimitar prorision as to B.'s separate estate.] 
 
 14. If any dispute shall arise as to the fi-ame of any deed required for Arbitration, 
 effectuating this agreemt, or as to any other matter under these 
 ])reseuts (whether hiubefore specifically referred to arbitration or not) 
 
 the same shall be referred to any counsel or other person named by the 
 judge or any registrar of the Loudon Bankruptcy Ct, at the instance 
 of any party to the dispute, and [^stihmissioii may lie nuule order of 
 court, i.yc.'\. 
 
 Ix AVITXESS, &e. 
 
 The Scheditles above refekred to. 
 
 First schedule [FarticaJars of »i07i/ja[/ed properties]. 
 
 Second schedule : Sums of money now in the hands of the sd 1\: bills 
 of exchange and promissory notes now held by the sd T. ; book debts 
 due to the sd estate in respect of the sd business ; securities for money 
 due to the sd estate ; stock and shares in public cos ; scrap iron and old 
 castings and certain other assets ; all moneys due and owing to the said 
 T. as such trustee in respect of the sales made of coals, iron, and other 
 materials in carrying on the business of the co as aforesaid ; the stock 
 of stores remaining on hand, of coals, pitwood, oil, horse-food, and other 
 materials supplied to the sd T. as such trustee in cariying on the sd 
 business ; surplus locomotive and other engines, and any other assets 
 Avhich shall be determined by the trustee not to be properly taken into 
 account for the purpose of the sale of tlie works as a going concern. 
 
 [Other Schedules.]
 
 50 
 
 AGREEMENTS. 
 
 Form 25. Under s. 28 of the Bankruptcy Act, 1869, the Court in several cases sanctioned 
 a scheme whereby the assets were made over to a company in consideration, 
 of shares or debentures for the unsecured creditors. The above Form is taken 
 from an agreement consequent on a scheme which was so sanctioned. See Ex 
 parte Turquand, .3 C. D. 445. The articles of association provided for the issue 
 of debentures in place of the mortgages on the A. and P. properties, and for 
 the issue of the B. debentures to the unsecured creditors, and of A. debentures 
 to R. The profits were to be applied in payment of (1), the annuities; (2), 
 10,000? . per annum towards payment of principal and interest on the 128,000L 
 debentures, and 12,750?. per anniuu on the 183,000L debentures; (.3), the interest 
 on the A. debentures to be issvied to E. ; (4), the payment of the B. debentures. 
 The articles provided for meetings of the different classes of debenture holders, 
 and the business was to be managed by a committee of control until the B. 
 debentures were all paid off. 
 
 The following are a few of the cases on s. 28 of the Bankruptcy Act, 1869 : — 
 Merchant Banking Co., 16 C. Div. : the Court is bound to consider the objec- 
 tions of dissentients: and all the circumstances: In re Hickman, 32 W. K. 173. 
 Ex parte Bacon, 17 C. Div. 447 : after scheme accepted bankrupt, though 
 undischarged, can apply to reduce proof. In re Chidley, 1 C. D. 177 ; Crew v. 
 Terry, 2 C. P. D. 403, rights of execution creditors after scheme. Ex parte 
 Turqxiand, 3 C. D. 445, issue of debentures, sureties : Ex parte Ranby, 14 C. D. 
 467, taxation of trustees' costs after scheme : West v. Baker, 1 Ex. D. 44, set- 
 off, whether effected Vjy scheme. 
 
 Under s. 18 of the Bankruptcy Act, 1883, the Court is given full discretion as 
 to approval of scheme, and to enforce or annul it. The scheme is to bind all the 
 creditors except (s. 19) as regards debts and liabilities not aifected by an order 
 of discharge unless the creditor assents to the scheme. As to the excepted debts 
 and liabilities, see s. 30, which includes, inter alia, any debt or liability incurred 
 by means of any fraud or fraudulent breach of trust. 
 
 For schemes under the Joint Stock Companies Arrangement Act, 1870, see 
 infra, Form 728 et seq. 
 
 Form 26. Agreement for sale of Hotel and other assets on a scheme of 
 ARRAxr; E:\rEXT under the Bankruptcy Act. 
 
 Parties. 
 
 Hccitals. 
 
 AN AGREEMT made the 
 
 day of , lietween J., of, &c., 
 
 (hereinafter called the trustee), of the first pt, N., of, &c. (hereinafter 
 called the debtor), of the 2nd pt ; D., of, (fee, (hereinafter called the 
 nitgee) of the 3rd pt ; B. and C, of, &c. (hereinafter called the 
 claimants), of the 4th pt : the creditors of the debtor (including- 
 the mtgee for the sum of 2,082/. only, and including the grantee 
 of the bill of sale hereinafter mentd), such creditors (who are herein- 
 after referred to as the creditors) binding themselves by special 
 
 I'esolutions as hereinafter mentd of the 5th pt ; and the P 
 
 Hotel Co, Limtd. (hereinafter called the co), of the Cth pt. Whas 
 on, and for some time prior to the 20th January, 1877, the debtor 
 
 carried on the business of an hotel keeper at the P Hotel, 19, 21, 
 
 and 22, X. Place, 8outh Kensington. And whas on the sd 2Gth 
 of January, 1877, the debtor presented his pcton to the London 
 Bankruptcy Ct for the liquidon of his affairs by arrangemt or composi- 
 tion with his creditors, under which the sd J. was, on 26th January, 
 1877, a])poiuted recei\er of the ppty and manager of the business of 
 
 I
 
 FORMS. 51 
 
 the ilebtor ; utkI subsequently resolutions for liquidoii by arranu'emt of 
 his sd affairs were duly i)assed and registered, and on Oth March, 
 1877, the sd J. was duly appointed trustee of the ppty of the debtor : 
 And whas on ITtli January, 1877, the debtor executed a bill of 
 s;ile whereby he granted and assigned to ^I. (therein mentd) absolutely 
 all the chattels then being or which should thereafter be in or about 
 19, X. Place, afsd, subject to a proviso for redemption on paymt to the 
 sd !M. of the sums in the sd bill of sale mentd ; l)ut it is considered that 
 the chattels comprised in the sd Ijill of sale have become and are vested in 
 the trustee, and divisible amongst the creditors, as being in the possession, 
 «rder, or disposition of the debtor, l)eing a trader, by the consent and 
 permission of the sd j\L at the time of the filing of the sd ]K'ton : Anj) 
 WHAS at, the time of the filing of the sd peton the debtor was indebted to 
 tlic creditors in various sums of money, and the mtgee was a creditor of 
 the debtor of 4,082/., holding as security part of the debtor's estate — 
 namely, the leases of Xos. 1'.), 21, and 22, X. Place afsd : Axi) whas 
 at the time of the filing of the sd peton the debtor was bound ])y 
 certain contracts entered into between the claimants and himself, 
 relating to the letting l)y them and hiring by him of certain house- 
 hold furniture and effects, under a system commonly called the three 
 years' hire system, and which sd household furniture and effects 
 the claimants respectively claim as their own ppty : And whas the 
 mtgee has valued his sd security at the sum of 2,000/., and has pro\'ed in 
 the sd liquidon for the balance of his claim and interest, amounting to 
 the sum of 2,082/. : AxD whas the co has been formed and registered 
 with a view to the pchase from the trustee by the co of the business 
 
 of the P Hotel, with the fixtures and effects therein, the ppty of 
 
 the debtor in the sd liquidon, other than and except the sd household 
 furniture and effects claimed by the claimants ; and with a view to the 
 adoption by the co of the sd contracts for letting and hiring the sd 
 household fm-iiiture and effects claimed by the claimants, or some modi- 
 fications thereof upon certain terms and conditions : And whas it has 
 been proposed as one of the terms of the sd purchase that the debtor shall 
 enter into the engagemt hereinafter contd, which he has agreed to 
 do provided he obtain his discharge under the sd liquidiui : A\]> 
 WHAS the mtgee has agreed with the co to take debentures of 
 the CO secured as a first charge upon the co's undertaking in respect 
 of the sd sum of 2,000/., reserving his right to vank pari jjas.su with the 
 creditors in respect of the balance of his claim so proved l)y him as afsd: 
 AxD WHAS it is desirable that the liquidon of the estate of the 
 debtor shall be closed : And a\'HAs having regard to the statemt 
 of his affairs submitted by the debtor to the statutory meeting of his 
 creditors on the 21st day of February, 1877, and also to the delay, 
 expense, and loss likely to accrue from the winding-up of the business 
 of the sd hotel, and in disputing the several claims of the claimants and of 
 the sd M., it is deemed for the benefit of the creditors that a scheme 
 should be adopted for transfciTing to a co the business of the sd 
 
 Form 26.
 
 AGREEMENTS. 
 
 Form 26. 
 
 ^.ssets to lie 
 transferred. 
 
 Coiupaiij- to 
 pay certain 
 expenses, &c. 
 
 Company to 
 issue certain 
 paid-up 
 shai'es. 
 
 As to -wislics 
 of creditors. 
 
 As to claims 
 by holder of 
 bill of sale. 
 
 Eclease l»y 
 claiitiants. 
 
 Comjiany to 
 adopt certain 
 liabilities. 
 
 hotel as a going concern, and accordingly this agreenit as a scheme of 
 ' scttlemt has Ijeen sanctioned by special resolntions of the creditors 
 assembled at a meeting duly convened for the ppose in the matter of 
 the sd liquidon, subject to the approval of the Ct, pursuant to the 28th 
 section of the Bankruptcy Act, 18(5i). 
 
 Now IT IS HBY AGREED aS folloWS : 
 
 1. The trustee shall assign, transfer, and deliver to the co all 
 the estate and interest vested in him in the sd leases of Nos. 10, 21, and 
 22, X. Place afsd, and in the goodwill and business of the sd P— — 
 Hotel, and the fixtures, furniture, and efiects, the ppty of the debtor, 
 therein, other than and except the household furniture and effects claimed 
 by the claimants, and his title to assign, transfer, and deliver as afsd 
 shall be accepted l)y the co without question. 
 
 2. The CO will, to the extent to which the balance in the hands 
 of the trustee may be insufficient for those pposes, pay all tlie expenses, 
 including rents, rates, taxes, and other outgoings and disl)ursemts in- 
 curred by the receiver and manager and trustee since the filing of the 
 sd peton, and all other the expenses of and incidental to the sd 
 peton and the sd liquidon, and the carrying on of the business of 
 the sd hotel by such receiver and manager and trustee, and of and inci- 
 dental to the scheme, and the assignmt, transfer, and delivery before 
 mentioned ; and will deliver to the mtgee debentures of the co for the sd 
 sum of 2,0007., secured as a first charge upon the undertaking of the co. 
 
 ?). The CO will pay to the trustee in cash the sum of 1,835/. 2s. Gd. 
 and will issue and deliver to the trustee, or his nominees the creditors 
 as he may direct fully pd-up ordinary 17. shares of the co for 
 0,5007., or on the request and at the option of the trustee will, in lieu of 
 such shares, pay in cash to the trustee one-fifth of their nominal value, 
 or of so many of them as the trustee shall require. 
 
 4. The trustee will follow, as nearly as circes will ]iermit, the 
 Avishes of the creditors respectively in claiming shares or cash pursuant 
 to the preceding clause, ]irovided such wishes are expressed to him in 
 writing within one month after the appro\"al l)y the Ct of the sd 
 scheme. In default of any such expression of wish by any of the credi- 
 tors, the trustee Avill act as if such defaulting creditors had resjtectively 
 expressed a wish for cash. 
 
 5. The CO will take all risk if any incident to the claim of the 
 sd M. to the ppty in aiul possession of the chattels comprised in the 
 sdbill of sale, and will indenniify the trustee from all claims, demands, 
 and expenses in respect thereof. 
 
 (). The claimants will release the estate of the debtor from all claims 
 and demands if any in respect of their sd several contracts, and the 
 trustee will release his claim in respect of the sd household furniture and 
 eflFects claimed under their sd several contracts. 
 
 7. The co agrees with the claimants to adopt upon modified terms 
 and conditions, which have been arranged, the liabilities of the delator 
 under the sd seA'eral contracts.
 
 FORMS. 5 J 
 
 fi. Tlie dcl)t(>r agrees tluit he -will (if he obtain his discharge under JForm 26^ 
 
 tlie said liquidon, and inuuediately thereupon) enter into a covenant Debtor not to 
 
 with the CO [not fo cam/ on or he interested in Lusiness of hotel l^^'7 °^^ 
 '- "^ . business. 
 
 Jcee^ier, ij-c, for five years, in thin three miles j. 
 
 9. If any dispute sliall arise as to the mode of the carrying out this Arbitration, 
 scheme of settlemt or otherwise in relation to the sd scheme of settle- 
 mt the same shall be referred to such counsel or otlier person as may 
 be named by the judge or by any registrar of the London Bankruptcy 
 Ct, at the instance of any party to the dispute. 
 
 In witness, &c. 
 
 The above form is taken from an agreement sanctioned by the London Bank- 
 ruptcy Court a few years since. See note at foot of Form 25. It is not usual 
 to make the creditors as above parties to the agreement. See fiirther, 
 " Arrangements," infra. 
 
 Ageeement to sell Assurance Business. Form 27. 
 
 AN ACJREEMT, itc, the corjioration ], the co 2, where])y, 
 subject to such approval and confirmation as hereiuafter mentd, it is 
 agreed as follows :■ — 
 
 1. Tlie corporation will sell and transfer, and the co will pchase Sale. 
 and take o\er as from twelve o'clock at midnight on the thirtieth 
 day of .June, One thousand eight hundred and eighty-one, all tlie cor- 
 poration's assurance business, in W'hich term are included all the life 
 policies, hfe policies Avith accidental injury benefits combined, and 
 annuities and health insurances mentd in the schedule hto (but no 
 others), and the goodwill, agencies, and connections pertaining thereto. 
 
 2. A valuation shall be made of the liability in respect of the several Vahiation. 
 contracts specified in the schedule hto by A. of , actuary, ujion 
 
 the following bases : — 
 
 (a) The valuation shall he made as on the day of . 
 
 {b) The mortality tables to be employed shall be the institute of 
 actuaries' Hni. table of mortality for policies on which less than five 
 years' premiums have been paid, and the institute of actuaries' Hm. (')) 
 table of mortality for ])olicies of five years' standing and upwards, and 
 Mr. Alexander Glen Finlaison's governmt life annuitants experience 
 tables ibr annuities. Interest shall be calculated at four ]). c. }i. a. I'lie 
 premiums to be valued shall be the net premiums only. 
 
 {(•) The corporation shall furnish to tlie sd A. all necessary par- 
 lars of the contracts specified in the schedule hto, and shall, if re- 
 quired l)y him, permit him to examine and inspect the policy registers 
 and all the original documts relating thereto. 
 
 i). The corporation will, within fourteen days after this agreemt Delivery oE 
 shall have been appro\-ed by the shareholders of the corporation by ^®^"^'^*'^- 
 special resolution and sanctioned and confirmed by the High Court
 
 54 
 
 AGEEEMENTS. 
 
 Form 27. 
 
 Interest. 
 
 Allotr^ent of 
 paid-up f^hares. 
 
 Re-iBsuranee. 
 
 Death befoie 
 completion. 
 
 As to lialjili- 
 ties. 
 
 Delivery of 
 jolicies. 
 
 of Jusbico, (liaiK'CTV Division, hand over in cash, approved securities, or 
 otlier assets to l>e approved by the co, such a sum as, on the basis 
 of the sd ^•ah^ation, shall appear to be, {a), a sufficient reser\e fund for 
 the life, accident and annuity, and health policies so to be transferred as 
 afsd : {h), a sufficient sum to jirovide a re^■ersionary bonus of one jiound 
 ten shillings p. c. to all participating i)olicy-holders whose policies are sa 
 transferred, the ainount thereof to be certified l»y the sd A. 
 
 4. The corporation shall pay to the co interest at 4 p. c. p. a. on the 
 
 sum so ascertained as afsd from the sd day of to the date] of 
 
 paymt, and all premiums becoming due after the sd day of ■ 
 
 shall belong to the co, less commission allowed thereout to agents. 
 
 f). The CO shall allot to the corporation or its nominees fully pd-up 
 shares in the co to the amount of one year's premium income on the 
 poKcies specified in the schedule hto by way of pchase-mouey for ' 
 goodAvill, and will execute any supplemental agreemt relating thereto 
 to meet the re(|uiremts of the Companies Act, 18G7. Until such 
 confirmation ami sanction as afsd the co shall act as the agents of 
 the corporation in their sd business. 
 
 G. The corporation will also, on such confirmation as afsd, transfer to 
 the CO the benelit of all re-insurances which shall have been effected by 
 them, or any other insurances having any connection with the l)usines8 
 so to be transferred as afsd, and the co shall be at liberty to use the 
 name of the corporation upon indemnifying them from any loss to be 
 incurred thereby in any proceedings which may be necessary for the 
 ppose of enforcing the benefit of such re-insurances. 
 
 7. If any of the persons whose lives are so re-insured shall die before 
 such confirmation as afsd the corporation will gi^e the co the benefit of 
 such re-insurances in discharge or part discharge of the liability in 
 respect of the insurances effected by the jx-rson so dying, and will take 
 or permit the corporation to take, npon giving such indemnity as 
 afsd, all proceedings necessary to enforce the re-insurances. 
 
 8. The CO shall, as such agents of the corporation, until such con- 
 firmation as afsd, and afterwards on their own account as from the sd 
 
 day of , undertake and assume all the liabilities and risks of 
 
 the corporation under their life assurance and other policies and annui- 
 ties specified in the schedule hto, and shall indemnify the corporation 
 against all claims and demands in respect of such risks and liabilities. 
 But the corporation shall pay and discharge all liabilities under any of 
 the sd policies specified in the sd schedule which may have become 
 claims on or before the sd day of . 
 
 I). The corporation will deli^■er over to the co all the policy registers 
 I'cnewal registers, indexes, and other books of the corporation, not being 
 mere books of account, together with all documts upon which the 
 policies Averc issued, or relating thereto, and which, after such confirmation 
 as afsd, shall become the ppty of the co, but with the right of access 
 thereto on thepart of the coi"i)Oration, and will do all other acts necessary 
 and proper to carry out the sd transfer, and will in all other respects use
 
 FORMS. 55 
 
 their best endeavours to promote the scl life assurance aud annuity Form 27. 
 
 business, and shall, as from the sd day of , cease to carry on " 
 
 and will nut resume life assurance, accident, aud annuity business except 
 through the agency and for the benefit of the co, but this shall not 
 apply to any existing policy or contract of the corporation not specified 
 in the schedule hto. 
 
 10. Each policy-holder in the corporation cntled to iiarticiiiate in Provisions 
 
 , „ T , T • ^ , n ■ , for benefit of 
 
 lu'onts shall be entled to receive irom the co such reversionary ijonus as policy holders. 
 
 is mentd in clause 3, and shall at the actuarial investigation of the co, to 
 
 l)e held as in the year one thousand eight hundred and eighty-five, 
 
 and in all other declons of bonus rank j)ari jiassi/ for Ijouus in the co, 
 
 on the same terms and on the same footing so far as he legally can as 
 
 the j)ol icy -holders of the co. 
 
 11. All existing agents of the corporation, in connection with the Agents. 
 business to be transferred as afsd, shall if such agents shall consent and 
 
 the CO be willing, become as from the day of • , the agents of the 
 
 CO, but for the ppose only of transacting and promoting the sd life 
 assurance and annuity business. 
 
 12. The corpoi-ation shall do all acts and things that may be in their Agencies. 
 power for transferring such agencies so far as the co shall require such 
 transfer. 
 
 l;!. The costs of and incident to this agroemt, and the carrying out Costs. 
 thereof when confirmed, and of all deeds required for that impose, shall 
 be borne by the parties incurring the same. 
 
 14. Any dispute [jrfcrencp to arhitration of A.']. Arhitration. 
 
 IT). This agreemt on the part of the corporation is subject to Approval of 
 approval l)y the shareholders by special resolution, and to the sanction ""^ ' 
 and confirmation of the High Ct of Justice, Chancery Division, and 
 the costs of all parties of and incident to obtaining such sanction and 
 confirmation (except the costs of any appearance liy the co) shall ])e 
 paid by the corporation, and if such approval, confirmation, and 
 sanction respectively be not given and obtained within six mouths from 
 the date of these jwesents, or such extended time as the corporation and 
 CO respectively may agree upon, the parties hto are to be placed in their 
 original position, or as near thereto as may be possible, as if this 
 agreemt had never been entered into, and as if nothing had been doue 
 towards carrying it into effect, and without any right to compensation on 
 either side for loss or expenses incurred in connection with the proposed 
 transfer, but so that the co shall be fully indemnified against all lia- 
 bilities properly incurred by them in respect of the obligations hby im- 
 posed on them previously to such coufirmation, and this agreemt 
 shall cease to be binding except for the pposes of such restitution and 
 indemnity. 
 
 IX WITXESS, &c. 
 
 This is taken from a form recently sanctioned by the Court. As to the 
 transfer of the business of a life assurance company, see infra. Form 288, and 
 Buckley, ool.
 
 56 
 
 AGEEEMENTS. 
 
 Form 28, Syndicate Agree.^iext fur turchase and re-sale of Mines. 
 
 Syndicate 
 established. 
 
 Members. 
 
 Capital. 
 
 Preliminary 
 contract. 
 
 Managers. 
 Calls. 
 
 Application of 
 funds. 
 
 Conduct of 
 business. 
 
 ]';xpress powers 
 of managers. 
 
 ]\lcetinc'.s. 
 
 Division of 
 
 proceeds. 
 
 Notices. 
 
 Heads of Agreemt. 
 
 1. A syndicate is hby established for the ppose of acquiring the 
 
 mines situate at , and known as the mines, and of disposing 
 
 of the same at a profit. The capital of the syndicate shall Ije /., 
 
 and shall be considered to be divided into - — — shares of /. each. 
 
 The holders for the time being of the shares shall be members of the 
 syndicate. Each of the subscriljers is to be entled to the number of 
 shares set opposite his signature. The shares are to be transferable, but 
 not divisible. A transfer must be registered. 
 
 2. In entering into the contract dated for the acquisition of the 
 
 sd mines, A., one of the subscribers hto, shall be deemed to have 
 been acting on behalf of the syndicate, and the syndicate shall forthwith 
 repay him the deposit, and shall indemnify him against his liabilities 
 under the contract. 
 
 3. A. and B. shall be managers of tlie syndicate. 
 
 •4. 1. per share shall be pd to the managers forthwith, and they 
 
 may from time to time make calls on the.meml:iers in proportion to their 
 shares, but no memljer is to be liable to pay more than the amount of 
 liis shares. 
 
 5. All moneys pd to the managers in respect of calls or otherwise 
 shall be applied for the pposes of the syndicate. 
 
 G. Tlie managers shall have the entire control of the affairs of the 
 syndicate, and may conduct the same in such manner as they think 
 best. 
 
 7. It is expressly declared that the managers, if they think fit, {a) may 
 sell the mines to a persoii, or firm, or co ; {h) may form and float, or pro- 
 cure the formation and floating of a co to pchase the mines ; (r) may 
 fix the price and agree to accept any pt of it in fully pd up shares, 
 debentures, or otherwise ; {d) may keep the mines going until dis- 
 posed of. 
 
 8. The managers may convene meetings of the syndicate to 
 deliberate and decide on any of the atfairs of the syndicate : every share 
 to confer one vote : majority to decide : votes may be given in person 
 or by proxy. Three days' notice of each meeting to be given. 
 
 !). Tlie conson for sale or disposition of the mines shall be ap- 
 plied, first, in paying all debts and liabilities of the syndicate; secondly, 
 in repaying any capital contributed by the members in respect of their 
 shares ; thirdly, the surplus shall be divided amongst the members in 
 pi'oportion to their shares. And for the pposes of this clause the 
 managers may convert into money any shares, debentures, or other 
 specific assets, and may divide any such assets in specie, and make such 
 other arrangemts for adjusting the rights of the memljers as they 
 think fit. 
 
 1(1. Notices to each subscriber may be given by post, addressed to
 
 FOEMS. 
 
 him at his address below luentd. 
 served tAvelve hours after posting. 
 Dated the day of . 
 
 Notice so ffiveii to be deemed Form 28. 
 
 Signatures and addresses of subscribers. 
 
 Number of s&ares subscribed for 
 
 ■ 
 
 
 A syndicate is a partnership or company. A great many syndicates are from 
 time to time formed, but, as regards the promotion of public companies, see 
 infra, note to Form 75, a syndicate consisting of more than 20 members is 
 illegal : s. i of the Act of 18G2. Of course if a syndicate promotes and sells to 
 a company, it must make due disclosure, and the members Avill all be respon- 
 sible for the fraud of the manager. Erlanger v. New Sombrero Co.,o C. Div. 75. 
 See also Ross v. Estates Invest. Co., 3 Eq. 134 ; 3 Ch. 681. 
 
 A(;REEiiENT for the Avpoixtmext of a Maxager lij a Co3II'axy. Ih- Form 29. 
 muneration, Salary, and Share of Profits. Comimisation in case of 
 Dismissal. 
 
 AX AGREEMT, &v. Parties, (1) the co, (2) B. 
 Whereby it is agreed as follows : 
 
 Parties. 
 
 1. The sd A. shall lie the first general manager of the co, and as such Appointment 
 general manager shall perform the duties and exercise the powers which ^ " ^^* 
 from time to time may l)e assigned to or vested in him by the directors 
 
 of the CO. 
 
 2. The sd A. shall hold the sd office, subject as hereinafter \n-o- Term. 
 vided, for the term of years fi-om the date hereof. 
 
 o. The sd A., unless prevented l)y ill-health, shall, during the sd A. to per- 
 term, devote the whole of his time, attention, and abilities to the busi- ^°"" duties, 
 ness of the co, and shall obey the orders from time to time of the 
 Ijoard of directors of the co, and in all respects conform to and 
 comply with the directions and regulations given and made by them, 
 and shall well and faithfully serve the co and use his utmost endea- 
 vours to promdtc the interests thereof. 
 
 4. There shall Ix' ]xl to the sd A., as such general manager, a salary Salary, 
 which shall be as follows, namely : The sum of 300/. for the first year,
 
 58 
 Form 29. 
 
 When to be 
 paid. 
 
 Besides share 
 of profits as 
 per article;;. 
 
 AGREEMENTS. 
 
 the sum of 4( »(»/'. for the second year, and the sum of oOo/. for each sne- 
 ceeding year. 
 
 r>. The sd salary shall commence from the date hereof, and shall be 
 
 pd quarterly on the day of , &c., the first quarterly })aymt 
 
 to he made on the day of next. 
 
 C>. In addition to his afsd salary, the sd A. shall, during liis tenure 
 
 of otiice afsd, be entled to the share in the profits of the co which, 
 under the sd articles of association thereof, is payable to the general 
 manager of the time being of the co. 
 A. may resign. 7. The sd A. shall be at libty to resign the sd office at any time 
 upon giving to the co three calendar months' notice of his desire so 
 to do. 
 
 8. [If, before the expiration of years from the date hereof, the 
 
 CO is wound up, or by any other means, except the death or resigiuition 
 of the sd A., his tenure of the sd office shall l)e determined, the co 
 shall pay to the sd A. the sum of 2.000/. as liquidated damages for his 
 loss of office.] 
 
 IX WITNESS, &c. {a). 
 
 Compensation 
 to A. in case 
 of winding- 
 up, &c. 
 
 Form 30. 
 
 Parties. 
 Recitals. 
 
 Appointment. 
 Salary. 
 
 B. entitled to 
 leave of 
 absence. 
 
 Agreemrxt for the Appoixtmext of a Secretary lij a Co^irAXY. 
 Leave of Absence. Power to Rescind. 
 
 THIS AGREEMT, parties (1), the co 
 the capital of the co is 1., divided into — 
 
 and (2), B. Whas 
 
 - shares of ■ /. each : 
 
 Axi) WHAS the directors of the co are, by the articles of association 
 thereof, empowered to appoint a secretary of the co, cither for a fixed 
 term or fttherwise as therein mentd, and to fix and determine his remu- 
 neration, which may l)e by way of salary or otherwise, as in the sd 
 articles mentd : 
 
 XOW IT IS HIJY AfiREED aS followS : — ■ 
 
 1. The sd B. shall be secretary of the co for a term of years, 
 
 to l)e computed from the date hereof. 
 
 2. There shall be pd by the co to the sd B., as such secretary as afsd, 
 
 a salary at the rate of /, per annum. Such salary shall commence 
 
 from the date hereof, and shall be payal)le (piarterly on every day 
 
 of ■, day of , day of , and day of ; 
 
 the first of such quarterly i)aymts to Ije made on the day of 
 
 next. 
 
 ^. The sd B. shall, unless prevented [^siipra, \). oT]. 
 
 4. The sd B. shall, during his tenure of the sd office, be entled to leave 
 
 of absence for a period in each year not exceeding weeks, and, 
 
 iiidess otherwise arranged between the board of directors of the co and 
 the sd ]>., such leave of absence shall be granted in each year as follows, 
 namely, from the day of to the day of , &c., &c. 
 
 (a) See infra, p. GO, as to appointment of officers.
 
 FORMS. ■ 50 
 
 The afsd salary of the sd I>. sliuU continue uotwillistandino- such lea\ e Form 30, 
 of absence. 
 
 ;"). lu conson of the premes, tlie co shall forthwith allot and issue to Shares to he 
 the sd B. ten of its shares, which shall l.)e numbered in the books of the a-"otte.l to i;. 
 
 CO to both inclusive, and shall be deemed for all pposes fidly 
 
 ])d up. 
 
 0. Either of the parties hto may determine the agreemt by giving- to Power to 
 
 the other not less than calendar months' notice in writing, and '"esf""' • 
 
 upon the expiration of the period specified in such notice the sd B. shall 
 cease to be secretary of the co. 
 
 Ix WITNESS, &c. 
 
 Agreement ((jiiwini'mg ELECTKiCAii Entjixeer. Form. 31. 
 
 AX AGREE:MT, etc. Parties (I), the co ; (2), A. Parties. 
 
 Whereby it is agreed as follows: — 
 
 1. The co shall employ the sd A. as electrician and electric engineer A. to be 
 or adviser, and the sd A. shall serve the co in that capacity upon *^ ^ctnciau. 
 the terms and subject to the stipulations hereinafter expressed and contd, 
 
 from the day of until this agreemt shall have been deter- 
 mined in manner hereinafter provided. 
 
 2. The duties to be performed by the sd A. shall be the advising to Duties, 
 the best of his ability the co and the directors of the co in all matters 
 relating to electricity and electric light and power, and the production 
 
 and the use of electricity, and the works, machinery, apparatus and 
 appliances requisite for the same, and also the superintendence of the 
 works of the co, and of the construction, manufacture, or execution of 
 any works, machinery, or apparatus which may be constructed, manu- 
 factured, or executed by or for the co, and also such other duties as 
 are usually discharged by persons filling similar positions, or may reason- 
 ably be assigned by the co to him. 
 
 d. The sd A. shall in the discharge of his duties have regard to and A. to observe 
 observe and comply with all the reasonable regulations and directions "'^'^ ^°"^' 
 which may from time to time be made or given by the co, either gene- 
 rally in relation to the lousiness and managemt of the affairs of the 
 CO, or specially in relation to the duties of the sd A., and he shall also 
 in all respects endeavour to promote the success of the co's business, 
 
 4. The sd A. (except when prevented by illness) shall for the pposes Business lioms, 
 of the discharge of his duties under this agreemt, and so far as a due 
 regard to his health and strength will permit, attend at such offices, 
 works, or establishmts of the co, or at such other places and at such 
 times as the co may from time to time reasonably direct, and in 
 addition to the usual hours of attendance at such other times in the day 
 or night as the exigencies of the businesses or works of the co require 
 his attendance ; but nevertheless the sd A. shall be entled to holidays
 
 60 
 
 AGREEMENTS. 
 
 Form 31. oi' vacations not exceeding in the wliolc in any year, and to lie 
 
 taken at such time or times as tlie co may approve, but so that he shall 
 always be cntled to a vacation of at least 3 days at Christmas and Easter 
 respectively. 
 
 0. The sd A. shall devote his best energies and the whole of his time 
 and attention to the co's concerns during the hours of Ijusiness as fixed 
 by the last preceding clause, and except as hereinafter provided he shall 
 not, without the consent of the co, employ himself in or about any 
 business or occupation except the business of the co. 
 
 G. Notwithstanding anything in the last preceding clause contd, the 
 sd A. shall be at liberty to give to other persons than the co advice with 
 regard to electrical matters and to charge therefor, bnt he shall not, for 
 
 A. to give 
 whole time. 
 
 Liberty to 
 advise other?;. 
 
 the ppose of giving such advice, leave the county of 
 consent in writing of the co. 
 Sahuy. 7. In conson of the performance by the sd A. 
 
 his agreenit the co shall pay to him a salary 
 
 1, p. a. l)y monthly paj^mts on the day 
 
 month. 
 
 As WITXESS, &c. 
 
 without the 
 
 of his part of 
 at the rate of 
 of each calendar 
 
 The following- clauses are occasionally used • — 
 Form 31a Whenever the profits of the co made during the financial year or other period 
 
 . _ conipi'ised in the accounts submitted to the oi-dinary general meeting in each 
 
 Commission on year are more than sufficient to pay a dividend on the pd-up capital of the co 
 
 surplus profits, for such period at the rate of 5 p. c. p. a., the sd , in addition to his salary 
 
 afsd, shall be pd a sum equal to 25 p. c. of the excess. 
 
 Form 31b. ^^ addition to his salary afsd, the sd shall he cntled to a commission of 
 
 10 p. c. on the profits made during the financial year or other period comi^rised 
 
 Commission on in the accounts submitted to each ordinary general meeting of the co. 
 l^rolits. 
 Form 31c Whenever a dividend is declared by the co in general meeting, and such 
 
 " dividend, together with the dividend or dividends, if any, previously pd. 
 
 Commission on amounts to more than 5 p. c. p. a. on the capital of the co for the time being 
 ividends. pd up as from the incorporation of the co to the time of the declon of such divi- 
 dend, then, and in such case, the sd shall, in addition to his afsd salary, 
 
 be entled to a commission equal to 10 p. c. of the excess, such commission to 
 be pd when the dividend becomes payable. 
 
 Appointment 
 of officers 
 by articles of 
 association. 
 
 An .igrccment 
 should lie 
 executed. 
 
 Appointment of Officers and Agents. 
 
 The articles of a company often purport to make appointments of managers 
 secretaries, agents, solicitors, and others ; but it is generally expedient, after 
 the incorporation, for persons so appointed to enter into an agreement in 
 writing with the company, defining the terms and conditions of the appoint- 
 ment. It has been settled that at any j-ate a j^erson not a jjarty to the articles 
 cannot rely on a stipulation contained therein as an agreement by the comi:)any 
 with him. Eley v. Positive Government, ^'c, Co., 1 Ex. Div. 8S ; Re Peace 4'- Co., 
 ^2 W. R. 131 ; Empress Engineering Co., IG C. Div. 125. But see Terrell v. 
 Hutton, '1 H. L. Cas. 1091. As to what is evidence of an ajipointment of an 
 officer by the company, see Browning v. Great Central Mining Co., 5 H. & N. 856; 
 29 L. J. Ex. 399. 
 
 Moreover, if the agreement is not to l>e performed within a year, it is neces- 
 sary to have an agreement in writing, by reason of s. 1 of the Statute of Frauds.
 
 FORMS. 61 
 
 Eley V. Positive Government, Sfc, Co., 1 Ex. Div. 20; S. C. 88 ; Davey v. Shannon, Porni 31 
 
 •1 Ex. D. 81. However, the signature of the secretary of a company to a minute 
 
 recording a resolution for his appointment may be sufficient. Jones v. Victoria 
 Graving Dock Co., 2 Q. B. Div. 314. 
 
 Specific performance of a contract for hiring and service ■will not be decreed. No specific 
 Stoker v. Brocklebank, ^'c, Co., 3 M. & G. 250 ; Br.ett v. East India, ^c., Co., 2 performance of 
 H. & M. 404 ; W. R. 596 ; Mair v. Himalaya Tea Co., 1 Eq. 411. But if the ^'o^tract for 
 agent is a member of the company, and the regulations provide for his emi^loy- 
 ment, he might be able to obtain an injunction restraining the directors from 
 interfering with him (Pulbrook v. Richmond, cfc, Co., 9 C. D. GIO). Where, 
 liowever, the majority of the members are against him the company will not 
 be restrained {Harben v. Philli2)s, 28 C. Div. 44), unless, perhaps, where there is 
 a negative covenant. See infra, p. 339. 
 
 A resolution or oi'der for winding up is equivalent to a dismissal of a com- Pie.solution 
 pany's servants. Chapman's case, 1 Eq. 34G ; Shirreff's case, 11 Eq. 417. o^' order to 
 
 And if an agent or servant has been appointed for a term at a salary, he will ^md iqi = 
 be entitled to prove in the winding vip for the valvie of his salary for the unex- 
 pired residue of the term. Yelland's case, 4 Eq. 350 ; Ex parte Clark, 7 Eq. 550. -^s to proof in 
 But when, in addition to his salary, an agent is to have a commission on busi- ^^^^'^ ^"° "^'' 
 ness done, he is not, upon a winding up, entitled to prove for what he might YcUand.s 
 have otherwise earned. Ex parte Maclure, 5 Ch. 736. This was a case of a "*'^' 
 
 voluntary winding up, and the same rule must d fortiori apply in a compulsory ■^S^'i* cannot 
 • T • ' prove for 
 
 winding ui). i ^ 
 
 iiitiirG com* 
 In a recent case before the House of Lords, it ajiijeared that an agreement mission. 
 
 had been made between A. and B., that B. should be sole agent at Liverpool pj . . r . 
 for the sale of A.'s coal during a term of years, at a certain commission; A.' to looocl 11.' L. 
 have the control of the iirices, with power for him to rescind if B. did not sell 
 a certain minimum, and power for B. to rescind if A. could not supply a certain 
 minimum. A. sold his colliery before the expiration of the term, and it was held 
 that an action by B. against A. for damages for breach of the agreement occa- 
 sioned thereby would not lie, for that the agreement did not bind A. to keep his 
 colliery, or to send any coal to Liverjjool. Rhodes v. Forwood, 1 Ap. Cas. 257. 
 
 It follows from this case that if a company made such an agreement, and then 
 passed into liquidation, the agent could not jirove for damages. 
 
 But where a business is sold to a conqjany on the terms that the purchase 
 money shall be paid off out of profits, an agre'ement to carry on the business 
 maybe implied. Telegraph Despatch Co. v. McLean, 8. Ch. 658 ; Lindley, 378. 
 
 It is very common exjiressly to fix by agreement the compensation to be pay- Agreement to 
 able to the agent in case his agency shall be terminated by the company. Thus, payspecificsum 
 in Logan's case, 9 Eq. 119 ; 14 W. E. 273, Logan was by the articles ajipointed %„p^^ ° 
 managing director of a company, at 800?. per annum, and a commission on ^ ' '. n 
 profits. It was also provided that : " In the event of the said L. being at any ''^""' * 
 time deprived of or removed from his office for any other cause than gross mis- 
 conduct, the directors shall pay to him as compensation for loss of office a sum 
 equal to three years' salary . . . ." The company was ordered to be wound 
 up, and Logan was held entitled to prove for three years' salary. See also 
 Shirreff's case, 14 Eq. 417 ; 20 W. E. 966. 
 
 But where an order had been made to wind up a company of which T. was an 
 officer, one of the terms of his engagement being, that, " 5,000?. be paid to him 
 if the company discontinue to employ him," it was held by Lord Cairns, that 
 " T. was not entitled to prove for the 5,000?., as there was no voluntary, active, 
 and intelligent discontinuance by the company of the employment of T." Re 
 Albert Life Ass. Co., Tait's claim, 16 Sol. J. 46. 
 
 Where A. is entitled to the exclusive services of B., and C. induces B. to break 
 the engagement, A. may be entitled to sue C. for damages. Boiven v. Mall, G 
 Q. B. D. 339 ; 29 W. R. 367.
 
 MEMOEANDA OF ASSOCIATION. 
 
 INTRODUCTORY NOTES. 
 
 j\toile of 
 formin.^ 
 foiiipuiiy. 
 
 Section G of the Act of 1802 ju-ovides that : — 
 
 G. Any seven or more persons associated for any lawful purpose may, by sub- 
 scribing- their names to a memorandum of association and otherwise complying 
 with the requisitions of this Act in respect of registration, form an incorporated 
 company, with or without limited liability. 
 
 Mode of 
 hiiiitiiii,' lia- 
 l)ility of 
 meniber^. 
 
 IVIeinoraiuhim 
 of asfoci;itiou 
 of a coinjiany 
 limited l>y 
 sliares. 
 
 Memorandum 
 of association 
 of a company 
 
 And section 7 provides as follows :— 
 
 7. The liability of the members of a company formed under this Act may, 
 according to the memorandum of association, be limited either to the amount, 
 if any, unpaid on the shares respectively held by them, or to such amount as 
 the members may respectively luidertake by the memorandum of association to 
 contribute to the assets of the company in the event of its being wound up. 
 
 As to the memorandum of a cojnpany limited by shares, section 8 
 provides that : 
 
 S. Where a comijany is formed on the jsrinciiile of having the liability of its 
 members limited to the amount unpaid on their shares, hereinafter referred to 
 as a company limited by shares, the memorandum of association shall contain 
 the following things ; (that is to say,) 
 
 (1.) The name of the proposed company, with the addition of the word 
 
 " limited " as the last word in such name : 
 (2.) The part of the United Kingdom, whether England, Scotland, ov Ireland, 
 
 in which the registered office of the company is proposed to be situate : 
 {:].) The objects for which the jn-oiiosed company is to be established : 
 (1.) A declaration that the liabilitj^ of the members is limited : 
 (5.) The amount of capital with whicli the company jn-oposes to be registered 
 divided into shares of a certain fixed amount : 
 Subject to the following regulations: 
 
 (1.) That no subscriber shall take less than one share : 
 
 (2.) That each suT)scriber of the memorandum of association shall write op- 
 posite to his name the nvunber of shares he takes. 
 
 For form (jf such a memorandum, see infra, p. 75. 
 As to the memorandum of a company limited by j^uarantee, section 9 
 of this Act provides as follows : — 
 
 0. Where a company is formed on the principle of having the liability of its 
 members limited to such amount as the members resjiectively undertake to 
 contribute to the assets of the company in the event of the same being wound
 
 INTRODUCTORY NOTES. 63 
 
 up, liereinafttT i-fferrod to as a company limited Ly guarantee, the mcmorandmu limited by 
 of association shall contain the following things ; (that is to say,) guarantee. 
 
 (1.) [Name: as above. 2 
 
 (2.) [Registered office : as above. 1 
 
 (3.) [Objects: as above. 2 
 
 (4.) A declaration that each member undertakes to contribute to the assets of 
 the company, in the event of the same being wound up during the 
 time that he is a member, or within one year afterwards, for payment 
 of the debts and liabilities of the company contracted before the time 
 at which he ceases to be a member, and of the costs, charges, and 
 expenses of winding up the company, and for the adjustment of the 
 rights of the contributories amongst themselves, such amount as may 
 he required, not exceeding a specified amount. 
 
 For foi'in of such a memorandum, see infra, \^. 7(;. 
 
 And section 14 of this Act requires that where the company has a 
 capital divided into shares, each subscriber must take one share at least, 
 and is to write opposite his name on the memorandum of association the 
 number of shares he takes. As to this see further, infra, p. 7(>. 
 
 As to the memorandum of an unlimited company, section 10 of this 
 Act provides as follows : — 
 
 10. Where a company is formed on the principle of having no limit placed Memorandum 
 
 on the liability of its members, hereinafter referred to as an unlimited com- "^'^ associatioa 
 
 "pany, the memorandum of association shall contain the following things ; (that ?• •? \"^' 
 f *' o n 1 \ hmited 
 
 IS to say,) company. 
 
 (1.) The name of the proposed company : 
 
 (2.) [Registered office: as above.'] 
 
 (3.) [Objects: as above.] 
 
 For form, see infra, p. 81. 
 
 With regard to the reoistration of the memorandum of association, it 
 is provided by section 17 of this Act that : — 
 
 17. The memorandum of association, and the articles of association, if any, Kegistratioa 
 
 shall be delivered to the Registrar of Joint Stock Comi>anies hereinafter men- of memo- 
 
 tioned, who shall retain and register the same : There shall be j^aid to the I'l^Jum 
 
 Registrar by a company having a capital divided into shares, in resnect of the "r articles 
 
 1 ,^ ,. 1 ■ .1 i ,1 TIT-..,,,. or association, 
 
 several matters mentioned m the table marked B. m the first schedule hereto, 
 
 the several fees therein specified, or such smaller fees as the Board of Trade 
 
 may from time to time direct ; and by a company not having a cajiital divided 
 
 into shares, in respect of the several matters mentioned in the table marked C. 
 
 in the first schedule hereto, the several fees therein specified, or such smaller 
 
 fees as the Board of Trade may from time to time dii-ect : All fees i)aid to the 
 
 said Registrar in pursuance of this Act shall be paid into the receipt of Her 
 
 Majesty's Exchequer, and be carried to the account of the consolidated fund of 
 
 the United Kingdom of Great Britain and Ireland. 
 
 Copies of tables B. and C. will be found infra, p. 7;!. 
 As to the effect of registration, section is of this Act pro^'ides 
 that:— 
 
 18. Upon the registration of the memorandum of association, and of the pifept of 
 articles of association in cases where articles of association are required by this icistration. 
 Act, or by the desire of the parties to be registered, the Registrar shall eertifv 
 
 under his hand that the comiiany is incorporated, and in the case of a limited
 
 64. 
 
 MEMOEANDA OF ASSOCIATION. 
 
 StaiDp, signa- 
 ture, and 
 effect of 
 memorandum 
 of association. 
 
 Name of 
 company. 
 
 Section 20. 
 
 Improper use 
 of name. 
 
 Names tle- 
 
 comijany that the company is limited : The subscribers of the memorandum of 
 association, together with such other persons as may from time to time become 
 members of the company, shall thereupon l)e a body corporate by the name 
 contained in the memorandum of association, capable forthwith of exercisino- 
 all the functions of an incoriDorated company, and having perpetual succession 
 and a common seal, with power to hold lands, but with such liability on the 
 part of the members to contribute to the assets of the company in the event of 
 the same being wound up as is' hereinafter mentioned : A certificate of the incor- 
 poration of any company given by the Eegistrar shall be conclusive evidence 
 that all the requisitions of this Act in respect of registration have been complied 
 with. 
 
 As to the stamp, signature, and effect of menioranclum, section 1 1 of 
 this Act provides as follows : — 
 
 11. The memorandum of association shall bear the same stamp as if it were 
 a deed, and shall be signed by each subscriber in the pi'esence of, and be attested 
 by one witness at the least, and that attestation shall be a sufficient attestation 
 in Scotland as well as in England and Ireland : It shall, when registered, bind 
 the company and the members thereof to the same extent as if each member 
 had siibscribed his name, and affixed his seal thereto, and thei'e were in the 
 memorandum contained, on the part of himself, his heirs, executors, and 
 administrators, a covenant to observe all the conditions of such memorandum, 
 subject to the provisions of this Act. 
 
 With regard to the several clauses contained in the memorandum of 
 association : 
 
 As to the name: — 
 
 This clause is required in every memorandum. The choice of the 
 name rests with the subscrihers of the memorandum. They are, subject 
 to section 20 of the Act, free to select any name they like, so, neverthe- 
 less, that the word limited shall, in case of a company limited by shares 
 ov by guarantee, form the last word of the name. [See, however, 
 i/ifra, p. ()").] 
 
 Section 20 provides that : — 
 
 20. No company shall be registered under a name identical with that by 
 which a subsisting company is already registered, or so nearly resembling the 
 same as to be calculated to deceive, except in a case where such subsisting 
 company is in the course of being dissolved, and testifies its consent in such 
 manner as the registrar requires ; and if any comi:)any, through inadvertence 
 or otherwise, is, without such conse<irt as aforesaid, registered by a name 
 identical, [c^-c, provision /or change of name. ^ 
 
 The registration of a company by a name which is calculated to 
 deceive, by reason of its identity with or resemblance to the name used 
 l)y some unregistered company, partnership, or person, will not ])revent 
 the Courts from inter^'cning, in a proper case, by injunction, to jjrotect 
 the rights of such last-mentioned company, partnership, or person. As 
 to the principles on which the Court interferes, see the notes to Croft y. 
 Day, in Tudor's L. C. jMerc. Law, 503 ; and Kerr on Injunctions, 47-i. 
 But in most of the reported cases against companies injunctions have 
 ])een refused. 
 
 Se^|(?7/r London anil Frovi/icial Law Assurance Societtj v. The Lo?ido7i
 
 INTEODUCTORY NOTES. 
 
 65 
 
 and ProrinridI Joint Sfock Lift' Assiirancr Conqmnij, 17 L. J. Ch. 37 ; scriptive of 
 The Colonial Life Assuninre Companij v. Tlic Homo and Colonial Assiir- l°<^"'''*y- 
 (Vice Company, Limited, ;58 Bcav. 548 ; 33 L, J. Cb. 741 ; The London 
 Assurance Corporcdion v. The London and Westminster Assurance Cor- 
 poration, Limited, \) Jur. N. S. 843 ; 32 L. J. X. S. (iG4 ; The Merchant 
 Banking Conijianij of London v. The Merchants Joint Stock Bank, f) C. D. 
 r)(!0 ; The London and Countij Banking Company v. The Capital and 
 Counties Bank ,- mentioned in the last case : Caardian Fire and Life v. 
 Guardian and General, 43 L. T. 791. See also Estcourt v. Estcourt Hop 
 Essence Company, 10 Ch. 27G, where the Lord Chancellor was of 
 opinion that an injunction would have heen granted but for the plain- 
 tiff's laches. 
 
 In the second case mentioned in the preceding paragraph, the Master 
 of the Rolls in refusing an injunction said that, "The object of this 
 application is really to obtain a monopoly of the use of the Avord colonial. 
 . . . But if a company which does colonial business cannot call itself 
 * colonial,' it is obvious that under a species of assertion that the word 
 colonial is symbolical, the plaintiffs might prevent every other person 
 using it as descriptive of his trade. Tt is obvious such a claim cannot 
 be maintained ; it would establish a monoply of the words 'home' and 
 ^colonial.'" 
 
 In Hendricks v. Montagu, 17 C. D. 038, an injunction Avas granted 
 at the suit of the Universal Life restraining the registration of a company 
 as the Universe Life. 
 
 It is expedient here to draw attention to a rule made some years ago As to the word 
 by the Board of Trade, viz., that the registrar shall not register any * '°^ 
 memorandum of association for the incorporation of a company by a 
 name of which the word " Royal " forms part, unless there be special 
 circumstances for relaxing the rule, e.y., where the word " Royal " has 
 been used in connection witli jn-operty which the company is to acquire, 
 or where jX'rmission to use the word has been granted by the Home 
 Office. This rule has been rigorously enforced, and accordingly there 
 are comparatively few companies on the register having names which 
 include the word referred to. 
 
 Where, in special circumstances, it is desired to register Avitli the Avord 
 *' Royal," ap})lication should be made to the Home Office. 
 
 Before finally settling on a name and getting documents printed, it is 
 generally desirable to ascertain fi'om the Registrar of Joint Stock Com- 
 panies that no objection exists to the proposed name. 
 
 Section 20, as above mentioned, p. (!4, jirohibits the registration of a As to ex- 
 second company Avith the same name as a subsisting company, " except ggg^j^" 2q 
 in any case Avhere such subsisting company is in course of being dissolved 
 and testifies its consent in such manner as the registrar requires. The 
 poAver thus given is fi-equently exercised, especially in cases of recon- 
 struction or amalgamation. See " Reconstruction," infra. 
 
 As to change of name, see "Resolutions," i^ifra. As to omitting Change of 
 the word limited, in some cases a company may be registered jflS a °'^™^- 
 
 F
 
 66 
 
 MEMOEANDA OF ASSOCIATION. 
 
 limited company without using the word " Limited " as part of its 
 
 name. These cases are specified in Section 2o of the Companies Act, 
 
 18G7. See 'i)\fr(t, p. 7H. 
 
 As to ilip rcfjif^icred office of the cojujtmi// : — 
 
 Refistered Clause 2 of eAciy memorandum must state in which part of the 
 
 office of Kingdom the registered office is proposed to be situate. This determines 
 
 company. ^yhere the company is to he registered, and also the jurisdiction to Avhich it 
 
 Avill be subject. See Section Hi, Sub-section o, and Section 81 of the Act. 
 
 As to tJie objecfs of the comiiCDuj : — 
 
 Objects of Clause 3 of the memorandum is to state the olgects for which the 
 
 company. proposed company is to be established. It is now well settled that the 
 
 objects of a company, as declared in the memorandum, are unalteral)le, 
 
 i.e. the company has no power to do anything not expressly or impliedly 
 
 authorised by its objects. Ashlunj Railiray Carriafje Co. v. Rklie, 7. 
 
 L. R. H. L. (IT);). Anything beyond the objects is ultra vires. 
 
 No ratification And even though the members of the company, unanimously, antho- 
 
 of a.ci vUra ■ ^^ directors to affix the seal of the comi^any to a contract vUra 
 
 vires the ^ i. j 
 
 company. vires the company, the contract is void. Nor can the members ex 'post 
 
 facto sanction or ratify a contract by the directors which is ultra vires 
 the company. The contract, l)eing wholly void in its inception, is. 
 incapable of ratification. Ashburij, Jtc, Co. v. Riche, vdi stqira. See 
 also Lindley, 2r)0. 
 Objects songlit This being the state of the law, it is essential to specify the objects of 
 stated" ^ ^^^^ company in the memorandum with the greatest care, for it may 
 entail serious inconvenience if, after commencing business, the company 
 finds that its objects arc too restricted. 
 
 The following are a few recent cases in which companies ha^'c been 
 unable to do what they wanted on the ground that it would huxe been 
 uUra vires : — A life assurance company wanted to carry on the business of 
 fire insurance : a brewery company wanted to cany on the business of a 
 malting company : a company formed to run steamers from A. to B. 
 wanted to ran a line from B. to D. : a company formed to lend money 
 on land in a colony wanted to lend on land in England: a colliery 
 company wanted to work an adjacent mine in partnership with another 
 company : a submarine cable company Avanted to enter into an arrange- 
 ment with another cable company for joint working : a steamshij) com- 
 pany running vessels betwijen foreign ports wanted to sell some of its 
 vessels to a foreign company which would have ])rivileges not accorded 
 to an English company, and to accept pa^Tuent in shares : a comj^any 
 formed to invest and lend money on land in a colony wanted to act as 
 agent for lenders and to guarantee investments : a com})any formed to 
 carry on l)usiness as stock aiul share brokers wanted to Iniy and sell on 
 its own account : a pier company wanted to establish an a(iuarium on 
 some adjacent land. 
 
 In several of these cases the company was reconstructed in order to 
 acquire the necessary powers. See " Reconstruction," infra. 
 
 It is therefore exceedingly desirable, not merely to state the main
 
 INTRODUCTOEY NOTES. 
 
 67 
 
 objects of the company, but also any ancillary o])jects which the com- 
 pany is intended to have, or may possibly require, and which are not 
 necessarily implied from the statement of the main objects, or cannot 
 with confidence be left to the operation of the general words with which 
 every memorandum closes. Practice varies as to where to draw the line, 
 but it has now become customaiy to set out the objects iu considerable 
 detail, and although this iu many cases leads to the statement of un- 
 necessary particulars, it is a fault on the right side. Indeed, it seems 
 folly to leave in doubt that which can be rendered iudisputaljle by the 
 insertion of a few words. 
 
 It was formerly not unusual to state the ol)jec!;s in the memorandum Old practice 
 with the utmost conciseness and then in the articles to elal)orate them — '''f .*° stating 
 
 objects. 
 
 p.(j.^ tlie objects as stated in the memorandum might be : " The working 
 of coal mines and the doing of all such things as are conducive or 
 incidental thereto." The articles would, inkr alia, contain power 
 for the directors to sell the undertaking of the company in consideration 
 of cash or shares, to promote other companies, to purchase and hold 
 shares in other companies, to purchase the business of any other com- 
 pany, and undertake the liabilities thereof, to enter into partnership 
 ari'angements, to lend money, to guarantee contracts, and so forth. 
 Where this plan was adopted there was great danger that some of the 
 ])Owers expressly conferred on the director by the articles would be held 
 ultra I'irrs of the company. 
 
 According to present practice the reverse of this plan is adopted. Present 
 Thus in the above case the powers conferred by the articles on the P^^'^'ctice. 
 directors would ])e inserted as objects of the company in the memoran- 
 dum, while the articles would empower the directors to exercise all the 
 powers of the company not l)y statute re(juired to be exercised in general 
 meeting, suljject, perhaps, to certain restrictions. 
 
 The objects clause of the memorandum generally closes with the fol- Use of general 
 
 lowing words: "And to do all such other things as are incidental or ^!°J*^-^ "\ 
 
 ^ . objects clause, 
 
 conducive to the attainment of the aliove ol)]ects or any of them.' ^^. . 
 
 These w^ords only authorise the doing somethiug hom fide connected 
 
 with the objects to be obtained, and in the ordinary course of business 
 
 adapted to their attainment. Joint S'toclr Co. v. Brown, 3 Eq. 150. 
 
 Thus, where a company was formed to work a colliery, it was held that 
 
 these words authorised a purchase of it. In ro Baijlan Hall Colliery 
 
 Co., 5 Ch. 35G. In that case Giffard, L. J., said : " It was urged that 
 
 purchasing thQ collieiy was not one of the objects ; but the company 
 
 could not work the colliery without first acquiring some interest in it, 
 
 and I think, therefore, that the purchase of it was an act ' conducive ' to 
 
 the attainment of the primary object." Even in the absence of these 
 
 words it would seem that the necessary power might have been implied. 
 
 See LcifrhiliVs Case, 1 E(j^. 2o."), where a company was formed for using 
 
 patented machinery, and it was held that a purchase of the patent was 
 
 intra vires. See Gniness v. Land Corporation of Ireland^ 22 C. Div. 34, 
 
 as to the limited operation of the words. 
 
 F 2
 
 68 
 
 MEMOEANDA OF ASSOCIATION. 
 
 As to general 
 words giving 
 company 
 power to do 
 ■what it 
 " thinks " 
 conducive to 
 attainment of 
 objects. 
 
 Practice of 
 office. 
 
 Power to 
 extend objects 
 cannot be 
 given. 
 
 Mortgage 
 
 Debenture 
 
 Act. 
 
 It occasionally happens that a niemoranduni declares {uitcr alia) that 
 the objects are : " To do all such other things as the company may ih'mk 
 incidental or conducive to the attainment of the above objects." Peru- 
 vian Raihrays Co. v. Thames, iir., Co., 2 Ch. 017 ; but it is conceived 
 that this variation does not really extend the objects. 
 
 Until recently it was the practice of the office of the Registrar of 
 Joint Stock Companies to require general Avords to follow the statutory 
 forms. FeeFs Case, 2 Ch. (iTH ; but this practice has been abandoned, 
 and general words may be made as extensiAe as desired. It is, however, 
 generally considered better not to rely too much on the effect of general 
 words, but to state the objects in sufficient detail, and conclude as in the 
 statutory forms. 
 
 Foimerly, it was by no means uncommon to insert in the objects 
 clause of the memorandum words to the following effect: "And also 
 such additional or extended objects as the company may from time to 
 time determine." Examples niay be found in the following cases : 
 Clinch V. Financial Corporation, 5 Eq. 452 ; Syers \. Briyhton Breicenj 
 Co., 13 W. 11. 221 ; compare with Ashhary Fidilway, Ac, Co. v. Riche, 
 L. R. 7 H. L. 653. 
 
 It is conceived that such words ought never to be inserted, and that 
 the Registrar might properly decline to registrar a memorandum con- 
 taining them, on the ground that the objects of the company are not, in 
 fact, stated. Barned's Banlciny Co., Feel's Case, 2 Ch. 075. If, 
 nevertheless, he registers the company, the words, it would seem, must 
 be treated as null and void, but the point has not actually been decided. 
 In Ashhury, t{:c., Co. v. Riche, nbi supra, it was held that a power in the 
 articles to extend the objects must be held void. 
 
 The Court will put a fair and reasonable construction on the objects 
 clause, and not attempt to cut it down unduly. Bath's Case, H Ch. Div. 
 334 ; Royal Bank of India's Case, 4 Ch. 252 ; International Contract 
 Co.'s Case, W. X. ISO!), 24 ; In re Feruvian Railways Co., 2 Ch. 023 ; 
 International Contract Co., W. X. 1869, 24 ; 17 ^\. R. 454 ; Pulhrool v. 
 Neaj Civil Service Co-operation, 26 W. R. 11 ; New Somlrero Co. v. 
 Erlanyer, 5 Ch. Div. 73 ; Alt. -Gen. v. Great Eastern, 5 App. Cas. 473. 
 
 But general words will, as a rule, be construed as merely ancillary to 
 what appears to be the principal object of the company. Gnman Date 
 Coffee Co., 22 Ch. Div. 109 ; Haven Gold Co., Ilml. 151 ; Ashhvry Co. 
 V. Rkhe, L. R. 7 H. L. 053. Compare these with International Contract, 
 tiM supra, and Fhoenir v. Bessemer, 34 L. J. Ch. 683, and see Addenda. 
 
 It may here be mentioned that under the Mortgage Debenture Act, 
 1865, 28 & 29 Vict. c. 78, s. 3, amended by 33 & 34 Vict. c. 20, com- 
 panies formed under the Act of 1862 to advance money on land, &c., 
 may limit their objects by special resolution so as to obtain the benefit of 
 the a])ove Acts. This ]iower, however, ajipears to apply only to com- 
 panies " already constituted," i.e., in 1865. 
 
 AVc have now considered the clauses of the memorandum as to the
 
 INTRODUCrOIlY NOTES. 69 
 
 name, office, aud objects of the company. These are the only clauses 
 contained in the memorandum of an unlimited company. A company 
 limited by shares has two more clauses, namely, as to the h'mited liability 
 and as to the capital. Of these presently. 
 
 A company limited by guarantee has only one more clause, namely, Clause as to 
 that referring to the guarantee. As to the form of this, see infra, p. 70. s^iarantee. 
 The amount of the guarantee Avill depend on the nature of the com- 
 pany. If the company requires extensive credit it will be "well to make 
 the amount of the guarantee considerable, ej/., Oo/. or loO/. per meml)er. 
 But the limitation of lialjility l)y guarantee is rarely adopted, except in Amount of 
 the case of law societies, chambers of connnerce, and other societies g^i^^aiit<^6- 
 of an analogous character (see vifra, p. 79) ; and such societies do 
 not require much credit. Accordingly the amount of the guarantee 
 commonly runs from Is. to bl. or 10/. per member. The same kind 
 of company is generally selected where the objects are mutual as- 
 surance ; but mutual assurance societies do not require much credit 
 as regards outsiders, and the amount of the guarantee has no bear- 
 ing on the liability of members inter se, and a 5/. guarantee is common 
 enough. 
 
 With regard to a company limited by shares, the memorandum must Clause as to 
 also contain a declaration that the liability is limited. This declaration j|"Jj'j^jj^ 
 does not prevent the articles from extending the liability of the membei's 
 mter se. HilVs Case, 20 Eq. 59 ; Peninsula Co. v. Fleminj, 27 L. T. 
 N. S. 93. 
 
 The 5th clause of the memorandum of a company limited by shares Capital. 
 must state the nominal capital and the number of shares into which it 
 is divided, with the amount of each share. 
 
 The capital so registered may be varied in the following particulars. 
 It may be increased ; it may be consolidated and divided into shares of 
 larger amount than the existiug shares ; and paid-up shares may be 
 converted into stock ; the shares may be subdivided ; and the capital 
 may, with the sanction of the Court, be reduced. 
 
 As the capital can be readily increased, there is no object in starting 
 with a very large nominal capital ; but no saving is effected by starting 
 Avith less than 2,000/. capital. 
 
 The amount of the shares depends on several considerations. If the Amount of 
 
 public are to be invited to apply for shares, the amount should be 
 
 moderate, for it is generally found that there is a better market for 5/, or 
 
 10/. shares than for larger ones. Indeed 1/. shares are very popular. 
 
 Moreover, it is "-enerallY expedient not to leave much, if any, liability on Objection to 
 
 " . shares only la 
 
 the shares issued. So long as shares are not fully paid up, their value, pan jnid up. 
 
 unless in exceptional cases, is impaired by the existence of the liability ; 
 
 and if the company should experience reverses, its shares may become 
 
 almost unmarketable. Of course, under the Act of 1867, the hability How to get 
 
 may be reduced or extinguished ; but the process is tedious and expen- iiabiiitj% 
 
 sive, and not unlikely to damage the credit of the company. However, 
 
 so burdensome are shares subject to any considerable liability, that the
 
 70 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Whether 
 power to issue 
 preference 
 shares to be 
 inserted in 
 capital clause. 
 
 Association 
 clause. 
 
 Memoranclnm 
 may be in 
 writing or 
 printed. 
 
 Witness. 
 
 Certificate 
 evidence that 
 requisitions 
 of Act com- 
 plied with. 
 
 Act of 18G7 is not uncommonly resorted to to get rid of it. Or, what 
 in many cases is much simpler, the company is re-constructed as a 
 company with the same name and objects, but with reduced liability. 
 See infra, " Eeconstruction.'" 
 
 Of course, however, there may be cases in which the security afforded 
 by the existence of a large amount of uncalled capital may be deemed 
 requisite or expedient, e.g., in a banking, investment, or insurance 
 company. 
 
 Some persons frame the capital clause of the memorandum of a com- 
 pany limited by shares as follows : " The capital of the company is 
 20,000/., divided into 2,000 shares of 1()/. each, with power to increase 
 the capital and to issue any of the original shares or shares of increased 
 capital as preferential or guaranteed or deferred shares." See also 
 Form 32. 
 
 The object of so framing the clause is to secure the power to issue 
 preference shares, for some doubt existed at one time as to whether a 
 power in the articles alone was sufficient authority. This doubt no 
 longer exists [see " Eesolutious," infra'], and there seems, therefore, no suffi- 
 cient reason for so framing the capital clause, excej^t where Table A. is 
 adopted. Where, however, the original capital as stated in the memo- 
 randum is, ab initio, intended to be divided into shares of different 
 classes, it is usual to state the fact in the memorandum, c.ff., " The 
 capital of the company is 100,0()0/., divided into .'),000 preference shares 
 of 10/. each, and lo,()(i0 deferred shares of 5?. each." 
 
 On referring to the Forms of memoranda of association given below 
 (p. 7") ft scq.), it will be seen that each of them closes with a declaration 
 that the subscribers desire to l)e formed into a company. 
 
 It will be observed that section 14 of the Act rcfjuires that, "in a 
 company limited by guarantee or unlimited, and having a capital 
 divided into shares, each subscril)er shall take one share at the least, and 
 shall write opposite his name in the memorandum of association the 
 number of shares he takes." It is generally cousidered that the word 
 " memorandum " in this paragraph is an error for " articles." See 
 Buckley, p. 9. However, the i)ractice of the registrar is to require the 
 number of shares taken to be stated in the memorandum. 
 
 The memorandum may be in writing, but, where articles are regis- 
 tered, it is usually printed with them. If in writing, it is sometimes 
 filled in upon a skeleton printed form. It must l)e signed hy at least 
 seven persons, in the presence of, and be attested by, one witness at 
 least. It is very connnon, tliough not necessary, for the same witness 
 to attest the signatui'es of all the subscribers. 
 
 The Act provides that a certificate of the incorporation of any com- 
 pany, given by the registrar, shall be conclusive evidence that all the 
 requisitions of the Act in respect of registration have been complied 
 with. 
 
 Thus in PceVs Case, 2 Ch. 074, the memorandum of a comjtany when 
 brought to the registrar was ol)jected to I)y iu'm as l)eing too wide in its
 
 71 
 
 INTRODUCTORY NOTES. 
 
 terms, whereupon the bearer, then and there, without any communication 
 with the persons who had signed it, made alterations to remove the 
 objections of the registrar, who at once registered it in the altered form. 
 It was held, nevertheless, that the certificate of registration haNing been 
 issued, section 13 of the Act applied, and that no person could be allowed 
 to go back and enter intcj an examination of the circumstances attending 
 the original registration. 
 
 So, also, in the Kasmu PhospJudr. Co.^ 2 Ch. Div. (WO, an order infant 
 had been made to wind up the comjiany, and it was subsequently dis- subscriber. 
 covered that one of the seven subscribers to the memorandmn was an 
 infant. It was held, nevertheless, that the winding-up order was valid, 
 since the certificate of registration which had been issued precluded any 
 question. 
 
 As to how far the conditions contained in the memorandum of asso- :\[o(lifie<ation 
 
 ciatiou of a company may be modified, see section 12 of the Act, and °^ (^ontlitions 
 . . ,^ , . ,, contained m 
 
 rnfra, " Resolutions. memorandum. 
 
 As to the effect of subscribing the memorandum of association : By Effect of 
 
 section 23 of the Act it is provided that :— subscribing 
 
 ^ memorandum. 
 
 " The subscribers of the memorandum of association of any company under 
 this Act shall be deemed to have agreed to become members of the company 
 whose memorandum they have subscribed, and upon the registration of the 
 company shall be entered as members on the register of members hereinafter 
 mentioned ; and every other jierson who has agreed to become a member of a 
 company under this Act, and whose name is on the register of members, shall 
 be deemed to be a member of the company." 
 
 Hence a subscriber to the memorandum is indisputably a member of 
 the company. 
 
 In a company limited by shares, no suljscriber shall take less than one Subscription 
 share, and each subscriber shall write oi)posite to his name the number ""/^f^*''^^"*^ 
 
 ' ^ ■■■ to take and 
 
 of shares he takes. Section S of the Act. pay for shares. 
 
 The subscriber agrees to take from iho companij the shares set oppo- 
 site to his name, and to jiay for them in money or money's worth. 
 Mignotii's Case, 4 Eq. 2:)S. The fact that no shares have ever in fact 
 been allotted to him, and that his name has never been put on the 
 register, will not relieve him ; Fva/i's Case, 2 Ch. 427, unless all the 
 shares have lieen allotted to otlier persons. Macklei/s Case, 1 Ch. 
 Div. 247. 
 
 As to what is payment in money's worth, see DrummomVs Case, 4 Ch. 
 772 ; PeWs Case, 8 Eq. 222, and 5 Ch. 11 ; Jones' Case, (i Ch. 48 ; 
 Baglan Hall Co., T) Ch. 34G. 
 
 A clause in the articles that shares subscribed for in the memo- Clause in 
 
 randum shall be deemed to l)e fully paid up is ineffectual. DenCs reiievrsub-"° 
 
 Case, 8 Ch. 67(1; Crkhnier's Case, 10 Ch. G14 ; Firmstone's Ti'^se, •'^criber from 
 
 20 Eq. 525. "^''^^'^'^^■- 
 
 The shares will be liable to payment in cash unless otherwise provided As to contract 
 
 fii 1 f 
 
 by a contract in writing, filed pursuant to the 25th section of the Act of to^Section"*5 
 
 18G7. See supra, p. 11. of the Act 
 
 of I8t)7.
 
 72 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Shares must 
 be paid in 
 cash unless 
 contract tiled 
 before issue. 
 
 When sliares 
 "are issued." 
 
 Contract made 
 before incor- 
 poration suffi- 
 cient if filed. 
 
 Whether 
 intending 
 vendor should 
 subscribe. 
 
 Member 
 entitled to 
 cojiy of 
 memorandum 
 and articles. 
 
 By sulj.st ribing the memorandnm, a contract is made to pay for the 
 shares in cash, and the effect of section 25 is, " tliat the liahihty to ]iay 
 in cash cannot he altered at all l)y snhscqnent agTecment and arrange- 
 ment with the directors ; it can only he effected by a written agTcement, 
 which written agreement mnst be entered into before the shares are 
 issned, and mnst be registered." Per Mellish, L. J., FoiherfiUVs Case, 
 8 C'h. 282 ; Anderson's Case, 7 Ch. Div. 75. 
 
 The contract must idcntlfij the shares, e.g., it should recite the fact of 
 the subscription or intended subscription of the memorandum, and pro- 
 vide that, as the consideration for the property or services thereby agreed 
 to be sold or rendered, the shares subscribed for shall be credited with so 
 much per share as i)aid up. FolherijiW s Case, 8 Ch. 270 ; Coafs Case, 
 17 Eq. ICD. And see Form 14, supra, p. ;52. 
 
 As to what is meant by the " issue " of the shares, see supra, p. 12. 
 
 A contract made on behalf of the company before its incorporation is 
 a sufficient contract within section 25 of the Act of 18(;7, if it be 
 adopted and acted upon by the company. See sajira, p. in. 
 
 It does not generally seem expedient, where a preliminary agreement 
 is made for the sale of property to a trustee for a proposed company, 
 that the vejidor should subscribe the memorandum for the numljer of 
 shares which are to l)e allotted to him, as fully paid up, pursuant to the 
 contract ; for there is always the possibility that the company will not 
 adopt the contract. However, in many cases, e.g., in the case of private 
 companies, there is no risk of this, and consequently no danger in sub- 
 scribing. 
 
 As to what is payment in cash, see S2ipra, p. 12. 
 
 The memorandum irrevocably binds a subscril^er thereof to take the 
 number of shares set opposite his name from the company, but if he 
 subscribes for ja-eference shares, he may subsequently agree with the 
 company to take ordinary shares instead, for as regards matters not 
 required by the Act to be stated in the memorandum, the contract con- 
 tained in it is revocable. DiiJre's Case, 1 Vh. Div. (i2o. "Where a person 
 subscribes the memorandum for shares, no allotment is required to render 
 him liable. In re London cj- Provincial, t|r., Co., 5 Ch. Div. 525. By 
 virtue of the siibscription he is entitled to the shares. 
 
 By section 11) of the Act it is provided as follows : — 
 
 " A copy of the memorandum of association, having annexed thereto the 
 articles of association, if any, shall be forwarded to any member at his request, 
 on payment of the sum of one shilling or such less sum as may be jH-escribed 
 by the company for each co^jy, and if any company makes default in forwarding 
 a copy of the memorandum of association and articles of association, if any, to 
 a member in jjursuance of this section, the company so making default shall, 
 for each offence, incur a penalty not exceeding 11." 
 
 Stamps and 
 
 fees. 
 
 As to stamping the memorandum of association : 
 By section 11 of the Act, the memorandum is required to bear the 
 same stamp as if it were a deed, i.e., a 105. stamp. 
 
 In addition to this it must before registration be stamj)ed with com-
 
 INTEODUCTOEY NOTES. 73 
 
 panics fee stamps, in i-espcct of the fees payable under section 17 of the 
 Act. See siqyra, p. 03. 
 
 The tables of fees referred to in section 17, are as follou's : — 
 
 TABLE B. 
 
 Table of Fees to be paid to the Eegistrar of Joint-Stock Companies by a 
 company having a capital divided into shares. 
 
 £ s. d. 
 For registration of a company whose nominal capital does not exceed 
 
 2,0mi., a fee of 2 
 
 For registration of a company whose nominal capital exceeds 2,000L, 
 the above fee of 21., with the following additional fees, regulated 
 according to the amount of nominal capital (that is to say) : 
 
 <£ s. d. 
 For every 1,000?. of nominal capital, or part of 
 
 l,000i., after the first 2,000?., up to o.OOOL . .10 
 For every 1,000?. of nominal capital, or part of 
 
 1,000L, after the first 5,000?., up to 100,000?. .050 
 For every 1,000?. of nominal capital, or part of 
 
 1,000?., after the first 100,000? 10 
 
 For registration of any increase of capital made after the first regis- 
 tration of the company, the same fees per 1,000?., or part of a 
 1,000?., as would have been payable if such increased capital had 
 formed part of the original capital at the time of registration. 
 Provided that no company shall be liable to pay in respect of nominal 
 capital on registration, or afterwards, any greater amount of fees 
 than 50?., taking into account in the case of fees payable on an 
 increase of capital after registration the fees paid on registration. 
 For registration of an existing company, except such companies as 
 are by this Act exempted from payment of fees in respect of 
 registration under this Act, the same fee as is charged for regis- 
 tering a new company. 
 For registering any document hereby required or authorised to be 
 
 registered, other than the memorandum of association . . .050 
 For making a record of any fact hereby authorised or required to be 
 recorded by the registrar of companies, a fee of . . . .050 
 
 TABLE C. 
 
 Table of Fees to be paid to the Eegistrar of Joint-stock Companies by a 
 company not having a capital divided into shares. 
 
 £ s. d. 
 
 For registration of a company whose number of members as stated in 
 the articles of association does not exceed 20 . . . . .200 
 
 For registration of a company whose number of members, as stated 
 
 in the articles of association, exceeds 20, but does not exceed 100 .500 
 
 For registration of a company whose number of members, as stated 
 in the articles of association, exceeds 100, but is not stated to be 
 unlimited, the above fee of 5?., with an additional 5s. for every 50 
 members or less number than 50 members after the first 100. 
 
 For registration of a company in which the number of members is 
 
 stated in the articles of association to be unlimited, a fee of . . 20 
 
 For registration of any increase on the number of members made 
 after the registration of the company in respect of every 50 mem- 
 bers, or less than 50 members, of such increase 5
 
 ■74 MEMOEANDA OF ASSOCIATION. 
 
 £ s. d. 
 
 Provided that no one company shall be liable to pay on the whole a 
 greater fee than 20?. in respect of its number of members, taking 
 into account the fee paid on the first registration of the company. 
 
 For registration of any existing company, except such companies as 
 are by this Act exempted from payment of fees in respect of regis- 
 tration under this Act, the same fee as is charged for registering a 
 new company. 
 
 For registering any document hereby required or authorised to be re- 
 gistered, other than the memorandum of association . . .050 
 
 For making a record of any fact hereby authorised or reqvured to be 
 
 recorded by the registrar of comimiiies, a fee of . . . .050
 
 MEMOEANDA OF ASSOCIATION. 
 
 Memorandum 
 of a company, 
 limited by 
 shares. 
 
 The Co.aipaxies Acts, 1SG2 to 188:^. Form 32. 
 
 Companij Limited l)y SJtares. 
 
 Memoraudum of Association of the Co, Limtd. 
 
 1 . The name of the eo is " The Co, Limtd." 
 
 See supra, pp. 02, Gi, et seq. 
 
 2. The registered oi!ice of the co will be situate in Enoland [_or 
 Scotland, or Ireland, as the case may be]. 
 
 See supra, p. GG. 
 
 3. The objects for which the co is established arc : — 
 See siqyra, pp. GO, G7. 
 
 (1.) To, &c., see i/ifra, "Objects," p. 89, et sefj. 
 
 4. The lial)ility of the members is limtd. 
 
 See supra, pp. G2, G9. 
 
 5. The capital of the co is /., divided into shares of J. 
 
 each. 
 
 See supra, p. 70. Where Table A. is to apply, [infra,, p. Ill] the following' 
 Tvords should he added to this clause : " with power to issue any shares in the 
 original or in any new capital as preference shares." 
 
 We, the several persons "whose names and addresses are subscribed, 
 arc desirous of being formed into a co, in psuance of this memorandum 
 of association, and we respectively agree to take the number of shares in 
 the capital of the co set opposite our respive names. 
 
 Names, Addresses, and Description of Subscribers. 
 
 Number of Shares taken liy 
 eacii Subscriber. 
 
 1. John Jones, of, &c.. Merchant. 
 
 2. John Smith, of, &c.. Landed Proprietor. 
 •3, Thomas Green, of, kc, Grocer. 
 
 4. Henky Thompson, of, &c., Commission Agent. 
 
 5. Charles Evans, of, &c., no occupation. 
 
 6. William Day, of, &c. , Surgeon. 
 
 7. Alfred Jones, of, &c., Wine Merchant. 
 
 Total Shares taken 
 
 Ten 
 
 Ten 
 
 Tliree 
 
 Seven 
 
 One 
 
 One 
 
 One 
 
 Thirty-three. 
 
 Dated the 22iid day of Jau., 1884.
 
 76 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 32. AYitness to the al)Ove signatures, 
 ~ Samuel Weller, 
 
 10, North Street, 
 
 Westminster. 
 
 Or, 
 Witness to the above signatures of John Jones, John Smith, William Day, 
 and Alfred Jones, Samuel Weller, &c. 
 
 Witness to the above signatures of Thomas Green, Henry Thompson, and 
 Charles Evans, Martin Clarke, &c. 
 
 Or, 
 Witness to the above signatures other than that of Thomas Green, 
 
 Samuel Weller, &c. 
 
 Witness to the above signature of Thomas Green, 
 
 Martin Clarke, &c. 
 
 Form 33. 
 
 ^Memorandum 
 of a company, 
 Hmited by 
 guarantee. 
 
 The Compaxies Acts, 18G2 to 1883. 
 Company Limited Inj Guarantee. 
 ^lemonDidum of Association of the Co, Limtd. 
 
 1. The name of the co is " The 
 See suj)ra, p. 63. 
 
 Co, Limtd." 
 
 2. The registered office of the co will be situate in England, \or 
 Scotland, or Ireland]. 
 See su'pro., p. 6G. 
 
 o. The objects for which the co is established are : — 
 (1.) To, &c., see infra, p. 89, et seq. 
 
 4. Every member of the co undertakes to contribute to the assets 
 of the CO in the event of the same being wound up during the time 
 that he is a meml)er, or within one year afterwards, for payment of the 
 debts and liabilities of the co contracted before the time at which he 
 ceases to be a member, and the costs, charges, and expenses of winding- 
 up the same, and for the adjustmt of the rights of the contribs 
 amongst themselves, such amount as may be required, not exceeding 10/. 
 [See supra, p. (!9.] 
 
 We, the several persons whose names and addresses are subscribed^ 
 are desirous of being formed into a co, in psuauce of this memo- 
 randum of association. 
 
 See supra, p. 70. 
 
 Xnmes, addresses, and descriptions of subscribers. 
 
 Ut supra, p. 75. And if there is a share capital, state the number of shares 
 taken by each subscriber. See as to this, svpi-a, p. 7U. 
 
 Dated the day of , 1884. 
 
 "Witness, iV:c., see siqua.
 
 FOEMS. 77 
 
 The IxcoTii'OPiATEi) Law Society. Form 34. 
 
 Memorandum of Assoc iai ion. Jiemorandum 
 
 • • mi T 1 T • M ''^ association 
 
 1. Ihc name of the society is " Ihe Incorporated Law Society, of a company, 
 
 Ur, " The Chamber of Commerce," or, " The i\redical lusti- ^i^^t^d by " 
 
 '^'URrintGC 0.11(1 
 tute."] See .s?//M-a, p. 03, ct acq. registered' 
 
 2. The rei'-istered office of the society \sinrra, p. <''<;1 pursuant to 
 
 "^ section 23 of 
 
 3. The objects for which the society \or. Chamber, or, Institute, &c.] the act of 
 
 is established are : — [See infra, p. 81, 107, et seqf\ l^^'^- 
 
 4. The income and property of the society, Avhencesoever derived, 
 shall be applied solely towards the promotidii of tlie objects of the 
 society, as set forth in this memorandum of association, and no ])ortion 
 thereof shall be pd or transferred, directly or indirectly, by way of 
 dividend, bonus, or otherwise howsoever, l)y way of profit, to the mem- 
 bers of the society. Provided that nothing herein coiitd shall pre- 
 vent the paymt, in good faith, of remuneration to any officers or 
 servants of the society, or to any member thereof, or other person, 
 in return for any services actually rendered to the society. 
 
 It has not been settled -whether this clause prevents the jjayment of interest 
 on money borrowed from a member. The first paraofraph of the clause might 
 reasonably be held to prohibit only a payment to a member qxi^i member, but 
 this construction would render the proviso superfluous. In order to oVjviate 
 doubt the proviso has, in several cases, with the sanction of the Board of Trade 
 been modified ; e.g., by the addition of the words " nor prevent the paymt of 
 interest at a rate not exceeding 5 p. c. p. a. on money bori'owed from any 
 member of the society," or words to that effect {Banff Town and County Club, 
 and Worcester Laiv Society, 1SN2) ; or, " but it shall nevei'theless be competent 
 to the corporation to rej^ay the contributions of the permanent memVjers, with 
 interest at 5 i). c. p. a., and also to remunerate" {Corporation of Foreign Bond- 
 Ivolders) ; " or be deemed to exclude any member of the association from the 
 benefit of any grant made in furtherance of any of the objects of the associa- 
 tion" {Incorporated Free <^* Open Church Assoc, 1882). 
 
 5. The fourth paragraph of this memorandum is a condition on which 
 a licence is granted ])y the Board of Trade to tlie society, in pursuance 
 of section 23 of The Companies Act, I8(;7. 
 
 r.. If any meml)er of the society pays or receives any dividend, bonus, 
 or other profit in contravention of the fourth paragraph (»f this memo- 
 randum, his liability shall be unlimited. 
 
 7. Every memlier of the society undertakes to contribute to the assets 
 of the society, in the event of the same l»eing wound up during the time 
 that he is a member, or within one year afterwards, for payment of the 
 debts and liabilities of the society contracted before the time at which 
 he ceases to be a member, and of the costs, charges, and expenses 
 of winding up the same, and for the adjustmt of the rights of the 
 contribs amongst themselves, such amount as may be required, not 
 exceeding five pounds, [or ten sJiillings, or vhaicvrr ihe amount fi.red on 
 may h(r\, or in case of his liability becoming unlimited, such other 
 amount as may be required in psuauce of the last preceding paragraph 
 of this memorandum.
 
 78 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 34. 
 
 Section 23 
 of the Act 
 of 1867 fre- 
 quently 
 resorted to. 
 
 8. If upon the winding up or dissolution of the society there remains, 
 after the satisfaction of all its debts and liabilities, any ppty whatso- 
 ever, the same shall not be pd to or distributed among the members of 
 the society, but shall be given or transferred to some other institution or 
 institutions having objects similar to the objects of the society, to be 
 determined by the members of the association at or before the time of 
 dissolution, and in default thereof by such judge of the High Ct of 
 Justice as may have or acquire jurisdiction in the matter. 
 
 9. True accounts shall be kei)t of the sums of money received and 
 expended by the association, and the matter in respect of which such 
 receipt and expenditure takes place, and of the property, credits, and 
 liabilities of the association ; and, subject to any reasonable restrictions 
 as to the time and manner of inspecting the same that may be imposed 
 in accordance with the regulations of the association for the time being, 
 shall be open to the inspection of the members. Once at least in every 
 year the accounts of the association shall be examined, and the correct- 
 ness of the balance-sheet ascertained by one or more properly quahfied 
 auditor or auditors. 
 
 We, the several persons whose names and addresses are suljscribed, 
 are desirous of being formed into a society in psuance of this memo- 
 randum of association. 
 
 Names, addresses, and descriptions of subscribers. Date, &c., as in 
 Form 70. 
 
 Section 23 of the Act of 18G7 provides : — 
 
 " Where any association is about to be formed under the Act of 18G2, as a 
 limited comi^any, if it proves to the Board of Trade that it is formed solely for 
 the pui'pose of promoting commerce, art, science, religion, charity, or any other 
 tisefvil object, and that it is the intention of siich association to apply the pro- 
 fits or other income of the association in promoting its objects, and to prohibit 
 the payment of any dividend to the members of the association, the Board of 
 Trade may, by licence, under the hand of one of the secretaries, or assistant- 
 secretaries, direct such association to be registered with limited liability, with- 
 out the addition of the word limited to its name, and such association may be 
 registered accordingly, and upon registration shall enjoy all the privileges and. 
 be subject to the obligations by this Act imposed on limited companies, with 
 the exceptions that none of the provisions of this Act that require a limited 
 company to iise the word limited as any j^art of its name, or to publish its 
 name, or to send a list of its members, directors, or managers, to the registrar, 
 shall apply to an association so registered. The licence of the Board of Trade 
 may be granted upon such conditions and subject to such regulations as the 
 Board think fit to impose, and such conditions and regulations shall be bind- 
 ing on the association, and may, at the option of the Board, be inserted in the 
 memorandum and articles of association, or in both or one of such documents." 
 
 Section 23 has proved very useful, and a large number of associations have 
 been registered under it, generally as companies limited by guarantee, e.g., law- 
 societies, chambers of commerce, trade protection societies, medical societies, 
 ap-ricultural associations, and charitable associations. 
 
 For a list of some of the associations so registered, see infra. 
 
 An association desiring to be incorporated witli limited liability, but without 
 the word limited as part of the name, and for that pur^jose to obtain a licence 
 from the Board of Trade pursuant to s. 23 of the Act, should, according to the 
 rules now in force, make a written api^lication to the Board for a licence, and
 
 FOEMS. 79 
 
 toc^ether -witli such ai^ijlication, should transmit for their consideration a draft, Form 34. 
 
 in duplicate, of the proposed memorandum and articles of association. The 
 
 drafts and any subsequent revisions that may be required should, whether in 
 
 print or manuscript, be on foolscap-sized pa^^er. If the Board of Trade are 
 
 satisfied that the application should be entertained they will furnish a notice 
 
 of siich ajjplication, to be inserted in a local newspaper for the information of 
 
 the public, and if after the expiration of a limited time there appears to be no 
 
 sufficient reason why the licence should not be granted, the Board of Trade 
 
 will aj^prove the memorandum and articles of association, with or without 
 
 amendment, and grant a licence. 
 
 The Board of Trade will require to have the memorandum and articles of 
 association settled on their behalf by their counsel, at the expense of the aijpli- 
 cants, for which purj^ose a fee of five guineas must accompany the application. 
 A cheque for the amount should be made payable to an assistant secretary of the 
 Board of Trade. The Board of Trade will not be responsible for the memorandum 
 and articles being properly framed as regards the interests of the association. 
 
 The Board sanction the omission of the word " company " in the memoran- 
 dum and articles, and the substitution of the word chamber, society, corpora- 
 tion, or the like. 
 
 The names of the subscribers to the memorandum should be in full, the ■ 
 addresses should be definite, giving, where j)racticable, the name of the street i 
 and the number of the house. 
 
 The following is a specimen of the licence issued by the Board : — 
 
 Whas it has been proved to the Board of Trade that The Chamber Form 34a. 
 
 OF Commerce, which is aboiit to be registered under the Companies Act, 1862, 
 and the Companies Act, 1867, as an association limtd by giiai'antee, is formed 
 for the purpose of promoting objects of the nature contemplated by the 23rd 
 section of the last-mentd Act, and that it is the intention of the said cham- 
 ber that the income and property of the association, whencesoever derived, 
 shall be applied solely towards the promotion of the objects of the association, 
 as set forth in the memorandum of association of the said chamber, and that no 
 portion thereof shall be pd or transferred, directly or indirectly, by way of 
 dividend or bonus, or otherwise howsoever, by way of profit to the persons who 
 at any time are, or have been members of the said association,- or to any of 
 them, or to any person claiming through any of them. 
 
 Now, therefore, the Board of Trade, in psuance of the powers in them 
 vested, and in conson of the provisions and subject to the conditions contd 
 in the memorandum of association of the said chamber, as subscribed by eleven 
 members thereof on the 1th day of June, 1875, do by this their licence direct the 
 
 Chamber of Commerce to be registered with limtd liability, without the 
 
 addition of the word " limited " to its name. 
 
 Signed, by order of the Board of Trade, this day of . 
 
 HENRY G. CALCEAFT, 
 An Assistant Secretary of the Board of Trade. 
 
 The following are some of the associations which have been incorj^orated 
 with a licence under section 23 above mentioned : — 
 
 Associated Chambers of Commerce, City and Guilds of London Institute 
 
 1875. for the Advancement of Technical 
 
 Birmingham Exchange, 1880. Education, 1880. 
 
 Birmingham Medical Institute, Clifton High School for Girls, 1877. 
 
 1874. College of Organists, 1877. 
 
 British Dairy Association, 1879. Corporation of Foreign Bondholders, 
 
 British Dental Association, 1880. 1873. 
 
 Cheltenham Ladies' College, 1880. Dalrymple Home for Inebriates, 1882. 
 
 Church of England General Tempe- Diirham, &e., Botanical and Horticul- 
 
 rance Finance Association, 1878. tural Society, 1881.
 
 80 
 
 MEMORANDA OF ASSOCIAT.OX. 
 
 Form 34a. Glasgow Institute of Fine Arts, 1879. 
 
 Glasgow Mechanics' Institute 1878. 
 
 Halifax Creditors' Association, 1882. 
 Home Hospitals Association for Paying 
 
 Patients, LS78. 
 Huddersfield Borough Club, 1879. 
 Huddersfield Carlton Club, 1875. 
 Huddersfield Cricket and Athletic 
 
 Club, 1879. 
 Incorporated Council of Law Eeport- 
 
 ing, 1870. 
 Incorijorated Free and Open Church 
 
 Association, 1882. 
 Institute of Chemistry of Great Bri- 
 tain and Ireland, 1877. 
 Institution of Mechanical Engineers, 
 
 1878. 
 London Chamber of Commerce, 
 
 1881. 
 Manchester Coal Exchange, 1882. 
 Manchester Girls' High School Trust, 
 
 1877. 
 Metropolitan Dairymen's Society, 
 
 187G. 
 Mission Home for English Women in 
 
 Paris, 187G. 
 National Smoke Abatement Institu- 
 tion, 1882. 
 
 Newcastle-upon-Tyne Junior Liberal 
 Club, 188U. 
 
 Newnham College, 1880. 
 
 Palestine Exploration Fund, 1879. 
 
 Parkes Museum of Hygiene, 1882. 
 
 Philological Society, 1879. 
 
 PhilosoiDhical Society of Glasgow, 
 1878. 
 
 Physical Society of London, 1878. 
 
 Royal Army Coffee Taverns Associa- 
 tion, 1881. 
 
 Eoyal School of Art Needlework, 1878. 
 
 Sacred Harmonic Society. 
 
 Salisbury Diocesan Board of Finance, 
 1882. 
 
 ShefBeld Incorporated Society of Char- 
 tered Accountants, 1882. 
 
 Society for Promoting the Employ- 
 ment of Women, 1879. 
 
 Teachers' Training and Eegistration 
 Society, 1878. 
 
 Timber Trades Association, 1882. 
 
 University College, Bristol, 1870. 
 
 University of Durham College of Me- 
 dicine, 1877. 
 
 Whitby Institute of Popular Arts, 
 Sciences, and Literature, 1880. 
 
 Yorkshire College, 1878. 
 
 In many cases the association takes over the rights and liabilities of some 
 previously existing association. 
 
 Besides the above, various Law Societies, Chambers of Commerce, and Trade 
 Protection Societies might be mentioned. 
 
 Where an association is about to be established for any charitable or other 
 purpose within the meaning of section 23 of the Act of 18G7 (supra, p. 78), and the 
 power to pay dividends is not considered essential, it will be found very advan- 
 tageous to obtain a licence from the Board of Trade, and register the association 
 vmder that section. 
 
 The advantage of so doing is becoming more and more recognized, and 
 accordingly applications for licences to register under section 23 are increasing in 
 number. 
 
 Associations registered under that section are generally limited by gixarantee, 
 and accordingly they require articles of association. The executive is generally 
 called " The Council " or " The Committee of Management." See infra, for 
 articles of Law Society. 
 
 The following are some of the i-esulting .advantages : The association becomes 
 a permanent leg.al entity, .and thereby gains stability and credit ; the property 
 can be vested in .and held by the association in its own name, and thereby 
 dealings with such property .are much facilitated and expense as to tiiistees 
 avoided ; the association can contract, sue, and be sued in its own name ; the 
 officers can act without incurring any personal liaVjility. 
 
 For specimens of objects, see Form 111, infra, et seq. 
 
 The notice which the Board of Trade requires to be advertised is generjilly 
 in the following form : 
 
 Porm 34b. Application for a Licence of the Board of Trade. 
 
 Notice is hereby given th.at in psuance of the 23rd section of the Com- 
 panies Act, lf-G7, .applicon has been made to the Board of Trade for .a licence.
 
 FORMS. 81 
 
 directing an association, about to be formed under the name of The , to be Form 34b. 
 
 registei'ed with limited liability without the addition of the word " limited " to 
 
 its name. 
 
 The objects for which the association is established are : [Jfere they are stated^. 
 
 Notice is hereby further pfiven that any person, company, or corpoi-ation ob- 
 jecting to this ajiplication may bring such objection before the Board of Ti-ade, 
 
 on or before the day of next [about a month^, by a letter addressed to 
 
 the Assistant Secretary, Eailway Department, Board of Trade, Whitehall, 
 London, S.W. Dated this day of . 
 
 Section 21 of the Act of 1862 provides that : 
 
 " No company formed for the purpose of promoting art, science, religion. Certain 
 charity, or any other like object, not involving the acquisition of gain by the companies not 
 comijany or by the individual members thereof, shall, without the sanction of , 
 the Board of Trade, hold more than two acres of land ; but the Board of Trade ^cres without 
 may, by licence under the hand of one of their principal secretaries or assistant hcence. 
 secretaries, empower any such company to hold lands in such qviantity and 
 subject to such conditions as they think fit." 
 
 Ajid the notion aiJi^ears to prevail that all companies registered under s. 23 
 of the Act of 1SG7 are within this enactment, and therefore unable to hold 
 more than two acres without a licence. But looking to the decisions (infra, p. 91) 
 as to the meaning of the words " involving the acquisition of gain," in s. 4 of the 
 Act of 18G2, this notion does not appear to be well founded. In many cases 
 the objects of the association do involve the acquisition of gain by the associa- 
 tion if not by the members. In order to preclude doubt, the Board of Trade 
 sometimes has required the insertion of qualifying words in the objects. (See 
 infra, Form 111, cl. 9.) 
 
 The Companies Acts, 18G2 and 1807. Form 35. 
 
 ilemorandum of Association of The Co. . Memorandnm 
 
 . 01 unhniited 
 
 1 The name of the co is " Ihe — — Co. company. 
 
 2. The registered office, [sujira, p. 75.] 
 
 3. The objects for which the co is estabhshed are : — 
 
 We, the several persons whose names and addresses are subscribed, are 
 desirous of being- formed into a co in pursuance of this memorandum 
 of association. 
 
 Names, addresses, and descriptions of subscribers. 
 
 Dated the day of . 
 
 Witness [siqmi, p. 7(5]. 
 
 Common Forms. Form 36. 
 
 For use in connection with the " objects clauses," given infra, p. 90, d seq. 
 
 To carry on any other businesses which may seem to the co capable of ^x*]^*^'!"^ °" 
 being conveniently carried on in connection with the above or calcu- businesses. 
 
 a
 
 82 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 36. latecl directly or indirectly to enhance the value of or render profitable 
 ~~ any of the co's ppty or rights. 
 
 The above is frequently adopted, and has sometimes been found very useful. 
 
 To purchase 
 
 other 
 
 businesBes. 
 
 Form 37. To acquire, and undertake the whole or any pt of the business, ppty, 
 and liabilities of any jjerson or co carrying on any business which this 
 CO is authorised to carry on, or possessed of ppty suitable for the pposes 
 of this CO. 
 
 The above ought to be specified among the objects, if the company is intended 
 to have the power. Ernest v. Nicholls, G H. L. 401 ; Lindley, GOG. Express 
 mention should be made of liabilities. But see Overend, Gui-ney 4' Co. v. 
 Gibbs, L. E. 5 H. L. 480, as to what is sufficient. 
 
 Form 38. 
 
 To enter into 
 partnership, 
 take sliares, &c. 
 
 To enter into [partnership or into] any arrangement for sharing 
 profits, union of interests, co-operation, joint adventure, reciprocal con- 
 cession, or otherwise, with any person or co carrying on or engaged 
 in or about to carry on or engage in any business or transaction 
 which this co is authorised to carry on or engage in, or any Inisi- 
 ness or transaction capable of being conducted so as directly or in- 
 directly to benefit this co. And [to lend money to, guarantee the con- 
 tracts of or otherwise assist any such person or co, and] to take or 
 otherwise acquire shares and securities of any such co, and to 
 sell, hold, reissue, with or without guarantee, or otherwise deal with 
 the same. 
 
 Very clear powers are necessary to enable a company to enter into partner- 
 ship with any other company or person, or to take shares in any company. 
 Ex pcirte British Nation Life Assurance Ass., 8 Ch. Div. 704. The powers should 
 be expressly conferred by the memorandum of association, though the power to 
 acquire and hold shares may be applied from the natvire of the company's 
 business. See Royal Bank of India's Case, 4 Ch. 252, and see Addenda. It was 
 at one time contended that it was illegal for one company to take shares in 
 another, but the contrary is now well settled, provided the memorandum gives 
 the power. Earned' s Banking Co., 3 Ch. 105 ; International Contract Company's 
 Case, W. N. 1869, 24; 17 W. E. 454; In re Financial Corporation, 28 W. E. 760; 
 W. N., 1880, 88. 
 
 If Clause 43, infra, is used, the words in brackets will be omitted ; and if 
 Clause 57 is also used, the latter part of the above clause can be omitted. 
 
 Form 39. To sell the undertaking of the co or any pt thereof for such conson 
 ^~^^ as the CO may think fit, and iu parlar for shares, debentures, or securities 
 
 undertaking, of any other CO having objects altogether or in pt similar to those of 
 this CO. 
 
 A clause to this effect is not uncommonly inserted, and the jsower is some- 
 times found useful. • Of course every company under the Act of 1862 can effect 
 a sale of its undertaking imder s. 161 [infra, " Eeoonstruction "], but only by 
 going into liquidation. Circumstances, however, sometimes arise in which it 
 is more beneficial to sell without winding up, especially where the company is 
 in difficulties, or where the number of dissentients is likely to be considerable. 
 If the sale is made in consideration of shares, the shares can be held, or 
 sold, but they cannot in general be distributed except in a winding up. See 
 infra, p. 159.
 
 FOEMS. 
 
 83 
 
 To promote any other co for the ppose of acquiring all or any of Form 40. 
 the ppty and liabilities of this co or for any other ppose which may to promote 
 seem directly or indirectly calculated to benefit this co. companies. 
 
 Generally to pchase, take on lease or in exchange, hire, or otherwise Form 41. 
 acquire, any real and personal ppty, and any rights, or privileges m j~ 
 which the co may think necessary or convenient for the pposes of its property, &c. 
 business [and in parlar any land, buildings, easements, machinery, plant, 
 and stock-in-trade]. 
 
 A form to this effect is generally inserted. Sometimes the words in brackets 
 are omitted ; but it is usual to enumerate a number of items whicli the company 
 ■will be likely to require. 
 
 To invest and deal with the monies of the co not immediately Form 42. 
 required upon such securities and in such manner as may from time to I~7" 
 time be determined. 
 
 The above is frequently inserted, though probably not necessary to authorise 
 an interim investment — e. g., in government securities. Sometimes the clause 
 specifies the investments. 
 
 To receive money on deposit at interest or otherwise, and to lend Form 43. 
 
 money [and in parlar] to customers and others havino- dealino-s with ^, '. 
 
 To receive 
 the CO, and to guarantee the performance of contracts by any such money on 
 
 persons. deposit, lend 
 
 and guarantee. 
 The above is commonly used. See s. -W of the Act as to dejiosit companies. 
 Where power to lend or guarantee is desired, it should be expressly taken, unless 
 the other objects clearly imply it. West of England Bank v. Booker, 14: C. D. 317. 
 
 To raise money in such other manner as the co shall think fit, Form 44. 
 and in parlar by the issue of debentures, or debenture stock, perpetual or 'ZTZ : 
 
 . . -, ' r 1 rp^ borrow and 
 
 otherwise, charged upon all or any of the co's ppty (l)oth present mortgage, &c. 
 and future) including its uncalled capital. 
 
 The above is now very commonly inserted. In most cases it is unnecessary, 
 for a power to borrow is readily implied. Bryon v. Metrojiolitan, ^c. Omnibus 
 Co., 3 D. G. & J. 123 ; G W. E. 817 ; In re Marine Mansions Co., 4 Eq. 601 ; Ex parte 
 City Bank, 3 Ch. 758. "Where a company has power to borrow, it has an implied 
 power to secure the repayment of borrowed money by mortgage. Australian, 
 S(c. Co. V. Mounsey, 4 K. & J. 733 ; Bryon v. Metropolitan, S^c. Co., ubi supra. 
 Indeed it was said in the case of the Patent File Co. (6 Ch. 85), by Mellish,L.J., 
 that a company can mortgage unless expressly prohibited from doing so. See 
 also Gibbs' and West's Case, 10 Eq. 212. 
 
 As, however, the objects are now usually stated in detail, it is only consistent 
 expressly to invest the company with power to borrow and to mortgage. 
 
 As to mortgaging uncalled capital, see infra. Debentures, Introductory 
 Note. 
 
 To remunerate any person or co for services rendered, in placing or porm 45. 
 
 assisting to place any of the shares in the co's capital, or any deben- ■ 
 
 , ,, ... J.., To remunerate, 
 
 tures or other securities or the co. 
 
 This clause is now not uncommonly inserted, as companies frequently over- 
 
 a 2
 
 84, MEMOEANDA OF ASSOCIATION. 
 
 Form 45. step the limits to whioh the implied j^ower is probably subject. See Guiness v. 
 Land Corp., 22 C. Div. 349. 
 
 Form 46. To sell, improve, manage, develop, lease, mto-e, dispose of, turu to 
 
 To sell &e. account, or otherwise deal with, all or any pt of the ppty of the co. 
 
 This is almost always inserted, and expressly invests the company with ample 
 powers of dealing with its property. See in re Patent File Co., 6 Ch. 88. 
 
 Form 47. To do all or any of the a)Jo^'e things [in any pt of the world and] 
 rpp j^gj j^g as principals, agents, contractors, trustees, or otherwise, and hy or 
 
 trustees, &c. through trustees, agents, or otherwise, and either alone or in conjunc- 
 . tion with others. 
 
 The above is frequently inserted, with a view to providing for contingencies. 
 
 Form 48. To do all such other things as are incidental or conducive to the 
 General words, attainment of the ahove objects. 
 
 As to this, see supra, p. G7, et seq. 
 
 Form 49. And it is hby declared that the word " company " in this clause. 
 Interpretation ^xcept where used in reference to this co, shall be deemed to in- 
 clause. elude any partnership or other body of persons, whether corporated or 
 
 not incorporated [and whether domiciled in the United Kingdom or 
 
 elsewhere]. 
 
 The iise of a clause as above sometimes conduces to brevity. 
 
 Where the objects are variovis, the following words are commonly added, 
 "and so that the objects specified in each paragraph of this clause shall, 
 except where otherwise exjaressed in such paragraph, be in nowise limited by 
 reference to any other paragraph." These words are used in order to avert 
 the ejusdem generis construction [^siipra, p. G8], and may in many cases be 
 useful. 
 
 ADDITIONAL CLAUSES. 
 
 For occasional use in connection with the " common clauses," supra, p. 81, 
 et seq. 
 
 Form 50. To acquire the business of a now carried on by A. at , and 
 
 To acf uir a ^^^ '^vhole or any of the real and personal ppty belonging to the said A. 
 business. in connection with the said business, and to undertake all or any of the 
 
 liabilities of the said A. in relation to such business. 
 
 Where the memorandum contains a clause as above, the articles generally 
 contain a clause as in Form 117, cl. 3. Sometimes, however, it is considered 
 desirable to refer to the preliminary in the memorandum, and in such case the 
 words, " And with a view thereto," can be added to the above clause, and the 
 clause continued as in Form 51 or 52. 
 
 But there does not appear to be any particular advantage in referring to the 
 preliminary agreement in the memorandum, excejit Avhere it is difficult so to 
 express the objects as certainly to enable the company to carry out the proposed 
 agreement without any question of ultra vires.
 
 FORMS. 
 
 85 
 
 To enter into and carry into effect (either with or withont niodifica- Form 51. 
 tion) an a^Teemt which has already been prepared, and is expressed ^i . 7~ 
 to be made between [the said] A. of the one part, and the co of the a contract. 
 other i)art, a copy whereof has for the ppose of identification been 
 endorsed with the signatures [of B. C. & D., three] of the subscril)ers 
 hereto [or a copy whereof is set forth in the schedule to the articles of 
 association of the co]. 
 
 Where it is desired to mention any preliminary agreement in the memo- 
 randum. Form 51 or 52 will be used, according as Plan I. or II., siqyra, p. 1, is 
 adopted. 
 
 To adopt and carry into effect, either with or without modification, Form 52. 
 
 an agreemt dated the day of , and made between [the sd] ~ T~ 
 
 A. of the one part and X. on behalf of this co, of the other part, a copy contract. 
 Avhereof [as in Form 51]. 
 
 See note to Plan I. supra, p. 1. 
 
 To develop and turn to account any land acquired by or in which the Form 53. 
 CO is interested, and in parlar by laying out and preparing the same ,j,^ ^^^ j^ 
 for building pposes ; constructing, altering, pulling down, decorating, land, 
 maintaining, fitting up and improving Imildings and con\eniences, 
 and by planting, paving, draining, farming, cultivating, letting on 
 building lease or building agreemt, and by advancing money to and 
 entering into contracts and arrangemts of all kinds with builders, 
 tenants, and others. 
 
 The above is not uncommonly inserted where a company is likely to have 
 surplus land. 
 
 To pchase or otherwise acquire any patents, brevets iV invention. Form 54. 
 licences, concessions and the like, conferring any exclusive or non-exchi- ~ ; ~ 
 
 ' . . -IT To purchase 
 
 sive or hmited right to use any invention which may seem capable of patents. 
 being used for any of the pposes of the co, or the acquisition of which 
 may seem calculated directly or indirectly to benefit this co, and to use, 
 exercise, develop, or grant licences in respect of, or otherwise turn to 
 account the ppty and rights so acquired. 
 
 A good many companies insert the above, especially manufacturing com- 
 panies. 
 
 To enter into any arrangemts with any [governmts or] authorities Form 55. 
 [supreme], municipal, local, or otherwise, that may seem conducive to rpg ^^^.^^^ 
 the co's objects or any of them, and to obtain from any such [governmt arrangements 
 or] authority, any rights, privileges, and concessions which the co may Sties' " 
 think it desirable to obtain, and to carry out, exercise, and comply with 
 any such arrangemts, rights, privileges, and concessions. 
 
 This clause is frequently used with more or less modification.
 
 To promote 
 other com- 
 panies, &c. 
 
 g MEMORANDA OF ASSOCIATION. 
 
 Form 56. To promote any other co for the ppose of acquiring all or any of 
 the ppty and liabilities of this co, or of advancing directly or indirectly 
 the objects or interests thereof, and to take, or otherwise acquire, and 
 hold shares in any such co, and to guarantee the paymt of any 
 debentures or other securities issued by any such co. 
 
 The above form, with more or less variation, is frequently used. It is 
 obvious that if the company is to have such power, it must in general be 
 expressly conferred. Where the objects of a discount company were, among 
 other things, stated to be " the making and procuring loans on, and the invest- 
 ing in, securities," it was held that the company had no power to assist in 
 floating another company by taking shares therein. Joint Stock Discount Com- 
 pany V. Brown, 8 Eq. 381. See also International Contract Company's Case, 
 W. N. 1869, 24 ; 17 W. R, 454. 
 
 Form 57. To take, or otherwise acquire, and hold shares in any other co having 
 m . V xT objects altogether or in part similar to those of this co, or carrying on 
 any business capable of being conducted so as directly or indirectly to 
 benefit this co. 
 
 in other 
 companies, 
 
 See note to Form 38. 
 Form 40. 
 
 This form is sometimes used in conjunction with 
 
 Form 58. 
 
 Foreign 
 registration. 
 
 To procure the co to be registered or recognised in any foreign 
 country or place [or in and elsewhere abroad]. 
 
 Where a company intends to carry on business abroad the above is some- 
 times inserted. See also Clause 55, which is more commonly used ; but if a 
 company is expressly authorised to carry on business abroad, it would seem 
 that to procure registration or recognition would clearly be "incidental or 
 conducive." 
 
 As to the position of a company which carries on business in a foreign country, 
 see Lindley, 1484 ; Westlake, 294 ; Bateman v. Lewin, 6 Ap. Cas. 387. 
 
 Form 59. 
 
 To construct 
 works. 
 
 To construct, improve, maintain, work, manage, carry out, or control 
 any roads, ways, tramways, railways, branches or sidings, reservoirs, 
 watercourses, wharves, manufactories, warehouses, electric works, shops, 
 stores, and other works and conveniences which may seem calculated 
 directly or indirectly to advance the co's interests, and contribute to, 
 subsidise, or otherwise assist or take part in any such operations. 
 
 This is very often inserted with appropriate modifications. 
 
 Form 60. To make, accept, indorse, and execute, promissory notes, bills of ex- 
 change, and other negotiable instrumts. 
 
 A company cannot issue negotiable instruments unless it has an express or 
 implied power given to it by the memorandum. An implied power arises where 
 the business of the company is one which cannot, in its ordinary course, be 
 carried on without the issue of such instruments, or where upon a fair con- 
 struction of the memorandum the power appears incidental or conducive to the 
 objects. In re Peruvian Raihvays Co., 2 Ch. 023. 
 
 The power to accept and issue bills and other negotiable instruments is one 
 with which it is generally desired to endow a company, and where the desire 
 
 To accept 
 bills, &c.
 
 FORMS. 87 
 
 exists, it is exi^edient to provide accordingly in the memorandum, at any rate Form 60. 
 
 where the company is not formed for purposes which necessarily imply the ■ 
 
 power. 
 
 The following- are cases in which it has been held that companies had no 
 such power. Bramah v. Roberts, 3 Bing. N. C. 9G3, which was a case of a gas 
 company ; Dickenson v. Valpy, 10 B. & C. 128, in the case of a mining company ; 
 Steele v. Harmer, 14 M. & W. 831, in the case of a cemetei-y company ; Bull v. 
 Morrell, 12 Ad. & E. 745, in the case of a salt and alkali comj^any ; Thompson v. 
 Universal Salvage Co., 1 Ex. G94, in the case of a salvage company ; Bateman v. 
 Mid-Wales Railway Co., L. R. 1 C. P. 499, in the case of a railway company. 
 
 To coustruct, maintain, and alter any buildings, or works, necessary Form 61. 
 or convenient for the pposes of the CO. ZT •, , 
 
 This is very commonly inserted. It is modified, more or less, to suit different 
 companies. See also Form 59. 
 
 To amalgamate with any other co having objects altogether or in part Form 62. 
 
 similar to those of this co. "; , 7. 
 
 Amalgamation. 
 
 "Amalgamation" is not uncommonly made one of the objects, but it is by 
 no means clear what the clause authorises. " To amalgamate" probably autho- 
 rises a company to acquire the business and liabilities of another company. 
 See Pulbrook v. New Civil Service Co., 26 W. R. 11 ; Era Case, 30 L. J. Ch. 137 ; 
 32 L. J. Ch. 207 ; but where it is desired to confer this power, it seems better 
 to do so in express terms. See Form 37. To "amalgamate" would also 
 aTpiiear probably to authorise a sale of the company's business in consideration 
 of shares in the purchasing company. Dougan's Case, 8 Ch. 545 ; Pulbrook v. 
 New Civil Service Co., ubi supra ; Wynne's Case, 8 Ch. 1007 ; Re Financial Corp., 
 28 W. K. 7G0. But it is far better to give this form in express terms, as in 
 Form 39. 
 
 To distribute any of the ppty of the co among the members in specie. Form 63. 
 
 This clause is not uncommonly inserted, and may be found convenient. In To divide 
 the absence of such a clause, either in the memorandum or articles, it is con- ^^^®*^ ^^ 
 ceived that a majority has no power as against a dissentient minority to 
 authorise a distribution of assets, e.g., shares in some other company, in 
 specie, either under the Act of 1877, or in a winding iip. However, the Court 
 might perhaps in a winding up, even in the absence of a clause as above, 
 authorise a distribution in specie. Thus in March v. Martin, which was in 
 effect an action for winding up an unregistered association called the Municipal 
 Trust, Malins, V.-C. (10 June, 1880), sanctioned a sheme for the division of 
 the assets in specie. The assets consisted of municipal bonds and uncollected 
 coupons. 
 
 The Liquidation Act, 1868 (31 & 32 Vict. c. 68), only applied where winding-up 
 proceedings were pending at the passing of the Act. 
 
 Where the above clause is inserted, the articles of association generally con- 
 tain further provisions as to distribution. It would seem that a provision in 
 the articles is sufficient. 
 
 To obtain any provisional order of the Board of Trade or Act of Form 64. 
 
 Parliament for enabling the co to carry any of its objects into effect. 
 
 '^ J J J To obtain 
 
 Such a clause is commonly inserted in the case of water, gas, electric Pi°''^'oniil 
 light, tramway, and fishery companies. Sometimes the words "or for effecting 
 any modification in the company's constitution " are added.
 
 8!S 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 65. jf tliouglit fit to obtain any Act of Parliamt dissolving the co and 
 To obtain reincoi'poratiiig its members as a new co for any of the oljjects specified 
 
 Act of lucor- ill this meinorandum, or for effcctino; any other modification in the co's 
 yoration. ., . o j 
 
 constitution. 
 
 A company, like any other subject, may without special authority apply to 
 Parliament for any purpose ; but the funds of a company cannot be used for 
 the piu'pose of obtaining a parliamentary modification of its constitution unless 
 the memorandum gives the requisite authority. Lindley, 628 ; Ware v. Grand, 
 Junction Waterworks Co., 2 K.. & M. 170 ; Mathias v. Berks Canal Co., W. N. 
 187G, p. 91 ; Caledonian Co. v. Solway, 32 W. E. 101. Hence the importance of 
 inserting a clause as above when an apj^lication is at all probable. 
 
 It is by no means uncommon, where it is desired to procure the incorporation 
 of a company by Special Act, for the promoters, in the first instance to form 
 themselves into a company, under the Act of 18G2, for the desired objects ; and 
 also for the express purpose of applying to Parliament for an Act, dissolving, 
 the company so formed, and estaVjlishing in its place another company for the 
 like objects, but regulated by the " Companies Clauses Consolidation Act, 1845,' 
 and the Acts amending the same. The advantages of this mode of procedure 
 are considerable. If promoters are not incorj^orated, there is room for much 
 dispute and litigation as to their rights and liabilities inter se, especially if the 
 application to Parliament is abortive ; but if they are incori)orated, the articles 
 of association, and, if necessary, specific agreements made with the preliminary 
 company, determine all these matters. 
 
 Again, a company incorjjorated by Act of Parliament, is not bound by con- 
 tracts made before its incorporation by its promoters, unless the Act confirms 
 the agreements. But if the promoters have formed themselves into a prelimi- 
 nary company, such company can enter into all necessary contracts, e.g., to 
 purchase land, to pay compensation, to engage officers, and so forth, and all 
 these contracts will become binding on the Parliamentary company, because 
 clauses are always inserted in an Act which dissolves one company and estab- 
 lishes another in its place, transferring the contracts and liabilities of the 
 former to the latter. 
 
 The directors of the preliminary company will be given full powers to take 
 all necessary proceedings, and the company can of coiu-se from time to time 
 alter, vary, and control their powers and proceedings. For epitome of such an 
 Act, see infra. 
 
 This course is not uncommonly adopted when it is desired to vest the under- 
 taking of an established company in a new company, and the transaction 
 requires the authority of Parliament. 
 
 Form 66. 
 
 To acquire the 
 company's 
 own shares. 
 
 To pchase or otherwise acquire on such terms and in such manner as 
 the regulations of the co from time to time provide, any shares in the 
 co's capital. 
 
 Such a clause is sometimes inserted, and from some of the rejjorted cases it 
 would seem to have been considered that a company, if authorized by its memo- 
 randum, might exercise the power without the sanction of the Court. Zulueta's 
 Claim, 5 Ch. Ill ; Land Credit Co. v. Lord Fermoy, 8 Eq. 7 ; 5 Ch. 7G3. 
 
 Nevertheless there is grave reason to doubt wTiether this is so in the case of 
 a company limited by shares. 
 
 It has been repeatedly laid down [see infra, note at end of Form 117], that a 
 company cannot return or pay off capital without the sanction of the Court. 
 Flit croft's case, 21 C. Div. 519 ; Re Alexandra Palace, ibid, 119; Guiness v. Land 
 Coriwration of Ireland, 22 C. Div. 319 ; and though the last mentioned case has 
 left open the question whether express authority in the memorandum would
 
 POEMS. 
 
 89 
 
 abrogate the rule, there seems every probability the question will eventually Form 66. 
 be answered in the negative. 
 
 Having regard to the Companies Act, 1877, whereby power was for the fii'st 
 time given "to pay off capital in excess of the company's wants," it seems clear 
 that the legislature conceived that before that Act there was no such power ; 
 and this circumstance furnishes a legislative interpretation of the prior Acts 
 which is clearly admissible. Maxwell, 23. And see Crum v. Oakbank Co., 8 Ap. 
 Cas. tjo, where Lord Selborne, L.C., said, in reference to another section : "The 
 fact that the legislature thought it necessary in 18(>7, five years after the 
 original Act, to declare it expressly, and to make that power dependent upon 
 authority to be found in the company's regvilations, either as originally made 
 or as altered, is, to say the least, decisive against the suppositions which your 
 lordships ai"e asked by the appellants' counsel to make as to the Act of 18G2. . 
 . . . The appellants say that under this Act of 1862 they can do the very 
 thing which in 1SG7 it was thought necessary to give express power to do." 
 
 " Indeed, looking to the Act 40 & 41 Vict. c. 26 [the Act of 1877], it clearly 
 is against the intention of the legislature that any jjortion of the capital 
 should be returned to the shareholders without the statutory conditions being 
 complied with." Per Jessel, M.E., Flitcroft's case, 21 C. Div. 53.3. Re Dronfield, 
 17 C. Div. 76, appears scarcely consistent with this view, but there would have 
 been an appeal if the funds had not run short. 
 
 It should be box-ne in mind that where a company seeks a quotation for its 
 shares on the London Stock Exchange, its regulations must prohibit the 
 l)urchase of its own shares. See infra at end of " Prospectuses." 
 
 Directors who make an ultra vires purchase of shares are liable to make good 
 the amount. [See Orders, infra, and note at p. 168.] 
 
 [.4 clause of Jouljtful validifi/.^ 
 
 During a period not exceeding years to apply a competent pt Form 67. 
 
 of the capital in paying interest on the paid-up capital for the time 77 ' TT 
 being at a rate not exceeding 5 p. c. p. a. capital. 
 
 Within the last few years several companies have taken express power to pay 
 interest during construction of works or otherwise on capital. The power is 
 generally veiled as far as possible, and is commonly found at the end of a 
 clause. 
 
 Whether such a power is valid has yet to be decided, but it would seem that 
 it is not. It is clear that in the absence of power in the memorandum the 
 payment would be illegal. See Re Alexandra Palace Co., and Guiness v. Land Cor- 
 jaoration of Ireland, ubi supra. And these cases go far to show that its presence 
 would not make the payment legal. [See further, note at p. 168, infra. ^ 
 
 To undertake and execute any trusts the undertaking whereof may Form 68. 
 seem desiraljle, and eitlier gratuitously or otherwise. TrTact^as 
 
 Where the undertaking of trusts is contemplated, power should be taken, 
 unless Form 47 is used and is considered sufficient. 
 
 trustee. 
 
 Objects Clauses. 
 
 1, To carry on the business of life assurance in all its branches, and in Form 69. 
 parlar to grant or effect assm-ances of all kinds for paymt of money Life~assurance 
 by way of a single paymt or by several paymts, or by way of im- and accident. 
 mediate or deferred annuities upon the death of or upon the attaining 
 a given age l)y any person or persons subject or not to such death or
 
 90 MEMORANDA OF ASSOCIATION. 
 
 Form 69. attainmt of a given age happening in the hfetime of any other person or 
 persons, or upon the birth or failure of issue or subject to or upon the 
 happening of any contingency or event dependent upon human hfe, or 
 upon a fixed or certain date irrespective of any such event or contin- 
 gency. 
 
 2. To grant annuities, immediate or deferred, payable between any 
 fixed dates, or contingent as to their commencement or determination 
 upon any event dependent upon human life or the birth or failure of 
 issue or otherwise. 
 
 ?>. To carry on the business of insurance against personal injuries 
 by accident either in connection with life policies or otherwise. 
 
 4. To carry on the business of insurance against loss of health 
 or incapacity from physical causes of any description either alone 
 or in combination with life assurance. 
 
 5. To pchase and deal in reversionary interests, absolute or con- 
 tingent, and estates for life, whether determinable or not, in land or any 
 description of real or personal ppty, including copyhold, lifeholds, and 
 leaseholds in England or elsewhere, and to acquire or extinguish by 
 purchase or surrender any policy or grant issued by the co. 
 
 C. To create or set aside out of the capital or revenue of the co a 
 special fund or special funds, and to give to any class of its policy- 
 holders, annuitants, or creditors any iireferential right over any fund 
 or funds so created, and for such or any other pposes of the co to 
 place any portion of the co's ppty in the names or within the control of 
 any one or more trustee or trustees, or to give to any class of insurers 
 a right to participate in the profits of tlie co or of any branch of its 
 business. 
 
 7. To re-insure all or any of the risks of the co, and to undertake 
 any authorised risks, either direct or by way of re-insurance. 
 
 S. To lend money on such terms as may seem expedient. 
 
 [Add Forms 37 to 42, and 44 io 49 ; also (50, 61, and 68.] 
 
 If the company is to be for life insurance only, clauses 3 and 4 will be omitted ; 
 but it seems expedient in most cases to take power to carry on accident, gua- 
 rantee, and other branches, though the company may not intend at once to 
 exercise the powers. 
 
 Before a company, intending to issue policies of assurance, or to grant 
 annuities upon human life, within the United Kingdom, can be incorporated 
 under the Act of 1862, a deposit of 20,000L must be paid into Court. See 33 & 
 34 Vict. c. 01 ; 34 & 35 Vict. c. 58 ; and 35 & 36 Vict. c. 41. See also Buckley, 
 et seq., where also will be found the rules of the Board of Trade. Owing to 
 these salutary enactments, comparatively few life assurance companies are now 
 formed. Where the 20,000L cannot be found before the formation of the com- 
 pany, the prospectus can be advertised as of an intended company, and it can 
 state that the amount will be dejiosited in due course. As to a colonial 
 company, see Re Colonial Mutual, 30 W. K. 458. 
 
 Form 70. !• '^^ insure ships, vessels, boats, and craft of every description, and 
 
 ~ — : engines, tackle, gear, equipment, stores, freight, earnings, profit, cargo, 
 
 insurance. '^"^^^ other matters and things, against loss or injury by or through perils
 
 FORMS. 91 
 
 of the sea, fire, men-of-war reprisals, and all other perils, accidents, and Form 70. 
 risks, now or at any time hereafter commonly undertaken l)y marine 
 insurers or underwriters; and generally to carry on the business of 
 marine insurance in all its branches, with full power to effect re- 
 insurances and counter-insurances as may seem expedient. 
 [Add Forms 32 to 45, ami r^S, GO, a/id (jl.] 
 
 1. To insure upon the mutual principle against every description of Form 71. 
 marine risk which may be lawfully undertaken, ships, vessels, and craft ^^^^^^i gijjp 
 of all kinds, in which the members of the co are interested as owners, insurance 
 managing-owners, mtgees, agents or otherwise. company. 
 
 2. To pchase, take on lease, hire, or otherwise acquire, any real or 
 personal ppty necessary or convenient for the pposes of the co. 
 
 [Add Forms 42, GO, 61, 48, 49.] 
 
 It was formerly thought that mutual insurance societies were not to be con- 
 sidered as formed with a view to gain, so as to require, if consisting of more 
 than twenty members, to be registered under the Act of 1862. See s. 4 of the 
 Act. Buckley, p. 2 ; Arnould on Marine Insurance, 5th ed., vol. I., p. 152. But 
 in Ex parte Hargrove i^" Co., 10 Ch. 542, Jessel, M.E., decided that a mutual 
 insurance society was within s. 4 of the Act, and not having been registered, 
 was an illegal association. Since this decision, several hundred mutual 
 insurance societies have been registered. Their objects, for the most part, are 
 the insurance of vessels or freight. In most cases only a particular class of 
 vessels is insured, e. g., iron steamships, or vessels of not less than 1000 tons 
 burden, or vessels engaged in a particular trade, e. g., coal trade. 
 
 In most cases these companies are limited by guarantee, but a considerable 
 number are registered as unlimited companies. The articles require very 
 careful treatment, as many of the forms in common use are full of ambiguities, 
 and frequently lead to dispute. See Marine Mutual v. Young, 43 L. T. 443. 
 
 For other cases of illegal associations, see Padstow Total Loss, 20 C. Div. 137 
 (mutual marine) ; Wigjield v. Potter, 45 L. T. G12 (land) ; Jennings v. Hammond, 
 9 Q. B. D. 225 ; Shaw v. Benson, 11 Q. B. D. 563 (loan). As to loan clubs, see 
 Form 97. As to legal though unregistered concerns, see Smith v. Anderson, 
 15 C. Div. 247 ; and Shaw v. Simmons, 12 Q. B. D. 117 ; and Crowther v. Thorley, 
 32 W. E. 330. 
 
 1. To cany on in England and elsewhere the business of a fire, acci- Form 72. 
 dent, guarantee, and general insurance co, and insurance in all its — ] 
 brandies (excepting life assurance), and in parlar to guarantee the ^.^^i 'o'uarautee. 
 fidelity of persons in situations of trust and the due performance of 
 
 any duty, contract, or obligation by any person or persons, to indemnify 
 persons who are or may become sureties for others, to grant or effect 
 assurances against or upon the contingency of death, injury, damage or 
 loss by reason of accidents of any description to human beings, and 
 to grant or effect insurances against or upon the contingency of injury, 
 damage, or loss by reason of accidents of any description to real or 
 personal ppty of any kind. 
 
 2. To grant assurances against loss of or injury to personal luggage 
 or effects of any person or persons travelling by any train, ship, steamer, 
 boat, or otherwise. 
 
 3. To grant assurances against loss of or damage to parcels, goods, 
 and merchandise in transit by land or sea.
 
 92 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 72. 4. To g-raiit insurances against or upon the contingency of injury, 
 damage, or loss occurring to real and personal p])ty, including growinc^ 
 and standing crops, rolling stock, and all other fixed and moveable 
 chattels, caused by or resulting from fire, lightning, explosions, tempests, 
 or the OA'crflow or inundation of water, or from any other accidental 
 cause. 
 
 5. To grant insurances to protect principals and employers, and 
 otherwise to indemnify principals or employers from or against injuiy, 
 damage, or loss by reason of the fraud, theft, robbery, or other miscon- 
 duct of persons in their eni|)loy, or acting on their behalf, and to grant, 
 make, effect, or procure insurances to protect principals and employers, 
 and otherwise to indemnify principals and employers from or against 
 liability by reason of injury, damage, or loss occurring to or caused by 
 agents, servants, or other employes in their employ or acting on their 
 behalf. 
 
 G. To carry on any other businesses (except life assurance) which can 
 be conveniently carried on in connection with the above. 
 
 lAdd Forms ?,! to 49 ; also GO and Gl.] 
 
 Form 73. 
 
 (iuarantee 
 company. 
 
 1. To carry on the business of a guarantee co in all its branches, and, 
 in parlar, to issue policies guaranteeing the fidelity of persons filling- 
 or al)out to fill situations of trust or confidence, and to guarantee the 
 l)ayment of rents, and the performance of contracts of all kinds. 
 
 2. Form- 72, d. G. [Add Forms 36 to 49.] 
 
 Form 74. 
 
 Bank. 
 
 1. To establish and carry on the business of a bank, whereof the head 
 ■ office or place of business shall be in London, with such branches or 
 
 agencies as may from time to time be determined. 
 
 2. To cany on the business of l)anking in all its branches, and, in 
 parlar, to lend money with or without security, and to discount and 
 deal in bills of exchange, promissory notes, drafts and negotiable instru- 
 ments, and in bullion, specie, and coin, and to receive money and 
 valuables on deposit or for safe custody, and to transact any agency 
 business connnonly transacted by bankers. 
 
 3. To hold, maintain, improve, and deal as may seem expedient with 
 any ppty which the co may become entitled to by foreclosure or 
 otherwise, and for the purpose of better realising any security, to 
 pchase the equity of redemption of, or any share or other interest in any 
 ppty upon which or upon any interest in which the co may have a 
 charge. 
 
 [Add Forms 37 /<? 41, and 44 fo 48, and 45, G5, (18.] 
 
 Where a bank is to carry on business in any colony or elsewhere abroad, 
 much wider powers are generally taken, so that it may carry on financial 
 operations of all kinds. 
 
 Form 75. 1. To negotiate loans and to lend money. 
 Financial. -• '^^^ indorse, discount, buy, sell, and deal in bills of exchange, pro-
 
 FORMS. 
 
 93 
 
 niissory notes, bonds, debentures, coupons, and other negotiable instru- Form 75. 
 ments and securities. 
 
 S. To issue on commission, subscribe for, take, acquire, and hold, sell, 
 exchange and deal in shares, stocks, bonds, obligations, or securities 
 of any governnit authority or co. (4) To form, promote, sul)- 
 sidize, and assist cos, syndicates, and partnerships of all kinds. 
 (5) To give any guarantee for the paymt of money or the perform- 
 ance of any obligation or undertaking. (G) To undertake and execute 
 liny trusts. (7) To ac(piire, improve, manage, work, develop, exercise 
 all rights in respect of, lease, mtge, sell, dispose of, turn to account, 
 and otherwise deal with, ppty of all kinds, and in parlar, land, 
 buildings, concessions, patents, business cctncerns and undertakings. 
 
 (8) To enter into any an'angemts with any authorities [^siqjra, p. 80]. 
 
 (9) Generally to , carry on and undertake any business, undertaking, 
 transaction, or operation commonly carried on or undertaken by bankers, 
 capitalists, promoters, financiers, concessionaires, contractors for public 
 and other works, merchants, and any other businesses, &c. [_as in Form 
 
 [Add Forms 47, G4, 55, 58, 05, G8.] 
 
 See also 4 Ch. 460 for objects of financial company, and 17 W. E. 454. 
 
 Within the last few years a great many private companies have been formed 
 for financial objects. In many cases these companies are formed by persons 
 who desire to promote public companies, or even a single public company. Such 
 companies are taking the place of syndicates, and can promote much more 
 effectually. The members of the promoting company do not become promoters 
 of the promoted company ; disclosure is facilitated ; dangers are avoided ; and 
 other benefits accrue from the adoption of this course. 
 
 But a promoter company invist of course act fairly and honestly, or else it 
 will be liable just as any other fraudulent promoter ; and further, if jarofits 
 are fraudulently made by a promoter comj)any, and divided among its members 
 with the knowledge of the fraud, they will be liable to repay. Moreover, if 
 the company by its directors, or other agents, acts fraudulently, such agents 
 will be liable as well as the company, for " all persons concerned in the com- 
 mission of a fraud are to be treated as princij^als ; no party can be jiermitted 
 to excuse himself on the ground that he acted as agent or servant of another." 
 Per Lord Westbury, Culleii v. Thompson's Trustees, 4 Macq. 124 ; Weir v. Barnett, 
 3 Ex. Div. 248. 
 
 1. To construct, execute, carry out, equip, improve, work, develop, Form 76. 
 administer, mana^'e or control, in [the colony of and elsewhere!, ^.TT ', 
 
 ' ^ ' L J J' I'liljlie work 
 
 public works and conveniences of all kinds, which expression in this contractors, 
 memorandum includes railways, tramways, docks, harbours, piers, 
 wharves, canals, reservoirs, embankmts, irrigations, reclamation, im- 
 provemt, sewage, drainage, sanitary, water, gas, electric light, tele- 
 phonic, telegraphic, and power supply, works and hotels, warehouses, 
 markets and public buildings, and all other works or conveniences of 
 public utility. (2) To apply for, pchase, or otherwise acquire any 
 •contracts, decrees, and concessions, for or in relation^ to the construction, 
 execution, carrying out, equipmt, improvemt, managemt, adminis- 
 tration, or control of public works and conveniences, and to undei'-
 
 94 
 
 MEMORANDA OF ASSOCIATION. 
 
 Form 76. take, execute, carry out, dispose of, or otherwise turn to account the 
 " " ~ same. (3) To carry on the Inisiness of miners, metallurgists, builders 
 and contractors, engineers, farmers, graziers, ship-owners, ship-builders, 
 merchants, importers and exporters, and to buy, sell, and deal in ppty of 
 all kinds, and to carry on any other businesses, manufacturing or other- 
 wise, which the co may think calculated directly or indirectly to advance 
 its interests. (4) To pchase or otherwise acquire, issue, re-issue, sell, 
 place, and deal in shares, stocks, bonds, debentures and securities of all 
 kinds, and to give any guarantee or security for the paymt of divi- 
 dends or interest thereon or otherwise in relation thereto. (5) To 
 negotiate loans, to lend money, securities, and other ppty, to dis- 
 count bills and securities, to become sureties and guarantors for any 
 pposes, and generally to carry on business as capitalists, financiers, 
 bankers, and merchants, and any other businesses, &c. \_Form 37 J. 
 [Add Forms 37, 38, 39, 40, 45 to 49 ; also Forms 55, 58, G5, (18.] 
 
 Form 77. 
 
 Colonial loan 
 agency and 
 investment 
 company. 
 
 (1) To invest money at interest on the security of fi'eehold and lease- 
 hold land, stock, stations, wool, cattle, shares, securities, merchandise, 
 
 and other ppty in the colony of or elsewhere, and generally to lend 
 
 and advance money to such persons and upon such terms and subject to 
 such conditions as may seem expedient. (2) To buy, sell, improve, 
 manage, lease, turn to account, dispose of, and deal in land, stock, 
 stations, wool, cattle, shares, securities, merchandise, and other ppty in 
 the sd colony and elsewhere [on the security of which any advances 
 shall have been made by the co] ; and as regards land, to develop the 
 resources thereof by clearing, draining, road-making, farming, grazing, 
 planting, building or improving, mining, settling and constructing 
 public works and conveniences. (3) To construct, execute, carry out, 
 equip, improve, work, administer, manage, or control railways, tram- 
 ways, \_&c., as in Form 7G], markets, parks, churches, chapels, libraries, 
 hospitals, baths, shops, stores, and public and private works of all kinds 
 in New Zealand and elsewhere which may seem calculated directly or 
 indirectly to enhance the value of any ppty in which the co is interested, 
 and generally to carry on any businesses, manufacturing or otherwise, 
 which can be conveniently carried on in connection with any of the co's 
 objects. (4) To establish and subsidize any institutions, associations, 
 clubs, and convcuiences for the benefit of the co's employes, and of any 
 tenants or other persons in whose welfare the co is interested, and to 
 provide for their religious, sanitary, and educational welfare, and to 
 grant money for these pposes or any of them. (5) To act as agents for 
 the investmt, loan, paymt, transmission, and collection of money, and for 
 the pchase, sale, and improvemt, developmt, and mauagemt of ppty, in- 
 cluding business concerns and undertakings, and generally to transact 
 and undertake all kinds of agency business, whether in respect of agri- 
 cultural, commercial, or financial matters. (G) To subscribe for, issue 
 on commission or otherwise, and deal in mtges, bonds, obligations.
 
 FOEMS. 95 
 
 securities, and other invcstmts, and in parlar those charged on or other- ^or m 77. 
 wise in connection with land in the sd colony. (7) To give any 
 guarantee in relation to nitges, loans, investmts, and securities, whether 
 made or effected or acquired through the co's agency or otherwise, and 
 generally to guarantee or become sureties for the performance of any 
 contracts and obligations. (S) To receive money on deposit at interest 
 or otherwise, and to make, draw, accept, indorse, issue, discount, and 
 otherwise deal with promissory notes, bills of exchange, letters of credit, 
 circular notes, and other mercantile instrumts. (9) [Generally to 
 undertake and transact any of the business of bankers, merchants, 
 capitalists, and financiers which may seem conducive to any of these 
 objects.] (10) To act as trustees for the holders of or otherwise in 
 relation to any debentures, bonds, or debenture stock issued or to be 
 issued by any co, and generally to undertake and execute any trusts the 
 undertaking whereof may seem calculated directly or indirectly to benefit 
 this CO. 
 
 [Add Forms 37 to 49 ; also Forms 55, 58, 65.] 
 
 Sometimes the words in brackets in CI. (2) are omitted or altered to " on the 
 security of which the company shall have power to make advances." And in 
 using Form 49, the words, " and so that the word property herein shall be 
 deemed to be used in its most extensive sense," may be inserted. 
 
 Many colonial and foreign loan and investment companies have been esta- 
 blished and worked with great success during the last ten years. Their objects vary 
 considerably, some not taking power to huj and deal in land [sitjn-a. Clauses 2, 
 3, 4], but merely to lend, and act as agents. A large part (say 80 per cent.) 
 of capital is generally left uncalled, and ample funds are raised on debentures. 
 The credit of some of these companies is so good, that they are able to raise 
 lai-ge sums of money on perpetual debentures [infra. Form 220], at 4 per cent. 
 per annum, and the dividends paid are usually very large. 
 
 (1) To raise money by the issue of shares, debentures, debenture porm 78. 
 stock, bonds, and other securities, and to invest the monies so raised or ~T7~ ; 
 
 , . , ... „ ^ ■ 1 • ri. British and 
 
 any pt thereot m the acquisition of any of the investmts hereinaiter foreign imest- 
 specified. (2) To pchase, take, or otherwise acquire, and hold any n^ent. 
 bonds, stocks, obligations, and securities of any governmts, states, 
 dominions, sovereigns, or authorities, supreme, municipal, local or other- 
 wise, and any bonds, debenture stocks, scrip obligations, shares, stocks, 
 or securities of any cos established for the pposes of any railway, tram- 
 way, gas, water, dock, telegraph, or other undertaking of public utility. 
 (3) To sell, exchange, and dispose of any investmts of the co, and to 
 vary the investmts of the co as may seem expedient. (4) To make ad- 
 vances upon, hold in trust, issue, buy, sell, or otherwise acquire or dis- 
 pose of on commission or otherwise, any such in\'estmts as afsd, and to 
 act as agent for any of the above or the like pposes. (5) To take, 
 make, execute, enter into, commence, carry on, prosecute, and defend all 
 steps, contracts, agreemts, negotiations, legal and other proceedings, 
 compromises, arrangemts, and schemes, and to do all other acts, 
 matters, and things which sliall at any time appear conducive or ex-
 
 96 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 78. pedient for the protection of the co as liolders of or interested in any 
 such investmts, or for obtaining pajmt of the monies payalile in respect 
 thereof. 
 
 [AfM Forms 45 to 49 ; (/ho Forms 55, 58, and G5.] 
 
 Investment companies as above are not uncommon, and have been found 
 very attractive. In many cases they are confined to investments of a special 
 class, e. g., foreign and colonial government, municipal, railway, telegraph, &c. 
 The capital is generally raised by the issue of fully paid-up shares ; and not 
 uncommonly the shares are in two classes — preference, carrying, say, a fixed 
 preferential dividend, at 5 per cent, per annum, and ordinary, taking the 
 surplus profits. The principal objects of such companies is " to enable persons 
 who choose to invest their money in this way to avail themselves . of that 
 Avhich I believe to be one of the most certain things in the world, viz., what 
 is called the doctrine of average — that is to say, that if a large number of 
 different independent securities of a hazardous description are held together, 
 the loss upon some will be compensated by the gain upon others, so that a 
 tolerably imiform average rate of interest will be maintained." Per James, L.J., 
 Smith V. Anderson, 15 C. Div. 270. 
 
 Form 79. (1) To carry on [at , and elsewhere, in the county of ], the 
 
 luisiness of an electric light co in all its branches, and in parlar to con- 
 struct, lay down, establish, fix, and carry out all necessary cables, wires, 
 lines, accumulators, lamps and works, and to generate, accumulate, dis- 
 tribute and supply electricity, and to light cities, towns, streets, docks, 
 markets, theatres, buildings, and places both public and private. (2) 
 To carry on the business of electricians, mechanical engineers, suppliers 
 of electricity for the pposes of light, heat, motive power, or otherwise, 
 and manufacturers and dealers in all a]iparatus and things required for 
 or capable of being used in connection with the generative distribution, 
 supply, accumulation, and employmt of electricity. [Add Forms 30 to 
 4f) ; also Forms 53, 54, 55, 58, 59, 64, Go, 68.] 
 
 See the Electric Lighting Act, 1882, 45 & 46 Vict. c. 56, as to provisional 
 orders. 
 
 Electric hglit. 
 
 Form 80. 
 
 Electric 
 
 apparatus 
 
 manufacturers. 
 
 Form 81. 
 
 Waterworks 
 company. 
 
 To carry on the business of manufacturers of, and to Iwy, sell, hire, let 
 and deal in dynamos, lamps, wire cables, insulating materials, accumu- 
 lators, telephones and other apparatus, materials and things required 
 or capable of being used in connection with the generation, distribution, 
 supply, accumulation and employmt of electricity, and generally to 
 carry on the Ijusmess of electricians and mechanical engineers in all 
 these branches. 
 
 [Add Forms as m Form 79.] 
 
 1. To su]ii»ly the town of , in the county of , and the 
 
 neighbourhood thereof, with water, and to carry on the business of a 
 waterworks co in all its branches. 
 
 •1. To sink wells and shafts, and to make, build, and construct, lay 
 down, and maintain reservoirs, waterworks, cisterns, culverts, filter-beds, 
 main and other pipes and appliances, and to execute and do all other 
 works and things necessary or convenient for obtaining, storing, selling.
 
 FOEMS. 97 
 
 delivering, measuriiiir, and distribntint,' water, or otlierwiso for the Form 81. 
 pposes of the co. 
 
 [Add Forms 37 io 41), 5;], r)4, Hf), and 58, as in Form 70.] 
 
 (1) To construct and establish at a dock with patent and other Form 82. 
 
 slips, workshops, buildinfjs, machinery, warehouses, and other conve- ^^~^ 
 niences. (2) To cany on the businesses of propi'ietors of docks, wharves, 
 jetties, piers, warehouses and stores, and of shipowners, shijvbuilders, 
 shipwrij^-hts, engineers, dredgers, tug-owners, wharlingers, warehousemen, 
 connnission agents, merchants, and any other businesses which can bo 
 conveniently carried on in connection with the abo\e. 
 
 \_Add Forms as in Form 70.] 
 
 1. To carry on all or any f)f the following businesses, namely, brewers, Form 83. 
 maltsters, hop merchants, distillers, wine and spirit merchants, licensed lirewery 
 victuallers, manufacturers of and dealers in aerated and mineral waters, 
 hotel keepers, and any other Imsine.sses which can be conveniently 
 carried on liy tlie co in connection with the above or any of them. 2. 
 To buy, sell, and deal in tobacco, tea, coffee, and any other commodities 
 connnonly sold by licensed victuallers, or which may be rcfiuired by any 
 persons dealing -^^ith the co. 
 
 [Add Fortiis as in Form 70.] 
 
 To carry on all or any of the businesses following, namely, cotton Form 84. 
 spinners and doublers, flax, hemp, and jute spinners, linen manufacturers, Cotton 
 flax, hemp, jute, and wool merchants, wool combers, worsted spinners, spinners, 
 woollen spinners, yarn merchants, worsted stuff" manufacturers, bleachers 
 and dyers, and makers of vitriol, bleaching, and dyeing materials, and to 
 ])chase, comb, prepare, spin, dye, and deal in flax, hemp, jute, wool, 
 cotton, silk, and other fibrous substances, and to weave or otherwise 
 manufacture, buy and sell and deal in linen, cloth, and other goods and 
 fal)rics, and to supply jiower. 
 
 [Add Forms as in Form 70.] 
 
 (1). To carry on the business of mechanical engineers, machine and Form 85. 
 
 engineering tool makers, boiler makers, iron founders, brass founders. Mechanical 
 millwrights, metal workers, steel converters, colliery owners, metallur- engineers, 
 gists, and manufacturing chemists, and to buy, sell, manufactm-e, repair, 
 convert, let on hire, and deal in machineiy, rolling stock, iron, steel, 
 metal implements, tools, utensils, and conveniences of all kinds, and 
 [Add Forms as in Form 70.] 
 
 1. To acquire all or any of the following letters patent, namely, &c. Form 86. 
 
 2. To acquire any inventions capable of being used for any of the patents, 
 pposes for which the inventions specified in such letters patent can be 
 
 used, and to acquire any letters patent or concessions of an analogous 
 character whether British or Foreign, granted in respect of any such 
 inventions. 
 
 H
 
 98 
 
 MEMORANDA OF ASSOCIATION. 
 
 Form 86. 
 
 Form 87. 
 
 Hide, skin, 
 and fat. 
 
 Form 88. 
 
 Sttitioners, &c. 
 
 Form 89. 
 
 Newspaper 
 proprietors. 
 
 Form 90. 
 
 Coffee taverns. 
 
 3. To acquire licences to work and use any inventions Avhicli tlie 
 CO is authorised to acquire. 
 
 4. To work, develop, exercise, and jironiote the user of any inventions 
 in which the co is interested, whether as owner, licensee or otherwise, 
 and in parlar l)y carryin<j^ on any businesses which may be conducive 
 thereto, and Ijy granting licences. 
 
 [Add Forms ',',G to 49, ho, r.f), oS, 5!), (JO, (;8.] 
 
 To buy, sell, j^repare for market, manipulate, turn to account and deal 
 " in hides, skins, fat, tallow, grease, oft'al, and other animal products, and 
 
 to establish in the town of a market for the pjjose of conducting 
 
 sales, and to carry on any other. \_Form .3(5.] 
 
 [Add Forms ;J(;, 41 to ■iC, 48, 54.] 
 
 A good many companies with objects as above have been established in dif- 
 ferent parts of the country. The reguh^tions generally provide that no person 
 ehall be a member unless he is a butcher by trade, and that no member shall 
 hold more than a specified number of shares, and tliat a member ceasing to be 
 a butcher must retire, and sometimes that the surj^lus i>rofits shall be divided 
 among the members in proportion to their dealings with the company, Some 
 of these companies have been very successful, especially where all the local 
 butchers join. 
 
 To carry on the businesses of stationers, printers, lithographers, en- 
 gravers, die sinkers, envelope manufacturers, bookbinders, account book 
 manufacturers, machine rulers, numerical printers, card board manufac- 
 turers, railway ticket manufacturers, dealers in parchment, dealers in 
 stamps, agents for the paymt of stamp and other duties, booksellers, 
 publishers, paper manufacturers, and dealers in the materials used in the 
 manufacture of paper, engineers, cabinet makers, and dealers in or 
 manufacturers of any other articles or things of a character similar or 
 analogous to the foregoing, or any of them, or connected therewith. 
 
 [Add Forms 30 to 41), 54, 01, 05, 68.] 
 
 To establish, print, and publish a newspaper or newspapers in , 
 
 and to carry on the business of newspaper proprietors, printers, pub- 
 lishers, and advertising agents. 
 
 [Add Forms 30 to 40, and 53, 54, 08.] 
 
 Such companies are by no means uncommon. The Newspaper Libel and Ee- 
 gistration Act, 1881 (44- & 45 Vict. c. GO, s. IS), declares that the provisions of 
 the Act as to the registration of newspaper proprietors are not to apply to 
 joint stock company registei-ed under the Act of 1802. 
 
 A company may be liable to an action for a libel. Whitfield v. South Eastern 
 By. Co., E. B. & E. 115 ; and see Edwards v. Midland Ry., G Q. B. D. 289, 703. 
 
 1. To establish at coffee taverns, and to carry on there the 
 
 business of refreshmt-house keepers, upon the principle that no intoxi- 
 cating liquors shall be sold by the co, and to provide and work upon 
 the same principle, refreshmt-stalls, carts, and barrows. 
 
 2. To establish libraries, reading-rooms, and other conveniences, and 
 to provide for the recreation and instruction of the co's customers and 
 their fi'iends. 
 
 [Add Forms 30, 30, 41, 42, 44, 48, 01, 08.]
 
 FORMS. 99 
 
 A very large number of coffee taverns or temperance refreshment companies Form 90. 
 have been formed of late. In 1879 and 1880 scarcely a week has passed with- " 
 
 out the formation of more than one. Sometimes the objects are expressed as 
 above, and sometimes clause 2 or the latter part thereof is omitted. Occasion- 
 ally the company takes power "to sell tea, coffee, toVjacco,and other provisions," 
 but it is generally thought better not to take such power as being likely to 
 offend local traders who might otherwise support the company. 
 
 1. To provide at a hall and other suitable rooms, buildings, Form 91. 
 
 and places, and to permit the same or any pt thereof to be used on puij^c hdi. 
 such terms as the co shall think fit, for any pposes, public or private, 
 and in parlar for public meetings, exhibitions, concerts, lectures, dinners, 
 theatrical performances, and other entertainmts, and for reading, 
 writing, and newspaper rooms, libraries, baths, laundries, refreshmt 
 rooms, dressing rooms, shops, l)usiness offices and residences. 2. To 
 furnish the co's ppty with such furniture, im])lemts, machinery, and 
 conveniences as may l)e thought desirable with a view to the sale, 
 letting, or user thereof. 3. To provide gardens, greenhouses, and 
 gi'ounds for recreation and amusemt. 4. To carry on the Ijusiness of 
 an hotel and restaurant proprietor and wine merchant, o. To provide 
 amusemt, entertainmt, and instruction for shareholders of the co and 
 others. 
 
 [A(/d Forms ;-5(;, 38 fo 49, a/id ."io, ."j-t, Gl, G5, (oid 08.] 
 
 (1) To pchase, take on lease, or otherwise acquire, the land, as hereds. Form 92. 
 
 known as the estate, situate, &c. (2) To carrv on the business of Z ^ 
 
 ' ' ^ '' " Race course. 
 
 a race course co in all its branches, and in parlar to lay out and prei)are 
 any lands for the running of horee races, steeple chases, or races of any 
 other kind, and for the drilling or reviewing of troops, and for any other 
 kind of athletic sports, and for playing thereon games of cricket, bowls, 
 golf, curling, lawn tennis, polo, or any other kind of amusemt, recrea- 
 tion, sport, or entertainmt, and to construct grand or other stands, 
 booths, stabling for horses, paddocks, refreshmt rooms, and other erec- 
 tions, buildings, and conveniences, whether of a permanent or temporary 
 nature, which may seem directly or indirectly conducive to the co's 
 objects, and to conduct, hold, and promote race meetings and athletic 
 sports, polo, lawn tennis, and other matclies,'agTicultural, horse, flower, 
 and other shows and exliibitions, and otherwise utilize the co's ppty ant^ 
 rights, and to give and contribute towards prizes, cups, stakes, and other 
 rewards. (?>) To establish any clubs, hotels, or other conveniences in 
 connection with the co's ppty. To carry on the business of hotel 
 keepers, tavern keepers, licensed victuallers, reft-eshmt purveyors, and 
 market gardeners, &c. 
 
 [Add Forms :){) fo 41), and also oS, ."Jo, {'>'>, G8.] 
 
 1. To carry on the business of a co-operative store in all its branches, Form 93. 
 
 and in parlar to buy, sell, manufacture and deal in goods, stores, con- ~ ~~ 
 
 i-Tiiiii 1 Co-operative 
 
 sumable articles, chattels and effects of all kmds, both wholesale and store. 
 
 retail, and to transact every kind of agency business. 
 
 lAdd Forms 37 to 40, and also 54, 5.">, 59, 65, 68.] 
 
 H 2
 
 100 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 94. 
 
 Hotel 
 company. 
 
 Form 95. 
 
 Library, 
 
 Form 96. 
 
 School or 
 college. 
 
 Form 
 
 Loan clul). 
 
 {1) To establish a hotel or liotels at , in the county of , and 
 
 elsewhere, as may be determined. (2) To carry on the laisinesses of 
 liotel, restaurant, tavern, and lodging-house keepers, licensed Aictuallers, 
 wine, beer, and spirit merchants, importers, and brokers of food and 
 foreign and colonial i)roduce of all descriptions, hairdressers, perfumers, 
 jobmasters, livery stable keepers, jiroprietors of l)aths and laundries, 
 tobacco and cigar merchants, agents for railway cos and carriers, 
 theatrical and opera box office jiroprietors, and general agents, and any 
 other business or businesses, &c. [Form 32.] 
 
 [Add Forms 37 to 49, and 53, 55, 65, (18.] 
 
 (1) To establish and maintain in the City of and elsewhere, circu- 
 
 "lating libraries, and also reading and writing rooms, and a reference 
 library, and to furnish the same respectively with books, reviews, maga- 
 zines, newspapers and other publications, including instrumental and 
 vocal music. (2) To carry on the business of booksellers, stationers, 
 publishers, and restaurant proprietors, and to carry on the business of 
 booking seats at theatres and other places of entertainmt. 
 
 [Add Forms 3G to 4!), and 01, G^.'] 
 
 (1) To establish and carry on at a school [or, college] where 
 
 ■ students may obtain on moderate terms a sound [religious], classical, 
 mathematical, and general education of the highest order. (2) To 
 provide for the delivery and holding of lectures, exhibitions, public- 
 meetings, classes and conferences calculated directly or indirectly to 
 advance the cause of education, whether general, professional, or technical.. 
 
 [Add Forms 3(5 to 49 ; also 53 and (iO, G8.] 
 
 A considerable numlDBi' of school and college companies have been incorpo- 
 rated. Sometimes they obtain a licence from the Board of Trade to registcr 
 without the word " Limited." (See supra, p. 78.) 
 
 (1) The accumulation of caj^ital by means of monthly subscrij)tion>i 
 or otherwise from members, and also by l)orrowing money from members 
 or any other persons on such security and on such terms as may from 
 time to time be arranged. (2) To advance or lend any of the afsd 
 capital or other monies of the co for the time being on the security of 
 freeholds, leaseholds, bills of exchange, promissory notes, l)onds, stock- 
 in-trade, chattels, and other ppty, real or personal. (3) To acquire any 
 real and personal ppty which the co may think it desirable to acquire 
 by way of investmt, or with a view to resale or otherwise, and in parlar 
 any freeholds, leaseholds, mtges, shares, and securities. 
 
 [Add Forms A^, Co, 01, 08.] 
 
 A great many loan clubs have been formed within the last year or two. In 
 Nottingham there seems to be a mania for them. In most cases they are 
 formed as unlimited companies with a share capital not of any fixed amount, 
 divided into shares of, say, lOOL, to be paid by monthly instalments. The 
 regulations generally authorize the directors to make general rules as to the 
 payment of entrance fees, loans, repayments, fines, &c., and declare that they
 
 FOEMS. 101 
 
 are to be binding. The common plan is to have a monthly meeting for pay- Form 97. 
 
 ment of subscriptions, and advances are made in accordance with lots drawn, 
 
 provided siifiBcient security is found. Many of these clubs are held at inna or 
 taverns, and are named accordingly, e. g., " The Unicorn Inn Third Thursday 
 Mutual Loan Club." By forming this company with a deed of settlement 
 (infra, " Private Comiianies "), the duty on registration can be avoided, s. 189 
 of the Act. 
 
 (1) To pchuse, take on lease or in exchange, or otherwise acquire Fonii 98. 
 
 any lands and buildings in the county of or elsewhere, and any ]{^„iijjng 
 
 estate or interest in, and any rights connected with, any such lands and estate, 
 buildings. (2) To develop and turn to account any land acquired l)y or 
 in which the co is interested, and in parlar by laying out and preparing 
 the same for building pposes, constructing, altering, pulling down, deco- 
 rating, maintaining, furnishing, fitting up and improving buildings, and 
 by planting, pa\ing, draining, farming, cultivatinu", letting on building 
 lease or building agreemt, and by advancing money to and entering 
 into contracts and arrangenits of all kinds with builders, tenants, and 
 others. (3) To construct, maintain, improve, develo]), work, control 
 and manage any waterworks, gasworks, reservoirs, roads, tramways, 
 electric power, heat and light, supply works, telephone works, hotels, 
 clubs, restaurants, baths, places of worship, places of amusemt, pleasure 
 grounds, parks, gardens, reading rooms, stores, shops, dairies and other 
 works, and comeniences which the co may think, directly or indirectly, 
 conducive to these objects, and to contribute or otherwise assist or 
 take pt in the construction, maintenance, developmt, working, control, 
 and managemt thereof. (4) To carry on all or any of the following 
 businesses, namely, builders and contractors, decorators, merchants, and 
 dealers in stone, sand, lime, l)ricks, timber, hardware, and other building 
 requisites, brick and tile and tcrra-cotta makers, job masters, carriers, 
 licensed victuallers, house agents, and any other businesses which may 
 seem to the co, directly or indirectly, conducive to any of these objects. 
 (5) To lend money, either with or without security, and generally to such 
 persons and upon such terms and conditions as the co may think tit, and 
 in parlar to 23ersons undertaking to Ijuild on or improve any ppty in which 
 the CO is interested, and to tenants, bnilders, and contractors. (G) [^Form- 
 ol.] (7) To undertake and execute any trusts, the undertaking of 
 which may seem to the co desirable. 
 
 lAdd Forms 38 to 40, o.^), (IG.] 
 
 (1) To provide healthy and comfortable dwellings for the industrial Form 99. 
 classes. (2) To pchase, take on lease or in exchange, or otherwise iiuiustrial 
 acquire any lands, buildings, and hereds suitaljle for any of the pposes dwellings, 
 of the CO, and to drain and build on such land, and to lay out and ap- 
 propriate any land for roads, streets, squares, gardens, play and drying 
 grounds, and to improve, adapt, alter, demolish, or otherwise deal with 
 such buildings. (3) To establish, provide, furnish, equip, maintain, 
 subsidise, manage, and control any baths, laundries, washhouses, shojjs, 
 stables, schools, libraries, dispensaries, iuhrmaries, provident societies,
 
 10; 
 
 MEMOEANDA OF ASSOCIATIOX. 
 
 Form 99. chilis and other institutions, works, and conveniences for the henefit of 
 the co's tenants and others. (4) To take up or otherwise ol)tain loans 
 from the Public "Works Commissioners under the Lal)Ouring Classes 
 Dwelling Houses Act, 180(1, or any other Act, and generally to borrow 
 or raise money ujjon such terms and from such persons and in such 
 manner as the co may think fit. 
 [.4.^/^? Forms as in Form 79.] 
 
 Form 100. 
 
 Colonization 
 and laud. 
 
 Form 101. 
 
 Minin< 
 
 (!) To pchase or otherwise accpiire any landed jipty in the State of 
 
 in the United States of America, and in parlar in all or any of the 
 
 lands. (2) To develop the resources of and turn to account the lands, 
 buildings, and rights for the time being of the co in such manner as the 
 CO may think fit, and in parlar l)y clearing, draining, fencing, planting, 
 building, improving, farming, grazing, and jnining, and by promoting 
 immigration, establishing towns, villages, and settlemts. (3) To 
 carry on the business of farmers, graziers, meat and frnit ])reservers, 
 brewers, planters, miners, metallurgists, (puirry owners, brickmakers, 
 ])uilders, contractors for the construction of works, both iniblic or 
 pri^■ate, merchants, importers and exporters, printers, pul»lishers, bankers, 
 ship builders, ship owners, brokers, and any other businesses which may 
 seem calculated, directly or iiulirectly, to develop the co's pjity. (4) 
 To construct, carry out, supjiort, maintain, imiirove, manage, work, 
 operate, control, and superintend railways, tramways, kc. [see Form 89, 
 cl. o], hotels, exchanges, churches, chapels, parks, schools, museums 
 places of recreation, baths, washhouses, and any other works and con- 
 veniences which may seem directly or indirectly conducive to any of 
 these objects, and to contribute to or otherwise aid or take pt in the 
 constniction, carrying out, support, maintenance, improvemt, managemt, 
 working operations, controlling, and superintending the same. (5) To 
 lend money and other ppty, to guarantee the performance of contracts 
 and obligations of all kinds, to act as agents in the managemt, sale, and 
 pchase of ppty, and generally to transact lousiness as capitalists, bankers, 
 and financiers. (G) To carry on and transact any other businesses and 
 operations, manufacturing, commercial, or otherwise, which the co may 
 think directly or indirectly conducive to any of its objects, or capable of 
 being conveniently carried on in connection therewith. 
 
 "lAM Forms ;58 to 49, 54, 05, 58, G5, C«.] 
 
 (]) To pchase, take on lease, or otherwise acquire any mines, mim'ng 
 
 rights, and metalh'ferous land in the county of [o/-, the kingdom 
 
 of ], or elsewhere, and any interest therein, and to explore, work, 
 
 exercise, de\elop, and turn to account tlie same. (2) To crush, win, 
 get, (piarry, smelt, calcin, refine, dress, amalgamate, manii)ulate, and 
 prepare for market ore, metal, and mineral substances of all kinds, and 
 to carry on any other metallurgical operations which may seem condu- 
 cive to any of the co's objects. (3) To buy, sell, manufactui-e, and 
 deal in minerals, i)lant, machinery, implemts, conveniences, lu'ovisions.
 
 POEMS. 103 
 
 and thiii^-s capal)le of l)C'ing used in connection Avith mctallnrgical ^on n 101. 
 operations, or required ))y Avorkmen and otliers cmploj-ed by the co. 
 (4) To construct, carry out, maintain, improve, manage, work, 
 control and superintend any roads, Avays, traniAvays, railways, bridges, 
 reserA-oirs, AA-atercourses, aqueducts, AvharA-es, furnaces, sawmills, crushing 
 works, hydraulic Avorks, electrical Avorks, factories, Avarehouses, ships, 
 and other Avorks and couA-eniences Avhich may seem directly or indirectly 
 conduciA'e to any of the objects of the co, and to contribute to, subsidise, 
 or otherwise aid or take pt in any such operations. 
 [A(Jd Forms oG fo 49, d/id 54, 'jo, (U, G'), 08.] 
 
 1 . To carry on the trades or businesses of iron masters, collieiy pro- Form 102. 
 prietors, coke manufacturers, miners, smelters, engineers, steel con- ^ , ^ . ~ 
 
 J^ ' _ ... ' o J Qoal and iron 
 
 A'crters, and ironfoundcrs, in all their respiA'e branches. company. 
 
 2. To search for, get, Avork, raise, make merchantable, sell, and deal 
 in, iron, coal, ironstone, brick-earth, bricks, and other metals, minerals, 
 and substances, and to manufacture, and sell, patent fuel. 
 
 [AdtJ Forms as in Form 70.] 
 
 (1) To pchase, charter, hire, build, or otherAvise acquire steam aud Form 103. 
 
 other ships or vessels, Avith all equi})mts and furniture, and to employ g,j- ^^.^^^^ 
 the same in the conveyance of passengers, mails, troops, munitions of 
 Avar, liA'e stock, meat, corn, and other produce, and of treasure aud 
 merchandise of all kinds, betAveen such ports in any pt of the world as 
 may seem expedient, and to acquire any postal subsidies. (2) To buy, 
 sell, prepare for market, and deal in coal, timber, Ha'c stock, meat, and 
 other merchandise or produce, (oj T(j carry on the business of mer- 
 chants, carriers by land and Avater, shipoAvners, Avarehousemen, Avarfin- 
 gers, barge owners, lightermen, forwarding agents, underwriters, and 
 insurers of ships, goods, aud other ppty, and ice merchants and 
 refrigerating store keepers. 
 
 lAdd Forms ?>G to 41), 54, 55, 58, Ul, 65, 08.] 
 
 (1) To pchase or otherwise ac([uire the [steam] ship " Strand " \_or a Form 104. 
 
 steamship now in course of construction at and intended to be sin„ie 
 
 called] together Avith all requisite equipmt for the same, and to carry on steamsLip. 
 the business of a steamship proprietor in all its branches. (2) To 
 pchase or otherAvise acquire any other steamship, Init so that the co shall 
 not at any one time own more than one steamship. (?>) To employ, &c. 
 \_sep Form 10;3]. 
 
 \_Add Forms ;j8, 30, 41, 42, 43, 51, 47, 48.] 
 
 The formation of " single ship " companies is making i-apid progress at the 
 chief ports. A well-known Liverpool firm (Messrs. Leyland) were among the 
 first to set the example. In the month of May, ISSO, they transferred eighteen 
 vessels to as many private companies, and since then large numbers of other 
 firms and individuals have followed this example. Not a week now passes 
 without several such conversions, and sometimes a dozen or more are registered 
 the same day. In some cases the capital ij3 divided into sixty-four shares, but
 
 104 
 
 MEMOEANDA OF ASSOCIATION. 
 
 Form 104. ^^^- slmres are frequently adopted. All the shares excejit, perhajDs, a few for 
 
 extra subscribers, are issued to the owner or owners as the consideration for the 
 
 tx'ansfer of the ship. The owner or owners are generally ajipointed manager or 
 managers, and the control of the company is vested in them subject to general 
 meetings of the members. Sometimes directors are appointed. The name is 
 usually framed thus, " The Egeria Steamship Company, Limited," or " The 
 Ship Carmen, Limited." (See supra, p. 32.) It seems j^robable that these 
 private companies for working single shijis will be generally adopted. Their 
 advantages are obvious, inasmuch as they relieve the members from many 
 onerous liabilities in which they might be involved by the negligence, miscon- 
 duct, or improvidence of their servants. 
 
 Even if the law should be modified in this respect, the many other advan- 
 tages of the single ship system will probably lead to its general adoption. 
 
 Inconvenience has in some cases been caused by the objects being too limited, 
 c. (J., after conversions of several ships, it was found that the funds of one com- 
 pany could not, as desired, be lent to another. No ad valorem duty is payable 
 on the conveyance of the ship to the company. 
 
 Form 105. 
 
 American 
 railroad. 
 
 (1) To pcliase or otherwise acquire the wliole or any of the ppty and 
 rii^'hts formerly possessed by the X, Raih'oad Co, Ijiit recently sold under 
 certain decrees and orders of the Circuit Ct of the United States, for 
 
 in a suit, &c., and with a view thereto to enter into an agreemt 
 
 \_Form T)!]. (2) To equip, work, maintain, improve, aud operate the sd 
 railroad and any other railroads and tramways which the co may he 
 possessed of or interested in, or over which it may have running- powers. 
 (3) To construct, pchase, take on lease, or otherwise acquire, any railways 
 or tramways, which may seem capable of being worked in connection 
 with any of the co's lines for the time being, or calculated directly or 
 indirectly to benefit the co, aud to acquire any rights over or in con- 
 nection with any such railways or tramways. (4) To carry on the 
 l)usiness of a telegraph and telephone co in their rcspive branches. 
 (.5) To carry on the business of manufacturers, mechanical engineers, 
 ship owners, shij) builders, carriers by land or water, warehousemen, 
 forwarding agents, and insurance agents against loss or damage to goods 
 by accident or otherwise. (G) \^Add if di'sircd the clauses 1, 2, and 3, of 
 Form 100, and some of the clauses of Form 7G.] (7) To improve, work 
 and facilitate the navigation of any rivers, lakes, canals, and other waters. 
 
 \_Add Forms 3G to 49, 53, 54, 55, 58, 59, and G8 ; i/tserti/i// in 41 ilte 
 ivord " coticessions"'\ 
 
 When a foreign company gets into difficulties, it is not at all uncommon to 
 form an English company to acquire and work the undertaking. In some cases 
 Avhere this has been done the line has been bought w\) in the first instance by a 
 financier Avho subsequently has sold his bargain to the comj^any in consideration of 
 deferred shares. Occasionally it is found desirable to form a local company to 
 work the line, all the shares being held by nominees of the English company. 
 Sometimes the English company is formed in the first place to acquire certain 
 securities of the foreign company, and then to acquire the line by foreclosure. 
 The above line can readily be adai:»ted to a company formed to acquire a con- 
 cession, e. g., "To acquire and undertake a concession granted by the Republic 
 
 of for the construction of a railway from to , and with a view&c, 
 
 and to carry out and perform the works and obligations specified in the said 
 concession with or Avithout modification."
 
 FORMS. 105 
 
 (1) To construct, pchase, lease, or otherwise acquire any tramway Form 106. 
 
 or tramways in the counties of and tlie adjoininji- counties. (2) Xramway. 
 
 To equip, maintain, and work (l)y horse, steam, or other mechanical 
 power.) all tramways belonoing" to the co, or ■which this co may possess 
 a right to run over and work. (;») To carry on the business of carriers 
 of goods and ]iassengers, omnil)us and van pro])rietors and manufacturers 
 of, and dealers in, ti'amway carriages, trucks, locomoti^■e and otlier 
 engines, and other chattels and effects required for the making, main- 
 tenance, equipmt, and working, of tramways. (4) To enter into con- 
 tracts with any j^erson or co, as to interchange of traffic, running 
 powers, joint working, or otherwise which may seem expedient. 
 
 [Add Forms 3(5 fo 41), 0.3, 54, 55, 59, 04, ('>5, 08.] 
 
 Under the Tramwaj-s Act, 1870, (33 & 3-1 Vict. c. 7S) the Board of Trade can 
 make provisional orders in certain cases authorizing the construction of tram- 
 ways. One of the rules of the Board provides that if the promoters requii-e 
 incorporation, they must register themselves under the Companies Act, 1862, 
 and many companies have been registei-ed under this rule. The rules can be 
 obtained from the publishers of this work, and forms of provisional orders will 
 be foiind in the schedule to the Coniiriuatory Acts passed each year. See 
 further Sutton's Tramways Acts. 
 
 (1) To manufacture, sell, and supply light in the town of , and Form 107. 
 
 elsewhere in the parishes of, &c., in the county of , and to carry on ^ ~r 
 
 the business of a gas-works co in all its branches. (2) To deal with, couipanv. 
 manufacture, and render saleable coke, coal-tar, pitch, asphaltum, am- 
 mouiacal liquor and other residual products obtained in the manufac- 
 ture of gas. (0) To construct, manufacture, and maintain works for 
 holding, receiving, and jjurifying gas, and all other buildings and works, 
 meters, pipes, fittings, machinery, apparatus, and appliances convenient 
 or necessary for the jjposes of the co. (4) To manufacture, buy, sell, 
 let on hire, and deal in, stoves, engines, and other apparatus and con- 
 veniences which may seem calculated, directly or indirectly, to promote 
 the consumption of gas. 
 
 [Add Forms as in Form 70.] 
 
 The Gas and Water Works Facilities Act, 1870, enables the Board of Trade 
 in certain cases to make provisional orders, authorizing the construction of gas 
 and water works and the acquisition of land, &c. One of the rules of the Board 
 is that if the promoters desire incorporation they must register themselves 
 under the Companies Act, 1862, and a considerable number of companies have 
 been formed in compliance with this rule. Copies of the rules can be obtained 
 from the publishers of this work, and forms of orders can be found in the 
 schedules to the Confirmatory Acts passed each year. See also the Gas and 
 Water Works Facilities Act, 1870, Amendment Act, 1873, 36 & 37 Vict. c. 89. 
 
 It is now generally thought desu-able to take powers to supply electric light 
 as well as gas. See Form 79. 
 
 To provide, regulate, and maintain, a suitable Ijuilding, room, or Form 108. 
 rooms, for a [ ] exchange, in the city of : to adjust con- 
 
 troversies between its members, to establish just and eipiitable principles 
 
 Exchange.
 
 lOG 
 
 Form 108. in tlie 
 
 MEMORANDA OF ASSOCIATIOX. 
 
 — trade (hereinafter called the trade), to maintain nniformity 
 in rules, regulations, and usages of the trade : to adopt standards of 
 classification in the trade, to acquire, preserve, and disseminate useful 
 information connected with the trade throughout all markets : to 
 decrease the local risks attendant upon the business, and generally to 
 
 promote the trade of the city of ■ , increase its amount and augment 
 
 the facilities with which it may Ijc conducted. (2) To connnunicate 
 with chamhers of commerce, and other mercantile and puldic bodies 
 throughout the world, and concert and jn'omote measures foi' the pro- 
 tection of the trade and ])ersons engaged therein. (;)) To subscribe, to 
 become a member of, subsidize, and co-oi)erate with, any other associa- 
 tion, whether incorporated or not, whose objects arc altogether, or in pt, 
 similar to those of this co, and to procure from and comnmnicate to, any 
 such association such information as may be likely to forward th.e objects 
 of the society. 
 
 [Add Forms 38, 41 io 4!).] 
 
 Coinijare witli Form 107, sui->ra. 
 
 Form 109. To establish a club [of a non-political character] for the accommoda- 
 tion of members of the co and their friends. 
 [Add Forms 41, 42, 44, 40, 4,s, Gl, G8.] 
 
 A club can be formed as a coini:)any limited by shares or by guarantee. The 
 latter is the more -convenient, and the necessary cajiital can be provided out of 
 entrance fees or by way of loan. 
 
 In Graft v. Evans, 8 Q. B. D. 373 ; 2G L. T. 317; S. J. 292, it was held that 
 a h on 'i fide unincorporated club is not bound to take out a licence for the sale 
 of intoxicating liquors on the ground that the members are joint owners of the 
 property, and that where a member takes and pays for goods, the transaction 
 is not a sale, as he is himself part owner of the goods. The members of an 
 incorporatetl club are not joint owners, and it has not been settled whether 
 stich a club requires a licence. In practice it is always assumed that clubs and 
 co-operative stores are not within the Licensing Acts, and this would seem to> 
 be the correct view. See 2G S. J. 292. 
 
 Ohi 
 
 Form 110. 
 
 Club-house. 
 
 Form 111. 
 
 Club(poHtical), 
 
 To provide a club-house and other conveniences for the use of the 
 
 members of the club, and to furnish and maintain the same, and 
 
 to permit the same to be used ))y the members of the sd club either gra- 
 tuitously or upon such terms as shall be agreed on. 
 
 \_Add Forms as in Form llo.] 
 
 (1) To afford to its memVters all tJie usual privileges, advantages, con- 
 veniences, and acconnnodation of a club. (2) To take over the effects 
 and b'abib'ties of the present unincorporated association, known as the 
 
 [Liberal] Club. (:>) To i)romote the cause of [Liberalism], and 
 
 to ])rovide means of social intercourse between persons professing 
 [Liberal] })rincii)Ies. (4) To consider and discuss all questions affecting 
 the interests of the community, or the alteration or administration of 
 the law. (5) To procure the delivery of lectures on political and other
 
 FORMS. 107 
 
 subjects. ((!) To form and maintain a library of pob'tical, liistorical, and Form 111. 
 
 otber literature in . (7) To render voluntary aid to [Liberal] 
 
 candidates in tlie parliamentary, municipal, and other elections in the 
 
 boroughs of , and the counties of . (!^) To peton Parliamt. 
 
 (!)) To jx-hase, hire, or otherwise acquire, for the pposes of the club, 
 any real or personal ppty, and in parlar any lands, buildings, furniture, 
 club and household ett'ects, utensils, Ixjuks, newspapers, periodicals, 
 musical instrumts, fittings, apparatus, ap])liances, conveniences, and 
 accummodatinn, and so far as the law or the license of the Board of Trade 
 may from time to time allow, to sell, demise, let, mtge, or dispose of 
 the same, (lo) To erect, maintain, imi)ro\e, or alter any buildings for 
 the Piloses of the club. (11) To borrow or raise money by the issue of 
 or upon bonds, debentures, bills of exchange, promissory notes, or other 
 obligations or securities of the club, or by mtge or charge of all or any 
 pt of the ppty of the club. (12) To do [Form W]. 
 
 The above is taken from the ineniorandum of a liberal club which was re- 
 cently registered by licence of the Board of Traae without the word "limited." 
 
 (1) To support and protect the character, status, and interest of the Form 112. 
 legal profession generally, and parly of solors practising Avithin a circuit t -n^ society 
 having a radius of twenty-five miles from the Guildhall of the city 
 
 of . (2) To promote honourable practice, to repress malpractice, 
 
 to settle disputed points of practice, and to decide all questions of pro- 
 fessional usage or courtesy between or amongst solors. (:3) To consider 
 all questions affecting the interests of the profession, and to initiate and 
 Avatch over, and if necessary, to peton Parliamt, or promote deputa- 
 tions in relation to general measures affecting the profession, and to 
 procure changes of law or practice, and the jiromotion of improvemts in 
 the princii)les and administration of the law. (4) To acquire by pchase, 
 donation, or otherwise, the library now l)elonging to the society known 
 
 as the Law Society, and to maintain, extend, and inqu'ove such 
 
 library. (.")) To provide rooms and other fiicilities for the holding and 
 conducting of sales of ppty, meetings of creditors, arbitration meetings, 
 and other like matters. (('») To acquire by pchase, taking on lease, or 
 otherwise, lands and buildings, and of all other ppty, real and personal, 
 which the society, for the pposes thereof, may from time to time think 
 proper to acquire, and which may lawfully be held by them, and to re- 
 sell, under-lease or sub-let, surrender, turn to account, or dispose of, 
 such ppty, or any pt thereof, and to erect u])on any such land, any 
 building for the p})oses of the society, and to alter or add to any building- 
 erected upon any such land. (7) To borrow [&c.]. (8) To encourage 
 the study of law by articled clerks of solors, and for that ppose the 
 donation on such terms and conditions as may from time to time be 
 prescribed, of a prize or prizes, or other rcAvards or distinctions. (0) 
 To promote information on legal sul)jects by lectures, discussions, books, 
 correspondence with public bodies and individuals, or otherwise. (10) 
 IFonii 44].
 
 108 
 
 MEMORANDA OF ASSOCIATION. 
 
 Form 112. Taken from a form recently passed by the Board of Trade. This form with. 
 ■~ slit>-ht variation has also been adopted in the case of societies of local accountants. 
 
 Trade protec 
 tion. 
 
 Form 113. !• To protect the members of tlie society against persons whose cha- 
 racter or circes render them unworthy of mercantile credit, and to facili- 
 tate the prompt and economical realisation of the estates of bankrupts 
 and persons making or seeking to make arrangemts vv compositions 
 with their creditors. 
 
 2. To diffuse information as to sound principles of trading, and to 
 impress upon the mercantile community the necessity of maintaining an 
 intimate knowledge of the state of their aiPfairs by periodical investiga- 
 tions and by keeping correct sets of l»usiness books, 
 
 .3. To procure information for members as to the standing and 
 responsibility of parties with Avhom they propose to transact business. 
 
 4. To collect debts for members upon such terms as may ])e deter- 
 mined. 
 
 o. To communicate with Chambers of Commerce and other mercantile 
 and public bodies throughout the United Kingdom, and concert and 
 promote measures for the protection of trade and traders. 
 
 G. To c(jnsider, originate, and sup}K)rt improvemts in the commercial 
 laws. 
 
 7. To subscribe to, become a mendjcr of, and co-opei'ate with any 
 other association, whether incorporated or not, whose ol)jects are 
 altogether or in pt similar to those of this society, and to procure fi-om 
 and communicate to any such association such information as may be 
 likely to forward tlie object of this society. 
 
 [Add Form, lUo, el. b and ('.; Forms ;')S, 4"2, 44. J 
 
 Taken from a form which has been approved by the Board of Trade on several 
 occasions. 
 
 Form 114. 
 
 Chamber of 
 Commerce. 
 
 (1) To promote and protect the home, colonial, and foreign trade and 
 commerce, and the manufactures, of the United Kingdom, and in parlar 
 
 the trade, commerce, and manufactures, of the [borough] of . (2) 
 
 To consider all (piestions connected with such trade, conmierce, and 
 manufactures, (o) To]H*omote or oppose legislative and other measures, 
 affecting such trade, commerce, and manufactures. (4) To collect and 
 circulate statistics, and other information, relating to such trade, com- 
 merce, and manufactures. (5) To act as arbitrator in tlie settlemt of 
 disputes arising out of commercial transactions. ((>) To boi'i'ow any 
 monies required for the pposes of the chamber upon such securities as 
 may be determined. 
 
 {Add Form. 10:^, d. C, and Forms ;)8, 42, 44.] 
 
 Taken from a form i:)assed by the Board of Trade on several occasions. 
 
 Form 115 '^^^^ following is another form lately passed : — 
 
 (1) The promotion of the trade and commerce, and shipjiing and manufac- 
 tures of , and of the home, colonial, and foreit!,-n trades of the United 
 
 Kingdom. (2) The collection and dissemination of statistical and other in- 
 formation relating to trade, commerce, sliipping, and manufactures. (."5) Tlie
 
 FOEMS. 
 
 109 
 
 promoting, supporting, or opposing legislative or other mejisures affecting the Form 115. 
 
 afsd interests. (1) The undertaking, by arbitration and settlemt, of dis- — ■ — — 
 
 putes arising out of trade. (5) The doing of all such other things as may 
 be conducive to the extension of trade, commerce, or manufactures, or inci- 
 dental to the attainmt of the above objects. 
 
 1. To take over the whole or any of the assets and hal)iHties of tlic un- Form 116. 
 
 incorporated association known as the Biiiklers' Society, estahhslied 1884. ^'.T., ; 
 
 *' IJuiIders 
 
 2, lo promote the conson and discussion of all questions affecting- the Institute. 
 
 building trade (which exi^ression in this memorandum includes the trade 
 of builders and of contractors for the execution of public and pri\-ate 
 works, and all ancillary and allied trades, and every branch of any such 
 tradej, and generally to watch over and protect the interests of persons 
 engaged in the building trade. 
 
 ;J. To give the Legislature and public bodies and others facilities of con- 
 ferring with and ascertaining the views of persons engaged in the build- 
 ing trade as regards matters directly or indirectly affecting that trade. 
 
 4. To confer with the lloyal Institute of British Architects, the 
 Metropolitan Board of AYorks, and any other })ublic bodies in regard to 
 all matters affecting the building trade. 
 
 0. To originate and promote improvemts in the law, and to support or 
 oppose alterations therein, and to effect improvemts in administration, 
 and, for the pposes afsd, to peton Parliamt, and take such other ste])s 
 and proceedings as may be deemed expedient. 
 
 (I. T(t diffuse among its members information on all matters affecting 
 the building trade, and to print, publish, issue, and circulate such papers, 
 periodicals, books, circulars, and other literary undertakings as may seem 
 conducive to any of these objects. 
 
 7. To improve and elevate the technical and general knowledge of 
 l)ersons engaged in, or aljout to engage in, the building trade, or in any 
 emi)loyint, manual or otherwise, in connection therewith, and with a view 
 thereto to provide for the delivery of lectures and the holding of classes, 
 and to test liy examination or otherwise the competence of such persons, 
 and to award certificates and distinctions, and to institute and establish 
 scholarships, grants, rewards, and other benefactions. 
 
 5. To promote excellence in the construction of buildings, and jnst 
 and honourable practice in the conduct of business and to suppi-ess 
 malpractice. 
 
 0. To establish, form, and maintain a library and collection of models, 
 designs, drawings, and othe articles of interest in connection with the 
 building trade. 
 
 10. To arrange and j^romote the adoption of equitable fonns of con- 
 tracts and other documts used in the building trade and to encourage 
 the settlemt of disputes by arbitration and to act as or nominate arbitra- 
 tors and umpires on such terms and in such cases as may seem expedient. 
 
 11. To encourage the discovery of and investigate and make known 
 the nature and merits of inventions which may seem capal)le of being- 
 used by persons engaged in the building trade, and to acquire any patents
 
 j-j^Q MEMORANDA OF ASSOCIATIOX. 
 
 Form 116. or licenses relating to any such inveutiuns with a view to the user 
 
 — ~" ~~ thereof by the inembers of the institute and others, either gratuitously or 
 
 npon such terms as may seem expedient. 
 
 12. To establish, subsidise, promote, co-operate with, receive into 
 union, become a member of, act as or appoint trustees, agents, or dele- 
 gates for, control, manage, superintend, lend monetary assistance to, or 
 otherwise assist any associations and institutions, incorporated or not 
 incorporated, with objects altogether or in pt similar to th(jse of the 
 institute and not being a trades union. 
 
 lo. To establish, undertake, superintend, administer, and contribute 
 to any charitable or benevolent fund from whence may be made dona- 
 tions or advances to deserving persons who may be or ha\e been engaged 
 in the building trade, or connected with any jierson engaged therein, 
 and to contribute to or otherwise assist any charitable or benevolent 
 institutions or undertakings. 
 
 14. To undertake and execute any trusts which may seem to the 
 institute conducive to any of its objects. 
 
 IT). To provide facilities for social intercourse between the members of 
 the institute and their friends, and if thought fit, to afford them all or 
 any of the usual privileges, advantages, conveniences, and accommoda- 
 tioji of a club. 
 
 10. To admit any persons (whether ehgibleor not eligible for member- 
 ship) to be associates or honorary members of the institute on such terms, 
 and to confer on them such rights and privileges as may seem expedient. 
 
 17. To borrow any moneys required for the pposes of the institute 
 upon such terms and on such securities as may be determined. 
 
 18. Subject to the provisions of the 21st section of the Cos Act, 1802, 
 to pchase, take, lease, exchange, hire, or otherwise acquire any real and 
 personal ppty, and any rights or privileges necessary or convenient 
 for the pposes of the institute. To construct, alter, and maintain any 
 buildings requn-ed for the pposes of the institute. 
 
 1!). To obtain an Act of Parhamt for the dissolution of the institute 
 and the rc-incor]ioration of its members for any of these objects, and any 
 other Act which may seem conducive to any of these objects. 
 
 20. To sell, im})rove, manage, develop, lease, mtge, dispose of, turn to 
 account, or otherwise deal with all or any jit of the ])pty of the institute. 
 
 21. To invest the moneys of the institute not innuediately required 
 up(»n such securities or otherwise in such manner as inayfrom time to 
 time be determined. 
 
 22. To di) all such other lawful things as are incidental or conducive 
 to the attaimnt of the above ol)jects or any of them. Provided that the 
 institute sliall not impose on its members or sujiport with its funds any 
 regulation which, if an object of the institute, would make it a trade 
 union. 
 
 Taken from a form i^assed by the Board of Trade in 1884.
 
 APiTICLES OF ASSOCIATION, 
 
 INTRODUCTORY NOTES. 
 
 By Section 14^ of the Act it is provitled as f.dlows : — Articles of 
 
 Association. 
 11. The memorandum of association may, in the case of a company limited 
 
 Iby .shares, and shall, in the case of a comimny limited by guarantee or unlimited, 
 be accompanied, when registered, by articles of association signed by the sub- 
 scribers to the memorandum of association, and i^rescribing such regulations 
 for the company as the subscribers to the memorandum of association deem 
 expedient : the articles shall be expressed in separate paragraphs numbered 
 arithmetically : they may adojDt all or any of the j^rovisions contained in the 
 Table marked A. in the first schedule hereto : they shall, in the case of a 
 company, whether limited by guarantee or unlimited, that has a capital divided 
 into shares, state the amount of capital with which the comi^any proposes to 
 be registered ; and in the case of a company whether limited by guarantee or 
 unlimited, that has not a capital divided into shares, state the numh»er of 
 members with which the comjjany proposes to be registered, for the purpose of 
 enabling the registrar to determine the fees payable on registration : in a 
 •company limited by guarantee or unlimited, and having a capital divided into 
 shares, each subscriber shall take one share at the least, and shall MTite 
 •opposite to his name in the memorandum of association the number of shares 
 he takes. 
 
 And Section 1 .j provides that : — Application of 
 
 Table A. 
 15. In the case of a company limited by shares, if the memorandum of 
 
 association is not accompanied by articles of association, or in so far as the 
 articles do not exclude or modify the regulations contained in the Table 
 marked A. in the first schedule hereto, the last-mentioned regulations sliall, 
 so far as the same are apjilicable, be deemed to V>e the regulations of the com- 
 pany, in the same manner and to the same extent as if they had been inserted 
 in ai-ticles of association, and the articles had been duly registered. 
 
 The great majority of companies, formed under tlie Act, are registered 
 as companies hmited hy shares, and it appears from Sections 14 and 15 
 ?il)ove-mentioned, that as regards such companies articles of association 
 may be registered witli the memorandum, Init if not that Talde A. will 
 apply. 
 
 In a considerable number of cases no articles are registered, and In somo cases 
 Talkie A. accordingly applies ; grave inconvenience sometimes results "°„-^^/^"^ j^ 
 from the adoption of this course. 
 
 It is also by no means uncommon to exercise the power contained in 
 Section 15 by registering articles which adojtt Table A. with some 
 modifications. See infra, Form 118, for an example. 
 
 However, it is generally admitted that the additional expense, and it
 
 112 
 
 AETICLES^ OF ASSOCIATION. 
 
 is but small, of preparing and registering a full set of articles is anip!y 
 recompensed l)y the possession of a complete code of regulations. 
 Section 1(> of the Act is as follows : — 
 
 Articles to be IG. The articles of association shall be printed, they shall bear the same 
 printed. stamp as if they were contained in a deed, [i. e., a 10s. stamp], and shall be 
 
 signed by each subscriber in the presence of, and be attested by, one witness 
 at the least, and such attestation shall be a sufficient attestation in Scotland 
 as well as in England and Ireland : when registered, they shall bind the com- 
 pany and the members thereof to the same extent as if each member had 
 subscribed his name and affixed his seal thereto, and there were in such 
 articles contained a covenant on the part of himself, his heirs, executors, and 
 administrators, to conform to all the regulations contained in such articles, 
 subject to the provisions of this Act ; and all monies payable by any member 
 to the comimny, in pursuance of the conditions and regulations of the com- 
 pany, or any of such conditions or regulations, shall be deemed to be a del)t 
 due from siich member to the company, and in England and Ireland to be in. 
 the nature of a specialty debt. 
 
 Effect of reg 
 tration. 
 
 Contributories. 
 
 Alteration of 
 articles. 
 
 Usual clauses. 
 
 Ai-ticles cannot 
 authorise any 
 thing ultra 
 vires. 
 
 Coiu't will 
 seek to recon- 
 cile memoran- 
 dum and 
 ai'ticles. 
 
 As to aiijjoint- 
 ment of 
 officers liy 
 articles. 
 
 Members 
 entitled to 
 copy of 
 articles. 
 
 Copies of 
 
 As to the efPect of registering the memorandum and articles, and of 
 the issue hj the registrar of the certificate of incorporation, see sif/ira, 
 p. O-I. 
 
 As to the liability of present and past members to contribute in t!ie 
 winding np, see Lindley, l.'UiO, of scq. : Buckley, 28, ct scq. 
 
 As to the alteration of the articles hj special resolution, sec infra, 
 " Resolutions." 
 
 As to the clauses usually inserted in articles, see infra, p. 11 o, cf scq. 
 
 It is well settled tliat if the articles as originally framed, or as altered 
 by special resolution, ])urport to authorise an act ])rohibited by law or 
 otherwise ^iJIra vires the company, or inconsistent with the memoramlum, 
 they are 7^>-« ianto void. A^^hhunj, dr., Co. \. Riclin, li. R. 7 H. L. 
 671 ; Hope. V. Iniernaiional Financial Soc, 4 C. Diw o27 : Dent's Case,. 
 8 Ch. 7<)S; Guiness v. Land Corporaiion of Ireland, 22 (-. Div. o41». 
 
 But the Court will, if possible, support the articles, for the rule of con- 
 struction is that if contemporaneous documents can be read in two ways, 
 in one of which they appear consistent, and in the other inconsistent, 
 the former construction will be preferred. Per Jessel, M. R., Phmnir 
 Bessemer Co.'s Case, 44 L. J. N. S, 083; Andersons Case, 7 Ch. Div. 
 75. Nevertheless this rule must be ai^plied Avith great caution, e.g., the 
 articles cannot be permitted to (jualify or vary what the Act requires to 
 be stated in the memorandum. Guiness v. Land Corporation of Ireland r 
 vlri supra. 
 
 Articles of association very commonly contain clauses ])urporting ti> 
 ap])oint or authorising the appointment of officers — e.fi., managers, secre- 
 taries, solicitors, engineers, and others, upon certain terms as to remunera- 
 tion. See as to such clauses, svpra, p. Go. 
 
 As to each member being entitled to a co])y of the memorandum and 
 articles, see svpra, \\. 72. 
 
 "Where articles of association have been registered, a copy of every 
 special resolution for the time being in force ivS to be annexed to or em-
 
 INTRODUCTOEY NOTES. 113 
 
 bodied in every copy of the articles of association that may be issued special 
 after the passing of such special resolution. Section 54 of the Act. resolutions. 
 
 Where no articles of association have been registered, a copy of any 
 special resolution is to be forwarded, in print, to any member requesting 
 the same, on payment of one shilling, or such less sum as the com- 
 pany may direct. Ihid. 
 
 If any company makes default in complying with the provisions of the Penalty. 
 above section, it incurs a penalty not exceeding 1/. for each copy in re- 
 spect of which such default is made ; and every director or manager 
 of the company who knowingly and wilfully authorises or permits such 
 default incurs a like penalty. Ibid. 
 
 Before registration the articles must be stamped with a 10s. deed Stamps, 
 stamp, and with a 5s. companies' registration stamp. See siqmi, p. 73.
 
 AETICLES OF ASSOCIATION, 
 
 Form 117. 
 
 Articles of a 
 company 
 limited by 
 shares. 
 
 The Companies Acts, 1802 to 1880. 
 
 Articles of Association of The Co, Limited. 
 
 This form of articles includes most of the clauses usiially inserted, and it 
 will be found that it can with little difficulty he so altered as to suit the 
 cii'cumstances of the great majority of the companies from tinae to time in 
 course of formation. Various special clauses will be found, infra, Form 120, 
 et seq., some of which may be occasionally required. 
 
 extraordinary 
 resolution. 
 
 Preliminary. 
 
 Some persons insert the words " It is agreed as follows " at the beginning of 
 the articles, but the words are superfluous. By s. 16 of the Act (supra, p. 93), 
 each member is bound by an implied covenant to conform to the regulations. 
 
 Interpretation. 1. In these presents, unless there be something in the subject or con- 
 text inconsistent therewith, — 
 Special and " Special resolution " and " extraordinary resolution " have the 
 
 meanings assigned thereto respectively by the Companies Act, 18G2 
 
 (ss. 51 and 129). 
 The office. " The office " means the registered office for the time being of 
 
 the CO. 
 The register. " The register " means the register of members to be kept pursuant to 
 
 Section 25 of the Companies Act, 1862. 
 Month. " Month " means calendar month. 
 
 In writing. " In Writing " means written or printed, or partly written and partly 
 
 printed. 
 
 Words importing the singular number only include the plural number, 
 
 and vice versa. 
 
 Words importing the masculine gender only include the feminine 
 
 gender. 
 
 Words importing persons include corporations. 
 
 Some persons insert a long list of words and expressions in the interpretation 
 clause, but the practice is not to be commended. Probably several of the above 
 might be omitted, e. g., " special " and " extraordinary " resolution, but they are 
 retained because directors and members are not always very familiar with the 
 Act, and it may therefore be convenient to refer thereto. But there seems 
 little use in saying that " the directors " means the " directors for the time 
 being," that " member " means member of the company, and so forth. See 
 also note to Clause 107 of this form.
 
 FOEMS. 115 
 
 2. Tlie regulations contd in Table A. [in the first schedule to the Form 117. 
 Companies Act, 1862] shall not apply to the co. Table A not^to 
 
 apply. 
 See supra, p. Ill, s. 15 of the Act. 
 
 3. The directors shall forthwith, in the name and on behalf of the co, Seal to be 
 
 enter into an agreemt with in the terms of the draft a copy atrreement. 
 
 whereof has, for the ppose of identification, been endorsed with the sig- 
 natures of A., B., and C, three of the subscribers hto, and shall carry the 
 
 sd agreemt into effect, with full power, nevertheless, fi'om time to time to 
 agree to any modification of the terms of such agreemt, cither before or 
 after the execution thereof. 
 
 The above form will be used where plan II., supra, p. 1, is adopted, and the 
 agreement is not mentioned in the memorandum of association. Where it is 
 so mentioned the clause mil run thus : " The directors shall forthwith affix 
 the seal to the agreement mentioned in paragraph of Clause 3 of the company's 
 memorandum of association, and shall carry, &c." 
 
 Where the agreement is made with a trustee for the company before its 
 incorporation, the clause will run thus : — 
 
 " The directors shall [or may] forthwith adopt on behalf of the company an 
 
 agreement dated the day of , and made between of the one part, 
 
 and on behalf of this company of the other part, and shall [or may] carry 
 
 the same into effect, with full power, nevertheless, at any time and from time 
 to time, to agree to any modification thereof." 
 
 Sometimes the words " a copy whereof is set forth in the schedule hereto," 
 are introduced, but it is not generally advisable to set out the agreement in 
 the schedule. The object of setting out the agreement in a schedvde, is to 
 give the members the fullest notice of its contents, for every member is taken 
 to know the articles of association. Ernest v. Nicholls, 6 H. L. Cas. 401 ; Royal 
 British Bank r. Turquancl, 6 E. &B.437 ; Ex parte Williams, 2Eq. 218 ; Griffith 
 V. Paget, 6 C. D. 517. But as a measure of precaution it is not now uncommon 
 to add to a clause as above (3) the words, " And every member shall be deemed 
 to have notice of the contents of the said agreement, and to sanction the 
 same." See further, p. 242. 
 
 It used formerly to be the custom to insert in the articles a clause declaring 
 that " the company hereby adopts the agreement, &c." But there are grave 
 doubts as to the operation of such a clause, and it is now but rarely inserted. 
 It probably does no more than authorise the directors to adopt the agreement. 
 It is clear that such a clause cannot bind the company in favo.;r, e.g., of the 
 vendor. Eley v. Positive Government Co., 1 Ex. Div. 88. 
 
 Nor can the clause operate as a ratification of the agreement, " because it 
 has been decided, and, as it appears to me, well decided, that there cannot in 
 law be an effective ratification of a contract which could not have been binding 
 on the ratifier at the time it was made, because the ratifier was not then in 
 existence. It does not follow from that that acts may not be done by the 
 company after its formation which make a new contract to the same effect 
 as the old one, but that stands on a different principle." Per Jessel, M.E., 
 16 C. Div. 125; and see Pritchard's case, 8 Ch. 960; and infra. Form 139. It 
 is obviously undesirable to leave matters on sach a footing ; for it is difficult 
 to say at what stage a company becomes bound by acting on the agreement ; 
 and, accordingly, even where an adoption clause is inserted, it is expedient to 
 execute an adopting contract as above. Form 12. 
 
 Sometimes words are added to the clause, as follows : — 
 
 " And it is expressly declared that the validity of the said agreement shall 
 not be impeached," &c. [as in Form 8]. 
 
 I 2
 
 116 
 
 ARTICLES OF ASSOCIATION. 
 
 Porm 117. 4. The directors shall not employ the funds of the co or any pt 
 thereof in the pchase of shares of the co. 
 
 Company's 
 .shares not to 
 be pnrcha.sed 
 
 Where a company desires to obtain the quotation of its shares in the official 
 list of the London Stock Exchange^ such a clause as above should be inserted 
 in order to comply with the rules. See infra, at end of " Prospectuses," for 
 extract from rules. 
 
 When bnsiness 5. The husincss of the CO may be commenced as soon after the incor- 
 commeiiced. poration of the co as the directors shall think fit, and notwithstanding 
 that pt only of the shares may have been allotted. 
 
 This clause is often inserted, but is not necessary, for a company may 
 unqviestionably commence business, and the directors may make calls before 
 the whole capital has been issued. McDougall v. Jersey Imperial Hotel Co., 
 2 H. & M. 528 ; Ornamental Woodwork Co. v. Brown, 11 W. E. 600 ; 9 Jur. N. S. 
 579. The above clause, however, is not useless, siiice it may prevent mis- 
 understanding. 
 
 The terms of the prospectus may, however, give a member an equity to 
 restrain the comi^any from commencing business with a totally insufficient 
 capital. Elder v. Neiv Zealand Land Co., W. N. 1874, 85 ; 30 L. T. 285 ; Sharj)ley 
 V. Louth and East Coast Ry. Co., 2 Ch. Div. 663. But see Be Scottish Petroleum 
 Co., 23 C. Div. 422. 
 
 Allotment of 
 shares. 
 
 (!. The shares shall be under the control of the directors, who may 
 allot or otherwise dispose of the same to such persons, on such terms 
 and conditions, and at such times as the directors think fit, [subject, 
 nevertheless, to the stipulations contd in the sd agrecmt with reference 
 to the shares to be allotted in psuance thereof.] 
 
 The words in brackets will be omitted if no agreement is referred to in the 
 articles. 
 
 Section 25 of the Act of 1867 must be borne in mind ; see sujna, p. 10, et seq. 
 As to whether shares can be issued at a discount, see supra, p. 39 ; as to bonus 
 shares, supra, p. 40. Sometimes the words " and either at a discount, premium 
 or otherwise," are inserted. 
 
 7. The CO may make arrangemts on the issue of shares for a dif- 
 ference between the holders of such shares in the amount of calls to be 
 pd and the time of paymt of such calls. 
 
 Section 24 of the Act of 1867 provides that nothing in the Act of 1862 shall 
 be deemed to prevent any company under that Act, if authorised by its regu- 
 lations, as originally framed, or as altered by special resolution, from doing, 
 inter alia, the above. It seems, therefore, expedient to take the power. 
 
 InstalmentB on ^- If> ^J ^^^ conditions of allotmt of any share, the whole or pt 
 
 shares to be of the amount thereof shall be payable by instalmts, every such instahnt 
 July paid. ' j 
 
 shall, when due, be pd to the co by the holder of the share. 
 
 It is very common now to issue shares on terms that fixed sums shall be paid 
 on application and allotment, and the balance or a considerable part thereof 
 by instalments at short intei'vals. It is therefore expedient to insert such a 
 clause as above. By the joint effect of the above clause, and of section 16 of 
 the Act, each instalment will be a debt due to the company, su2}ra, p. 112. In 
 England and Ireland it will be a specialty, and, therefore, recoverable within 
 twenty years. 3 & 4 Will. IV. c. 42, s. 3. Compare Cork and Bandon Ey. Co., 
 
 Shares may be 
 issued siibject 
 to ditferent 
 conditions as 
 to calls, &c.
 
 FORMS. 
 
 117 
 
 13 C. B. 826. See su;pra, p. 112 ; and see, as to section 70 of tte Act, infra, Poi^ 117 
 
 p. 120. Unless such a clause is inserted, the instahnents do not constitute a — ■ 
 
 statutory debt. Care should also be taken that the forfeiture clauses extend 
 to unpaid instalments. See clause 21, infra. 
 
 9. The joint holders of a share shall be severally as well as j cm tly Liability of 
 
 liable for the paymt of uU iiistabuts and calls due in respect of such ^"°'"* ^'^^^^^'^ 
 , ■'■of share. 
 
 share. 
 
 This clause is not uncommon. It appears to be very reasonable, and affords 
 an additional security to the company. It extends only to instalments payable 
 and calls made during the joint lives. 
 
 10. The CO shall be entled to treat the registered holder of any share Trusts not 
 as the absolute o\yi\cv thereof, and accordingly shall not be bound recognised, 
 to recognise any equitable or other claim to or interest in such share on 
 
 the pt of any other person save as herein provided. 
 
 The above clause is sometimes inserted and may be usefiil. It goes f\u-ther 
 than section 30 of the Act, " No notice of any trust, expressed, implied, or 
 constructive, shall be entered on the register, or be receivable by the registrar 
 in the case of companies under this Act, and registered in England or Ireland." 
 It would seem to enable the company to treat the registered holder of a share 
 as the absolute o'svner thereof notwithstanding any notice of equities. But the 
 clause cannot prevent a person equitably interested in shares, from procuring 
 the intervention of the Court to pi-otect his rights. Binney v. Ince Hall Coal 
 Co.,35 L. J. Ch. 363 ; Taylor v. Midland Ry. Co., 8 W. E.401. Nor can the clause 
 prevent an equitable mortgagee from taking the shares out of the reputed 
 o-\vnership of the mortgagor, by giving notice to the company. Ex parte Stewart, 
 13 W. K. 356 ; 11 Jur. N. S. 25 ; In re Jackson, 12 Eq. 354. And so, too, as 
 between competing equitable assignees of shares, he who first gives notice to 
 the company -will, cceteris paribus, be preferred, notwithstanding the above 
 clause. 
 
 As to what a company ought to do where it receives notice not to register a 
 transfer, see Tahiti Cotton Co., 17 Eq. 280: Ex parte Roll, W. N. 187G, 91. 
 
 The company need not register a person as a member imder a transfer of 
 shares of which they have any doubt, but can leave the transferee to come to 
 the Court and makeout his title. Per Mellor, J., Bahia ^ San Francisco Ry., 
 L. E. 3 Q. B. 597. 
 
 Under section 30 of the Act, a trustee who is the registered holder of shares 
 is personally liable. Chapman v. Barber's case, 3 Eq. 361 ; Hemming v. Maddick, 
 7 Ch. 395. And the same rule applies to Scotch companies even where the 
 trustees are registered " as trustees." Muir v. City of Glasgow Bank, 4 App. 
 Cas. 337. But a trustee is entitled to be indemnified by his cestui que trust. 
 Hemming v. Maddick, uhi supra ; Buckley, 81. 
 
 Ceetificates. 
 
 11. The certificates of title to shares shall be issued under the seal of Certificates, 
 the CO, and signed by two directors, and countersigned by the secretary 
 
 or some other person appointed by the directors. 
 
 As to the serious responsibility incurred by a company in issuing certificates, 
 see infra, " Certificates," where also will be found forms of certificates. 
 
 12. Every member shall be entled to one certificate for the shares Members' 
 
 right to.
 
 ]18 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. registered iu his name, or to several certificates, each for a pt of such 
 shares. Every certificate of shares shall specify the number of the 
 share in respect of which it is issued and the amount pd up thereon. 
 
 13. If any certificate be worn out or defaced, then, upon production 
 thereof to the directors, they may order the same to be cancelled, and 
 may issue a new certificate in lieu thereof ; and if any certificate be lost 
 or destroyed, then, upon proof thereof to the satisfon of the directors, 
 and on such indemnity as the directors deem adequate being given, a 
 new certificate in lieu thereof shall be given to the party entled to such 
 lost or destroyed certificate. 
 
 The company incurs a serious responsibility by issuing a new certificate, 
 unless the old one is cancelled ; and it ought not to be done except on very 
 satisfactory proof of loss or destruction, or on a satisfactory indemnity being 
 given. See further, infra, " Certificates." 
 
 As to issue of 
 new certificate 
 in place of 
 one defaced, 
 lost, or 
 destroyed. 
 
 Fee. 
 
 To which of 
 joint-holders 
 certificate to 
 he issued. 
 
 Calls. 
 
 14. The sum of [one shilling], or such smaller sum as the directors 
 may determine, shall be pd to the co for every certificate issued. 
 
 Whether the above clause should be used or the following one is a matter for 
 consideration. Both are common, but there seems no particular reason why 
 the original members should get certificates gratis. It is, however, usually 
 so provided where the company is formed to effect a reconstruction or an amal- 
 gamation ; and promoters sometimes rec^uire the insex'tion of a clause as to issue 
 of certificates gratis. 
 
 The following is another form : — 
 
 Every person to whom shares (in the original capital) shall be allotted shall 
 be entitled, gratis, to one certificate in respect of each share allotted to him ; 
 but for every other certificate there shall be paid to the comi)any such sum, not 
 exceeding one shilling, as the directors may from time to time determine. 
 
 15. The certificates of shares registered in the names of two or more 
 persons shall be delivered to the person first named on the register. 
 
 Calls. 
 
 10. The directors may, from time to time, make such calls as they 
 think fit upon the members in respect of all monies unpd on the shares 
 held by them respi^•ely, and not by the conditions of allotmt thereof 
 made payable at fixed times, and each member shall pay the amount of 
 every call so made on him to the persons and at the times and places 
 appointed by the directors. A call may be made payable by instalmts. 
 
 Every call or instalment under the above clause becomes a debt, for which 
 the company can sue. See siq^ra, note to Clause 8. 
 
 As to an action against a member for calls or other moneys, see infra, note to 
 Clause 19a. 
 
 It is, perhaps, needless to say that a call made by persons not duly ajjpointed 
 directors is void. Hoivbeach Coal Co. v. Teag^ie, 5 H. & N. 151 ; 29 L. J. Ex. 137; 
 8 W. R. 264. So, too, it will be a valid defence, in an action for calls, that the 
 directors who purported to make the call were not duly qualified. The Iron- 
 ship, ^c, Co. V. Blunt, 3 C. P. 484. See also Sharp v. Datves, 2 Q. B. Div. 26. 
 
 But s. 67 of the Act and a clause like 112, in/ro, may make an act of directors 
 done before discovery of undue appointment or disqualification valid.
 
 FOEMS. 119 
 
 A minute of tlie resolution making a call ought to be made, for there i3 some Form 117. 
 
 question whether the call can otherwise be proved. Cornivall Mining Co. v. -— 
 
 Bennett, 5 H. & N. 4.23 ; 29 L. J. Ex. 157. But the resolution need not specify 
 when, where, and to whom the call shall be paid. These particulars may be 
 fixed by subsequent resolution. Johnsonv.Lyttle's Iron Agency, 5 C. Div.687. See 
 further, as to calls, Buckley, 401, et seq. It would seem that even without 
 express authority[a call may certainly be made payable by instalments. ^?)i6er- 
 gate By. Co. v. Norcliffe, G Ex. 629 ; Lawrence v. Wynn, 5 M. & W. 355. 
 
 17. A call shall be deemed to have been made at the time when the When call 
 resolution of the directors authorising such call was passed. havTbeen 
 
 This clause, which appears in Table A., is inserted in order to get rid of any °^*"®- 
 doubt as to whether the call is " made," when the resolution is passed, or when 
 notice of it is given to the members. Shaiv v. Bowley, 16 M. & W. 810. See 
 Clauses 31 & 33, Infra, in connection with which the question is sometimes 
 material. 
 
 [\la. Unless the co in general meeting shall othenvise determine, no Eestrictions 
 
 call, in respect of the shares in the original capital, shall exceed 1, onpo^'er to 
 
 per share, or be made payable withm months after the last pre- 
 ceding call was payable.] 
 
 The above clause is sometimes used, hwi it is generally considered better to 
 leave the directors free to exercise their discretion. The prospectus not un- 
 commonly states that it is not intended to make calls beyond a certain amount, 
 but such a statement of intention is not binding on the company ; and it was 
 held in one case that an action would lie, though the shares were applied for on 
 the faith of a prospectus which stated that "No further calls are contem- 
 plated." Accidental Insurance Co. v. Davis, 15 L. T. 182. Prinul facie a pay- 
 ment to be made on the allotment of a share is not a call. Croshey v. Banlc of 
 Wales, 4 Giff. 314. 
 
 18. Fourteen days' notice of any call shall be given specifying the Notice of call. 
 time and place of paymt, and to whom such call shall be pd. 
 
 It is always expedient to allow a reasonable time for payment of a call. If 
 money is urgently required, the directors should raise it temporarily on deben- 
 tures or mortgage, or otherwise, so as to allow sufficient time for the members 
 to pay up. Where so many "clear days' notice " is to be given, the day of 
 giving the notice and the day on which the call is to be paid should not be 
 counted. Watson v. Bales, 23 Beav. 294. If a call is made payable by instal- 
 ments, the notice ought, it would seem, to be given the prescribed number of 
 days before the time fixed for the payment of the first instalment. Notice 
 must be given in accordance with the regulations of the company. Watson v. 
 Bales, ubi supra. And see CI. 150, infra. 
 
 19. If the sum payable in respect of any call, or instalmt, be not pd When interest 
 on or before the day appointed for paymt thereof, the holder for the °ns[ainien^t 
 time being of the share in respect of which the call shall have been payable. 
 made, or the instalmt shall be due, shall pay interest for the same, at the 
 
 rate of 107. p. c. p. a., from the day appointed for the paymt thereof to 
 the time of the actual paymt. 
 
 What the rate of interest should be is a matter for consideration. Sometimes 
 25 per cent, is specified. See Stocken's case, 3 Ch. 412. 
 
 It appears that such a clause does not apply to calls made by the liquidators 
 of a company. In re Welsh Flannel and Tweed Co., 20 Eq. 367.
 
 120 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. The duty of the directors, when a call is made, is to compel every shareholder 
 
 to pay to the company the amount due from him in respect of that call ; and 
 
 they are guilty of a breach of their diity if they do not take all reasonable 
 means for enforcing that payment. Spademan v. Evans, L. R. 3 H. L. 186. 
 
 Evidence in 
 action for call. 
 
 Payment of 
 calls in 
 advance. 
 
 [19«. On the trial or hearing of any action for the recovery of any 
 money due for any call it shall be sufficient to prove that the name of 
 the member sued is entered in the register of members of the co as the 
 holder, or one of the holders, of the shares in respect of which such debt 
 accrued; that the resolution making the call is duly recorded in the 
 minute book ; and that notice of such call was duly given to the member 
 sued, in psuance of these presents ; and it shall not be necessary to prove 
 the appointmt of the directors who made such call, nor any other 
 matters whatsoever, but the proof of the matters afsd shall be conclusive 
 evidence of the debt.] 
 
 This clause is sometimes inserted; it is not contained in Table A. The pro- 
 visions of the Act are generally deemed sufficient. They are as follows : Section 
 70 provides that, " In any action or suit brought by the company against any 
 member 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 the com- 
 jDany, and is indebted to the company in respect of a call made or other moneys 
 due, whereby an action or suit hath accrued to the company." Under Section 
 37, the production of the register is sufficient primd, facie evidence of member- 
 ship ; and a minute of the resolution making the call, signed as required by 
 Section 07 of the Act, is sufficient prinul facie evidence of the call having been 
 duly made, and the meeting duly held, and of the due appointment of the 
 directors. 
 
 Notwithstanding the terms of the above clause, there is no doubt that the 
 defendant would be entitled to show that he was not a member. It would, 
 however, seem that as against a member the clause would render the duly 
 recorded resolution of a call conclusive. t5ee and consider Cornwall, 8^c., Co. 
 V. Bennett, 5 H & N. 423 ; 29 L. J. Ex. 157 ; and Roney's case, 4 D. J. & S. 12 W. 
 E. 815, 994. 
 
 20. The directors may, if they think fit, receive from any member 
 willing to advance the same all or any pt of the money due upon the 
 shares held by him beyond the sums actually called for, and upon the 
 moneys so pd in advance, or so much thereof as from time to time 
 exceeds the amount of the calls then made upon the shares in respect of 
 which such advance has been made, the co may pay interest at such rate 
 as the member paying such sum in advance and the directors agree 
 upon. 
 
 As to the position in the winding up of persons who have paid in advance, see 
 Maude's case, 6 Ch. 51, and notes to CI. 152, infra. 
 
 The power to receive in advance is a trust for the benefit of the company. 
 Hence, where directors paid up in advance their own shares, and on the same 
 day appropriated the amount in payment of their fees, for which there were, at 
 the time, as they knew, no other available assets, it was held that the transac- 
 tion not being bonilfide, the directors remained liable on their shares. Sykes' 
 case, 13 Eq. 255. See also Gilbert's case, 5 Ch. 559 ; In re Wincham Shipbuilding 
 Co., 9 C. Div. 322 ; and compare with Liverpool Guarantee Co., 30 W. E. 378 ; 4G 
 L. T. 54.
 
 FORMS. 121 
 
 It has not been settled whether under this clause [Table A., 01.7] interest can Form 117. 
 
 be paid irrespective of profits. According to Guiness v. Land Corporation of 
 
 Ireland, 22 C. Div. 3i9, it would seem not. And at any rate if the bargain is 
 not honCb fide, but is. designed to enable the company to pay dividend out of 
 capital, it will be ultra vires. In Fisher y.]HuII ^ Barnsley Ry. Co., before Jessel, 
 M. R., 4 Mar. 1881, shareholders had paid in advance, and it was alleged that 
 they were entitled to be paid interest though the company was not making any 
 profits, but the M. E., in granting an injunction, said : "I can see that there 
 may be questions of bona fides involved, which may or may not affect the right 
 of the company to pay the interest, and therefore I reserve this point for de- 
 cision on a future occasion." 
 
 Forfeiture axd Lien. 
 
 21. Tf any member fail to pay any call or instalmt on or before the If call or 
 day appointed for the paymt of the same, the directors may at any time p'^jj notice"^ 
 thereafter during- such time as the call or instalmt remains unpd, serve a may be given, 
 notice on such member requiring him to pay the same, together with 
 
 any interest that may have accrued, and all expenses that may have been 
 incurred by the co, by reason of such non-paymt. 
 
 The power of forfeiture is a most valuable one for enforcing the payment of 
 calls and instalments. But it is to be treated as strictissimi juris, and accord- 
 ingly any irregularity in the procediu-e will invalidate the forfeiture. Hart v. 
 Clark, 6 H. L. Cas. 633 ; The Garden Gully, ^c, Co. and McLister, 1 App. Cas. 
 39 ; Johnson v. Lyttle's Iron Agency, 5 C. Div. 687 ; Goulton v. London Archi- 
 tectural Co., W. N. 1877, lil ; Stuhhs v. Lister, 1 Y. & C. 81. See Form 327, 
 infra. 
 
 The power is a trust to be exercised for the benefit of the company, and, if it 
 is used for the purpose of enabling members to escape from their liabilities, the 
 transaction cannot stand. In re Esparto Trading Co., 12 C. Div. 191. A power 
 to forfeit may probably be inserted by special resolution. Baiukins v. Antrobus, 
 17 C. D. 615. 
 
 22. The notice shall name a day (not being less than fourteen days Form of notice. 
 from the date of the notice), and a place, or places, on and at which such 
 
 call or instalmt and such interest and expenses as afsd are to be pd. 
 The notice shall also state that in the event of non-paymt at or before the 
 time and at the place appointed, the shares in respect of which the call 
 was made or instalmt is payable, will be liable to be forfeited. 
 
 23. If the requisitions of any such notice as afsd are not complied if notice not 
 with, any shares, in respect of which such notice has been given, may, comphed with 
 
 '*''■' , o 7 J ^ snares may be 
 
 at any time thereafter, before paymt of all calls or instalmts, interest and forfeited, 
 expenses, due in respect thereof, be forfeited by a resolution of the 
 directors to that effect. Such forfeiture shall include all dividends declared 
 in respect of the forfeited shares, and not actually pd before the forfeiture. 
 
 The forfeiture may be held valid although this clause has not been strictly 
 observed. Woolaston's case, 4 De G. & J. 437 ; Knight's case, 2 Ch. 321. 
 
 Of coiirse the directors are not bound to exercise the power of forfeiture. 
 Rigg's case, 1 Eq. 309. 
 
 [23rt. "When any shares shall have been so forfeited, notice of the Notice after 
 resolution shall be given to the member in whose name it stood prior to *°'^^^^*"^^-
 
 122 
 
 AETIOLES OF ASSOCIATION. 
 
 Form 117. the forfeiture, and an entry of the forfeiture, with the date thereof, shall 
 ~ forthwith be made in the register.] 
 
 This clause is sometimes inserted, and it seems reasonable in order that the 
 member may have an opi^ortunity of getting the forfeiture annulled under 
 Clause 37. It does not follow that the failure to give the notice invalidates the 
 forfeiture. Webster's case, 32 L. J. Ch. 135. 
 
 Forfeited share 94. Any share SO forfeited shall be deemed to be the ppty of the co, 
 property of '^^^^ ^'^^ directors may sell, re-allot, and otherwise dispose of the same in 
 company. such manner as they think fit. 
 
 Power to annul 
 forfeiture. 
 
 Arrears to be 
 paid notwith- 
 standing for- 
 feiture. 
 
 Effect of 
 forfeiture. 
 
 Company's 
 lien on shares. 
 
 This clause is almost always inserted. 
 
 25. The directors may, at any time before any share so forfeited shall 
 have been sold, re-allotted, or otherwise disposed of, annul the forfeiture 
 thereof upon such conditions as they think fit. 
 
 2G. i\.ny member whose shares have been forfeited shall, notwith- 
 standing, be liable to pay, and shall forthwith pay to the co all calls, in- 
 stalmts, interest, and expenses, owing upon or in respect of such shares 
 at the time of the foi'fciture, together with interest thereon, from the 
 time of forfeiture until paymt, at [5] p. c. p. a., and the directors may 
 enforce the paymt thereof if they think fit. 
 
 In the absence of such a clause as above, it appears that the forfeiture would 
 be taken to preclude the company from suing for calls. Stocken's case, 3 Ch. 
 412. From the same case it appears that the liability under this clause must 
 be treated as a new one, binding under s. IG of the Act, (see sujn-a, note to 
 Clause 8,) and not as a preservation of the liability existing at the time of for- 
 feiture. It is necessary therefore to prescribe the rate of interest, since the 
 provision in Clause 19 will not apply. Stochen's case, ubi supra. 
 
 [20f/. The forfeiture of a share shall involve the extinction of all 
 interest in, and also of all claims and demands against the co in respect 
 of the share, and all other rights incident to the share except only such 
 of those rights as by these articles are expressly saved.] 
 
 Although the above clause is sometimes inserted, it appears to be of little or 
 no value. In substance it merely provides for that which is otherwise provided 
 for, namely, that a forfeited share shall be deemed to be the property of the 
 company. If strictly construed, it would deprive a future holder of the share of 
 the right of voting and of receiving dividends, &c. See Stocken's case, 3 Ch.412. 
 
 In Creyke's case, 5 Ch. 63, it was contended that the forfeiture of shares in a 
 company whose articles contained such a clause freed the forfeiting member 
 from liability even as a past member ; but it was held that this was not so. 
 
 27. The co shall have a first and paramount lien upon all the shares 
 registered in the name of each member (whether solely or jointly with 
 others), for his debts, liabilities, and engagemts, solely, or jointly, with 
 any other person, to or with the co, whether the period for the paymt, 
 fulfilmt, or discharge thereof shall have actually anived or not. And 
 such lien shall extend to all dividends from time to time declared in 
 respect of such shfires.
 
 rOEMS. 123 
 
 It is usual expressly to give a company a lien as above. It is possible tbat a Form 117. 
 lien might be implied though not expressly given, Lindley, 70G ; but this jdos- 
 sibility is not relied on in practice. See Pinicett v. Wright, 2 Ha. 120 ; 12 CI. 
 & Fin. 764. Probably a lien on the shares gives a lien on the dividends 
 without express mention. Hague v. Danderson, 2 Ex. 741. 
 
 As to the above clause, see In re Stockton, ^'c, Co., 2 Ch. Div. 101 ; In re 
 Lewis, G Ch. 818 ; Lindley, G81 ; Buckley, 413. 
 
 28. For the ppose of enforcing such h'on, the directors may sell the As to enforcing 
 shares subject thereto, in such manner as they think fit ; hut no sale ^'^" '-"^ '*"■^^• 
 shall be made until such period as afsd shall have arrived, and mitil 
 
 notice in Avriting of the intention to sell shall have been served on such 
 member, his exs or ads, and default shall have been made by him or 
 them in the paymt, fulfilmt, or discharge of such debts, liabilities, or en- 
 gagemts for seven days after such notice. 
 
 The lien is of much greater value if it can be enforced in a summary manner 
 by sale of the share subject to it. Table A. (Clause 10), does not confer on the 
 company a power of sale. The restriction contained in the latter part of the 
 above clause has only recently come into use, but it seems only fair and 
 equitable. See observations of Jessel, M. E., In re StocMon, S^c, Co., ubi supra. 
 As to meaning of word "default," Williams v. Stern, 5 Q. B. D. 409. Where 
 there is a lien but no power of sale, an action is necessary to effect a sale. New 
 London Sf Brazilian Bank v. Brocklebank, 21 C. Div. 302 ; 30 W. E.. 422. 
 
 29. The net proceeds of any such sale shall be apphed in or towards Application of 
 satisfon of the debts, liabilities, or engagemts, and the residue (if any) pd Proceeds of 
 to such member, his exs, ads, or assigns. 
 
 30. Upon any sale after forfeiture or for enforcing a lien in purported Vahdity of 
 exercise of the powers hinbefore given, the directors may cause the ^^^^^ "^'^6^' 
 
 ... cii clauses 24 
 
 pchaser s name to be entered m the register m respect oi the snares or and 28. 
 
 stock sold, and the pchaser shall not be bound to see to the regularity 
 
 of the proceedings, or to the applicon of the pchase-money, and 
 
 after his name has been entered in the register, the validity of the 
 
 sale shall not be impeached by any person, and the remedy of any person 
 
 aggrieved by the sale shall be in damages only and against tlie co 
 
 exclusively. 
 
 Compare this Clause with Clause 22 of Table A., which, however, only applies 
 to a sale on forfeiture. 
 
 Transfer axd Transmission of Shares. 
 
 By s. 22 of the Act, shares are to be " capable of being transferred in manner 
 provided by the regulations of the company." Hence, it is necessary to provide 
 for transfers ; but it is well settled that, save so far as restricted by the articles, 
 the right of transfer is absolute. It would not be within the province of this 
 work to enter into a consideration of the numerous cases relating to transfer, 
 but the following may be mentioned : Weston's case, 4 Ch. 20. According to 'Weston's case, 
 the principles laid dovra in this case, the articles are not to be looked at to see 
 whether they give a right to transfer, for the statute gives that, but whether 
 they restrict the right. See also De Pass's case, 4 D. G. & J. 544. Moreover, 
 if the articles restrict the right in a specified case, then the maxim " expressio 
 unius est exclusio alterius " applies. Weston's case, ubi siq^ra. So where there
 
 124 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. ^'^'^^ po-wer to clecline to register a transfer made by a member indebted to the 
 
 company, or, in case of shares not fully paid np, to a transferee of whom the 
 
 directors did not approve, it was held that a holder of fully paid-up shares, 
 not indebted to the company, might distribute his shares among a number 
 of nominees, although his object was to secure to himself the maximum of 
 voting power at a pending meeting of the company, contrary to the spirit of 
 the regulations of the company. In re Stranton Steel and Iron Co., 16 Eq. 559 ; 
 and Pender v. Lushington, 6 C. D. 70. See also Cannon v. Trash, 20 Eq. 675. 
 Again, the Stockton MalleaUe Iron Co. (2 Ch. Div. 101), was empowered to 
 decline to register any transfer of shares whilst the member making the 
 transfer was indebted to the company on any account whatever. The company 
 were indorsees of a bill accepted by a member, but not yet payable. On the 
 construction of the articles, it was held that indebted meant indebted in 
 respect of a debt due and jmyable, and consequently that the member had a 
 right to transfer, notwithstanding that the company held his acceptance. See 
 also 3Ioffattv. Farquhar, 7 C. D. 591; and Buckley, pp. 22, 408. 
 
 Where a company is threatened with insolvency, it may be the duty of the 
 exec\itive to refuse to register transfers. Alex. Mitchell's case, 4 App. Cas. 
 567 ; Nelson Mitchell v. City of Glasgow Bank, 4 App. Cas. 624. But see contra 
 Re Taurine Co., 25 C. Div. 118 ; 32 W. E. 129 ; 49 L. T. 514, contra. 
 
 Execution of ?>!• The instrumt of transfer of any share shall be signed both by the 
 transfer, &c. transferor and transferee, and the transferor shall be deemed to remain 
 
 the holder of snch share until the name of the transferee is entered in 
 
 the register in respect thereof. 
 
 See Table A. (Clause 8). The object of requiring the transferee to execute 
 the transfer, is to fix him with an agreement to take the shares, and thereby 
 secure him as a member ; for by s. 23 of the Act, an agreement to become a 
 member, constitutes membership. See hanger's case, 37 L. J. Ch. 292 ; W. N. 
 1868, 8 ; and Burnes v. Pennell, 2 H. L. Cas. 497 ; Be Tcmrine Co., ubi s^lpra. 
 
 The main object of the latter part of the clause is to give effect to the pro- 
 visions as to calls, so that a member, upon whom a call has been made, shall 
 not be able to avoid forfeiture by a transfer. 
 
 As between transferor and transferee there is an implied contract by the 
 latter to indemnify the former against all liability in respect of the shares 
 during the time that the transferee holds them. Kellock v. Enthoven, L. E. 
 9 Q. B. 241. 
 
 Form of 32. Thc instrumt of transfer of any share shall be in writing in the 
 
 transfer. following form, or as near thereto as circes will admit : — 
 
 I, A. B., of , in conson of the sum of pounds pd to me by 
 
 C. D., of , hereinafter called the sd transferee, do hby transfer to 
 
 the sd transferee the share [or shares] numbered , standing in my 
 
 name in the books of The Co, Limtd, to hold unto thc sd transferee, 
 
 his exs, ads, and assigns, subject to the several conditions on which 
 [I] held the same immediately before the execution hereof : and I, the 
 sd transferee, do hby agree to take the sd [share or shares] subject to 
 the conditions afsd. As witness our hands, thc day of . 
 
 Tt is generally expedient to use this form. It differs slightly from the form 
 given in Table A. ; but it is in general use, and can be purchased at stationers' 
 and elsewhere. Sometimes the articles require a transfer to be by deed; but 
 this requisition causes inconveniences, and secures no benefit. Where the 
 transfer may be by instrument in writing as above, the shareholder may sign a 
 blank transfer, and hand it over to a purchaser or mortgagee, with authority
 
 FOEMS. 125 
 
 for the holder of it for the time being to fill in the name of a transferee, and such Form 117. 
 
 a transfer when filled up can be sent in for registration, and no objection can be 
 
 raised by the company to its validity. Ex parte Sargent, 17 Eq. 273 ; Tees Bottle 
 Co., 33 L. T. 834. But where a deed is required, this convenient plan is not 
 properly available ; for a deed executed in blank is inoperative. Nevertheless, 
 such are the exigencies of business, that even where a deed is required, the plan 
 is frequently adopted, in the expectation thj),t the company will not notice or take 
 advantage of the irregularity. It seems, however, desirable to make this 
 regulation accord with the general practice. 
 
 It appears from the decision of the Coiu't of Appeal in France v. Clark, 19 Feb.^ 
 188-i (see Addenda), that though the delivery to a mortgagee of a certificate of 
 title and blank transfer may give him an implied right to insert his own name, 
 the right does not pass to his assigns. 
 
 3;]. The directors may decline to register any transfer of shares or In what cases 
 stock upon which the co has a lieu : and in the case of shares not fully •^l^'^ctors may 
 
 ■^ *' dechne to 
 
 pd up, may refuse to register a transfer [to a transferee of whom they register 
 do not approve]. transfer. 
 
 Or the words in brackets may be omitted, and the following substitiited : 
 " Without assigning any reason thei-efor." 
 
 From what has been said in the note preceding Clause 31, it appears that if 
 the right of transfer is to be restricted, express provisions must be inserted in 
 the articles for the purpose. It is not found in practice that a clause as above 
 affects the marketable value of the shares ; for it is always assumed that the 
 transfer will be passed, and, of course, it generally is. If, however, the com- 
 pany has a lien, the clause enables it to preserve the same ; and this is often 
 a matter of importance. It is expedient, as above, to make the clause ajiply 
 to any case where the company has a lien, and not merely, as is often done, to 
 the case of a member who is " indebted" to the company. See In re Stockton 
 Malleable Iron Co., 2 Ch. Div. 101 ; and see also supra, note to Clause 27. As 
 to Clause 10 of Table A., see Ex parte Stringer, 9 Q. B. D. 436. 
 
 It is generally thought sufficient, in addition to pi-oviding for the preserva- 
 tion of the lien, to give the directors power to decline to register a transfer of 
 shares, not f'ally paid up, to a transferee of whom they do not approve. If the 
 company gets into difficulties, this will enable the directors to prevent the intro- 
 duction of insolvent members. Where such a discretion is given, the directors 
 will not, if acting bona fide, be compelled to give their reasons for refusing to 
 register a transfer. If they exercise their power capriciously or wantonly, it 
 must be alleged and proved ; the Court will then interfere, but not otherwise. Ex 
 parte Penney, 8 Ch. 452. " I cannot," said James, L.J., in this case, "conceive 
 that any director would choose to accept office, or exercise the power entrusted 
 to him, if he were liable to be called upon to say what the particular reasons 
 were, or the particular motive was, which influenced him in coming to the con- 
 clusion that any person was not eligible as a shareholder. ... I am of opinion 
 that we cannot sit as a Court of Appeal from the conclusion which the directors 
 have arrived at, if we are satisfied that the directors have done that which alone 
 they could be compelled by mandamus to do, to take the matter into their 
 consideration." So in Puckle's case, Jessel, M.E., said that where the articles 
 aiithorised the directors to refuse to register a transfer, "if they were of 
 opinion that the transferee was not a responsible person," there was no appeal 
 from their decision. L. J., Notes of Cases, 1875, 19. 
 
 If they refuse, they are not under any obligation to send notice of their 
 refusal to the transferor. Custard's case, 8 Eq. 438. 
 
 It has not been settled what an absolute discretion, vested in the directors, 
 as to the registration of a transfer, warrants. See, however, Moffatt v. Farquhar, 
 7 C. D. 591. Restrictions on transfer are strictly construed. In re Bentham 
 Mills Spinning Co., 11 C. Div. 900.
 
 126 AETICLES OF ASSOCIATION. 
 
 Form 117. [i^Sa. No transfer shall be made to an infant or person of unsound 
 
 No transfer to mind.] 
 
 ' ' The above is now commonly inserted. Even apart from such a clause, a 
 
 company cannot be compelled to accept an infant transferee ; and, if shares 
 be transferred to an infant, the company may, on discovering the infancy, 
 decline to confirm the transfer, and upon motion under s. 35 of the Act, can 
 procure the rectification of the i-egister by restoring the name of the transferor. 
 Symon's case, 5 Ch. 301. The principle is that a man who execiites a transfer 
 remains liable, unless and until there is on the list a transferee who is legally 
 liable to the company. If, however, the company has knowingly acquiesced, it 
 will he bound. Parson's case, 8 Eq. G5G. And so also if it has allowed the 
 infant to transfer his shares. Gooch's case, 8 Ch. 26G. 
 
 As to married women, see the Married Women's Property Act, 1882 (45 & 4G 
 Vict. c. 75). 
 
 This Act places a married woman's transferee in the same position as if she 
 were sole. But, unless satisfactory evidence of separate estate is produced, 
 the directors might properly (where they have a discretion) refuse to register 
 a transfer to a married woman of shares involving any liability. See proviso 
 at end of s. 7 of the said Act. 
 
 Transfer to be 34. Every iustrumt of transfer shall be left at the office for registra- 
 an?l etidCTce ^^*^'^^' accompanied by the certificate of the shares to ])e transferred, and 
 of title given, such other evidence as the co may require to prove the title of the 
 transferor, or his right to transfer the shares. 
 
 This clause is expedient by reason of the liabilities which the company incurs 
 if it issues a certificate of shares in pursuance of a forged transfer. See further, 
 infra, " Certificates." 
 
 The utmost caution ought to be used in regard to registration of transfers. 
 It is very common to give notice to the transferor of the presentation of the 
 transfer before it is registered. In re Bahia, ^c, Co., 3 L. E. Q. B. 584. 
 
 A clause has of late found its way into a good many articles, providing, inter 
 alia, that the directors shall not be bound to inquire into the authenticity of 
 any transfer ; but such a clause seems inexpedient ; and where a quotation on 
 the Stock Exchange is desired, the Committee of the London Stock Exchange 
 always require the clause, if contained in the articles, to be struck out by special 
 resolution. 
 
 When trans- [34^/. All instrumts of transfer which shall be res-istered shall be 
 
 Id's to nC 
 
 retained. retained by the co, but any iustrumt of transfer which the directors may 
 
 decline to register shall be returned to the person depositing the same.] 
 The above is sometimes used. 
 
 ^ee on ^-55_ X fee not exceeding 2s. Gd. may be charged for each transfer, and 
 
 shall, if required by the directors, be pd before the registration thereof. 
 When transfer 30. The transfer books may be closed during such time as the dircc- 
 c'losed."'^ '° tors think fit, not exceeding in the whole thirty days in each year. 
 
 Table A. in lieu of the above provides (Claiise 11) : — 
 
 "The transfer books shall be closed during the foiirteen days immediately 
 preceding the ordinary general meeting in each year.' 
 
 By Section 33 of the Act it is provided that any company may, upon giving 
 notice by advertisement in some newspaper circulating in the district in which 
 the registered office of the company is situated, close the register of members 
 for any time or times not exceeding in the whole thirty days in each year.
 
 FOEMS. 127 
 
 37. The cxs or ads of a deceased member (not being one of several Form 117. 
 joint holders) shall be the only persons recognised by the co as having Transmission ^ 
 any title to the shares or stock registered in the name of such meml)er, of registered 
 and in case of the death of any one or more of the joint holders of any ^^'*''^^- 
 registered shares or registered stock, the survivors shall be the only ^.j^j 
 persons recognised by the co as having any title to or interest in such 
 
 shares or stock. 
 
 The first paragraph of this clause is generally inserted, in order that the 
 company may not be involved in questions of administration, but may look to 
 their legal personal representatives only. 
 
 38. Any guardian of any infant member, and any committee of a ^^ t° transfer 
 lunatic member, and any person becoming entled to shares in con- infants, 
 sequence of the death, bankruptcy [or liquidon], of any member, upon l^matics, &c. 
 producing such evidence that he sustains the character in respect of 
 
 which he proposes to act under this clause, or of his title, as the directors 
 think sufficient, may, subject to the regulations as to transfers, hinbefore 
 contd, transfer such shares to himself or any other person. This clause 
 is hereinafter referred to as " the transmission clause." 
 
 This clause, with more or less variation, is a common one. It is generally 
 expedient, if possible, to secure a living responsible member in the place of a 
 deceased member or one iinder disability. Of course if any person, under this 
 clause, becomes a member, he is personally liable on the shares, but this does 
 not affect the equities subsisting between him and the infant, lunatic, or other 
 member in whose place he stands. 
 
 Even apart from this clause, the personal representatives of a deceased 
 member can transfer, for s. 24 of the Act of 1862 provides that any transfer of 
 the share or other interest of a deceased member made by his personal repre- 
 sentative shall, notwithstanding such personal representative may not himself 
 be a member, be of the same validity as if he had been a member at the time 
 ■of the execution of the instrument of transfer. Until transfer under this 
 power, or until the personal rei^resentative personally accepts the shares, the 
 estate of the deceased member is alone liable. See Baird's case, 5 Ch. 725. 
 
 So long as the share of a deceased member remains standing in his name, his 
 representatives do not become members of the company in respect thereof, but 
 so soon as the representatives are registered as the holders, they become per- 
 sonally liable thereon, and the company has nothing more to do with the de- 
 ceased member. Sometimes the regulations empower the representatives to 
 ■elect to be registered or to transfer ; but it is desirable to require the execution 
 of a transfer as above in order to preserve a formal record of the transaction. 
 Some companies have been in the habit, so soon as probate or letters of admin- 
 istration are produced, of registei'ing the representatives as the holders of the 
 shares, but this is not regular in the absence of a " distinct and intelligent re- 
 quest on the part of the executors." Per Lord Cairns, L. C, Buchan's case, 4 
 Ap. Cas. 588. As to survivoi'ship, see Hills' case, 20 Eq. 595. 
 
 By s. 50 (3) of the Bankruptcy Act, 1883 (16 & 47 Vict. c. 52), when any part of 
 the property of the bankrupt consists of shares transferable in the books of any 
 company, the trustee may exercise the right to transfer the property to the sanae 
 extent as the bankrupt might have exercised it if he had not become bankrupt. 
 Accordingly the trustee's right of transfer cannot be fettered to a greater extent 
 than that of the bankrupt. This is not always borne in mind. Of course pro- 
 visions forfeiting the shares of a bankrupt member, or permitting the company 
 to dispose of them compulsoi-ily, cannot be relied on. Ex ;parte Jay, in re Har- 
 rison, 14 C. Div. 19.
 
 128 AETICLES OP ASSOCIATION. 
 
 Form 117. See In re Beniham Mills Spinning Co., 11 C. Div. 900, as to effect of Clauses 
 
 10 & 13 of Table A. Under the last-mentioned clause the trustee of a bankrupt 
 
 can insist on being registered, although the bankrupt is indebted to the com- 
 pany ; not so under Clause 38 of this Form. 
 
 Shaee Warrants. 
 
 Power to issue ;-]9, The CO, with respect to fully pd-up shares or stock, may issue 
 
 " warrants (hereinafter called share ^Yarrants), stating that the bearer is 
 
 entled to the shares or stock therein specified, and may provide by 
 
 coupons or otherwise for the paymt of future dividends on the shares 
 
 or stock included in such warrants. 
 
 The Companies Act, 1867, s. 27, et seq., empowers a company limited by shares, 
 if authorized so to do by its regulations as originally framed or as altered by. 
 special resolution, to issue share warrants. 
 
 The share warrants must be under the seal of the company, and will entitle 
 the bearer to the shares or stock therein specified ; and such shares or stock will 
 be transferable by delivery of the share warrant. See form of share warrant, 
 infra, " Certificates." 
 
 As to conili- 40. The directors may determine, and from time to time vary, the 
 
 share warrants Conditions upon which share warrants shall be issued, and, in parlar, 
 shall be issued, upon which a new share warrant or coupon will be issued in the place of 
 one worn out, defaced, lost, or destroyed ; upon which the bearer of a 
 share warrant shall be entled to attend and vote at general meetings ; 
 and upon which a share warrant may be surrendered and the name of 
 the holder entered in the register in respect of the shares or stock therein 
 specified. Subject to such conditions, and to these presents, the bearer 
 of a share warrant shall be a member to the full extent. The holder of 
 a share warrant shall be subject to the conditions for the time being in 
 force, whether made before or after the issue of such Avarrant. 
 
 Sometimes all the matters referred to in the above clause are expressly pro- 
 vided for by the articles, but it is generally thought better not to incumber the 
 articles with such matters of detail, since in the great majority of companies 
 share warrants are never issued. 
 
 For form of conditions, see infra, at end of " Eesolutions." Sometimes, e. g., 
 where the company is going to issue share Avarrants at once, the above clause is 
 omitted, and in lieu thereof the conditions are set forth here at full length. 
 
 The bearer of a share warrant may, if desired, be deprived of the right of 
 voting, but this is seldom done. 
 
 It will be borne in mind that the bearer of a share warrant is not thereby 
 qualified for office when a share qualification is required ; s. 30 of the Act of 
 18G7. But of course the articles might provide that the qualification of a 
 director should be the holding of share warrants for so many shares. See 
 Pearson's case, 4 Ch. Div. 222. 
 
 Conversion of Shares into Stock. 
 Conversion of 41. Thc CO fin general meeting! may convert any pd-up shares into 
 
 shares into , , ^ ^ oJ J j i i 
 
 stock. StOCK.
 
 POEMS. 
 
 129 
 
 Any company limited by shares, if authorized by its regulations as originally Form 117. 
 
 framed, or as altered by special resolution, may convert its paid-up shares into 
 
 stock. S. 12 of the Act. See " Resolutions/' infra. The power is not often 
 exercised, and the clauses relating to it might, if brevity be desired, be omitted. 
 They can at any time be supplied by special resolution. If the words in brackets 
 are omitted, the directors will be able to exercise their general powers, infra. 
 
 See further as to conversion of shares into stock, " Resolutions," infra. If 
 desired, the clause may run thus : " The company may by special resolution 
 convert," &c. 
 
 4:2. When any shares have been converted into stock, the several Transfer of 
 holders of such stock may, thenceforth, transfer their respive interests pj^hts^of 
 therein, or any pt of such interests, in the same manner and subject to holders, 
 the same regulations as and subject to Avhich shares in the co's capital 
 may be transferred, or as near thereto as circes will admit. But the 
 directors may from time to time, if they think . fit, fix the minimum 
 amomit of stock transferable, aud direct that fractions of a jiound shall 
 not be dealt with, with power, nevertheless, at their discretion to waive 
 such rules in any parlar case. 
 
 43. The stock shall confer on the holders thereof respectively the Eiglits of 
 same privileges and advantages, as regards participation in profits and «tock-liohleis. 
 voting at meetings of the co and for other pposes, as would have been 
 conferred by shares of equal amount in the capital of the co, but so that 
 
 none of such privileges or advantages, except the participation in profits 
 of the co, shall he conferred by any such aliquot pt of consolidated stock 
 as would not, if existing in shares, have conferred such privileges or 
 advantages. And, save as afsd, all the provisions herein contd shall, so 
 far as circes will admit, apply to stock as well as to shares. No such 
 conversion shall affect or prejudice any preference or other special 
 privilege. 
 
 Increase and Reduction of Capital. 
 
 44. The CO [in general meeting] may, from time to time, increase the Power to iu- 
 capital by the creation of new shares of such amount as may l)e deemed *^^^^^^ '^^^'^^'^ ' 
 expedient. 
 
 Any company limited by shares, if authorized to do so by its regulations as 
 originally framed, or as altered by special resolution, may increase its cai)ital. 
 Section 12 of the Act. Under the above clause the increase can be effected by 
 a simple resolution passed at an extraordinary meeting. Not uncommonly it 
 is thought better to require the sanction of a special resolution to an increase. 
 Thus : " 44a. The company may from time to time by special resolution in- 
 crease," &c. ; or, the words in brackets can be omitted, and in such case the 
 directors will be able to increase the capital at their discretion. 
 
 45. The new shares shall be issued upon such terms and conditions, On what con- 
 and with such rights and privileges annexed thereto [as the general <l'tious new 
 
 . J- 1 11 J- IT shares may be 
 
 meeting, resolving upon the creation thereof, shall direct, and, it no issued. As to 
 direction be given], as the directors shall determine ; and in parlar such preferences, 
 shares may be issued with a preferential or qualified right to dividends, 
 and in the distribution of assets of the co, and with a special or without 
 any right of voting. 
 
 K
 
 130 
 
 ARTICLES OP ASSOCIATION. 
 
 Form 117. 
 
 Power to 
 modify rights. 
 
 When to be 
 offered to 
 existing 
 members. 
 
 How Iav new 
 shares to rank 
 ■with shftft'.i* ill 
 original 
 capita). 
 
 See fiirther " Eesolutions/' infra. 
 
 If clause •44(1 is used, then omit the words within brackets in the above clause 
 and substitute these: "as by the special resolution creating the same shall be 
 directed, and if no direction be given," &c. 
 
 See further as to increase of capital, infra, where forms of resolutions, notices, 
 «S:c., will be found. 
 
 [-tort. If at any time the capital, by reason of the issue of preference 
 shares or otherwise, is divided into different classes of shares, all or any 
 of the rights and privileges attached to eac-h class may be modified by 
 agreemt l)et\veen the co and any person purporting to contract on l)ehalf 
 of that class, provided such agreemt is confirmed by an extraordinary 
 resolution passed at a separate general meeting of the holders of shares 
 of that class : and all the provisions hereinafter contd as to general 
 meetings shall, mufafis mutamUs, apply to every such meeting, but so 
 that the cpiorum thereof shall be members holding or representing by 
 proxy two-thirds of the nominal amount of the issued shares of the 
 class.] 
 
 Where there are different claeses of shai'es great inconvenience is sometimes 
 caused by there being no powel' fol' the majority of the members of a class 
 to bind the minority, and accordingly the insertion of a clause as above is 
 desirable. 
 
 •U!. The CO [in general meeting] may, before the issue of any new 
 shares, determine that the same, or any of them, shall be offered in the 
 first instance to all the then members, in proportion to the amount of 
 the capital held by them, or make any other provisions as to the issue 
 and allotmt of the new shares : but, in default of any such determination, 
 or so far as the same shall not extend, the new shares may be dealt with 
 as if they formed pt of the shares in the original capital. 
 
 In lieu of the above clause, which is very commonly used, the following, 
 which is similar to the Clause 27 in Table A., may, if preferred, be substituted: 
 " Subject to any direction to the contrary that may be given by the meeting 
 that sanctions the increase of capital, all new shares shall be offered to the 
 members in proportion to the existing shares held by them, and such offer shall 
 be made by notice sj^ecifying the number of shares to which the member is en- 
 titled, and limiting a time within which the offer, if not accepted, will be 
 deemed to be declined ; and after the expiration of such time, or on the receipt 
 of an intimation from the member to whom such notice is given, that he declines 
 to accei)t the shares offered, the directors may dispose of the same in sucli 
 manner as they think most beneficial to the company." See also infra, " Pri- 
 vate Companies," infra. 
 
 47. Except so far as otherwise pnjvided l)y the conditions of issue, or 
 by these presents, any cajutal raised by the ci'catioii of new shares shall 
 be considered pt of the original cai)ital, and shall be subject to the pro- 
 visions berein contd, with reference to the i)iiymt of calls and instalmts, 
 transfer and transmission, forfeiture, lien, surrender, and otherwise. 
 
 The above clause ought to be taken into consideration upon any increase of 
 capital. Where, as in some cases, " the capital " and " shares " are specially 
 interpreted, it would seem that this chxuse might be dispensed with. See also
 
 FOEMS. l.:51 
 
 observations of Kindersley, V. C, in reference thereto. Hutton v. Scarborough, Form 117. 
 
 Sj'c, Co., 13 W. R., 1061. As to the opei-ation of the clause, see Harnson v. 
 
 Mexican Ry. Co., 19 Eq. 358, and Bangor, ^r., Co., 20 Eq. 59. 
 
 4S. The CO may, from time to time, by special resolution, reduce its ReiUictiou of 
 capital by paying off capital or cancelling capital which has been lost or ^'^^'^ '^ ' ' ^' 
 is unrepresented by available assets, or reducing the lia1)ility on the 
 shares or otherwise, as may seem expedient, and capital may be pd off 
 upon the footing that it may be called up again or otherwise. And 
 the CO may also subdivide or consolidate its shares or any of them. 
 
 As to reduction of capital, see infra, Form 160, and note, " Consolidation and 
 Subdivision"; see infra. Form 156, 157. 
 
 [48rt. The special resolution whereby any share is subdivided may Subdivision 
 determine that as between the holders of the shares resulting from such an*Jorj£aJ?^ 
 subdivision, one of such shares shall have any j^reference over the other 
 or others, and that the profits applicable to the paymt of dividends 
 thereon shall be appropriated accordingly.] 
 
 The above power is sometimes found useful. Whether it coiild be taken by 
 special resolution is not clear. 
 
 BoRROAvixa Powers. 
 
 49. The directors may, from time to time, at their discretion, raise or Power to 
 borrow any sum or sums of money for the pposes of the co [but so that ^°"'^^'- 
 the monies at any one time owing shall not, without the sanction of a 
 general meeting, exceed the nominal amount of the capital]. 
 
 As to loans by directors, see Camx/helVscase, 4 C. Div. 470 ; Black x. Mallaluc, 
 5 Jur. N. S. 1018. 
 
 The words in brackets may be omitted, and the following substituted : " But 
 
 so that not more than I. be owing at any one time without the sanction of 
 
 a general meeting." 
 
 Where the company has power to borrow and mortgage, as to which see supra. 
 Form 44, there is no need expressly to delegate the power to the directors, pro- 
 vided that the articles contain a general delegation to them of the powers of 
 the company, as infra. In re Patent File Co., 6 Ch. 83 ; Gibbs and West's case, 
 10 Eq. 312 ; Anglo-Da.nubian, ^'c.,' Co., 20 Eq. 339. 
 
 Nevertheless it is usual to give the directors express power. How far the 
 power should be fettered or limited is a matter of arrangement. It is by no 
 means uncommon to vest the power in the directors absolutely. If this is to 
 be done, omit from "but so that" to end of clause. In small companies it is 
 not unusual to require the sanction of a special resolution. 
 
 As to the validity of securities given for money borrowed beyond the limit, 
 see the rule in the Royal British Bank v. Turquand, 6 E. & B. 327 ; Form 157 
 (infra), from which it appears where there is power to borrow, with the sanction 
 of a general meeting, a lender may assume that the requisite sanction has 
 been obtained. But it would seem that the passing of the special resolution 
 uiust not be assiuned. Irvine v. Union Bank of Australia, 2 App. Cas. 379. 
 
 See case of ultra vires, borrowing by overdrawing banking account. Black- 
 burn Bldg. Soc. V. Cunliffe, 22 C. Div. Gl. 
 
 As to borrowing on the security of deposited debentures. In re Strand Music 
 Hall, 3 De G. J. & S. 147 ; Regent's Canal Ironworks, 3 C. Div. 43. 
 
 K 2
 
 132 
 
 ARTICLES OF ASSOCIATION. 
 
 Porm 117. ^s to personal liability of directors to lenders, where the borrowing powers 
 
 — are exceeded, see Weeks v. Propert, L. E. 8 C. P. 427 ; Chapleo v. Bruiiswick 
 
 Soc, G Q. B. Div. 715; and cases there cited. Even where directors have an 
 unrestricted power to borrow, they not uncommonly seek the sanction of a 
 general meeting before exercising the power. 
 
 Conditions on 
 which money 
 may he 
 borrowed. 
 
 Securities may 
 be assignable 
 free from 
 
 eiiiiities. 
 
 r)0. The directors may raise or secure tlic repaymt of such monies in 
 such manner and upon such terms and conditions in all respects as they 
 think fit, and, in parlar, by the issue of debentures or debenture stock of 
 the CO charged upon all or any pt of the ppty of the co (l)oth present 
 and future), including its uncalled capital for the time being. 
 
 As to debentures, see infra, " Debentures." 
 
 51. Every debenture or other security created by the co, may be so 
 framed that the same shall be assignable free from any equities between 
 the CO and the original or any intermediate holders. 
 
 This clause is sometimes inserted. As to its object, see infra, introductory 
 notes to " Debentures." Where a company has power to issue negotiable 
 instruments, the above clause is probably not necessary, s^t/pra, p. GO. 
 
 52. Any debentures, bonds, or other securities, n^ay be issued at a 
 discount, premium, or otherwise. 
 
 This clause is sometimes inserted, but the power to " raise " money given by 
 Clause 50, and the general powers given, infra, are probably sufficient. In re 
 Anglo-Danubian Steam, ^'c, Co., 20 Eq. 311. 
 
 Register of 53, The directors shall cause a proper register to be kept, in accord- 
 
 iricepf' *" ^"^^ ^^^^ Section 4?, of the Companies Act, 18G2, of all mtges and 
 charges specifically affecting the ppty of the co. 
 
 This clause is inserted by way of reminder. See result of omission to register 
 mortgage, infra, introductory notes to " Debentures." 
 
 ^Mortgage of 
 
 cancelled 
 
 capital. 
 
 54. If any uncalled capital of the co is included in or charged by any 
 mtge or other security, the directors may delegate to the person in whose 
 favour such mtge or security is executed, or to any other person in trust 
 for him, the power to make calls on the members in respect of such un- 
 called capital, and to sue in the name C)f the co or otherwise for the 
 recovery of monies becoming due in respect of calls so made, and to give 
 valid receipts for such monies ; and the power so delegated shall subsist 
 during the continuance of the mtge or security, notwithstanding any 
 change of directors, and shall be assignable if expressed so to be. 
 
 The above is sometimes used. See further as to mortgages of uncalled capital, 
 infra, " Debentures." 
 
 Wlieu first 
 general meet- 
 ing to be held. 
 
 General Meetinos. 
 
 55. The first general meeting shall be held at such time, (not being 
 more than four months after the registration of the mcmoraiulnm of 
 association of the co.) and at such place as the directors may determine.
 
 FORMS. 133 
 
 The Companies Act, 18G7, requires every company to hold a first meeting Form 117. 
 
 within four months after the registration of its memorandum of association. 
 
 An extraordinary meeting is a sufficient comjjliance with this provision. Lord 
 Claude Hamilton's case, S Ch. oiS. 
 
 .5(1. Subsequent general meetings shall be held once in the year — and When subse- 
 in every subsequent year, at such thue and place as may be prescribed by '^'"^"* s^^^^^^ 
 the CO in general meeting, and, if no other time or place is prescribed, held. 
 
 in the month of in every such year at such time and place as may 
 
 be determined by the directors. 
 
 The Act of 1SG2 provides (s. 49) that " A general meeting of every comimny 
 lander this Act shall be held once at least in every year." In this section, 
 ' year' means calendar year, i. e., the period of time commencing on the 1st of 
 January, and ending on the 31st of December, and not the period of twelve 
 months, ending upon the anniversary of the registration. Gibson v. Barton, 
 L. E. 10 Q. B. 329. 
 
 But it seems that a meeting need not be held in the first year if less than 
 four- months of that year remain when the company is registered. Gibso7i v. 
 Barton, L. E. 10 Q. B. 329. See s. 26 of the Act as to the return of a list of 
 "all f)ersons who on the fourteenth day succeeding the day on which the 
 ordinary meeting is held, are members of the company." Default in forward- 
 ing the list renders the company and its directors and managers liable [s. 27] 
 to penalties. See the case last mentioned, and Edmunds v. Forster, 45 L. J. 
 M. C. 41, and Reg. v. Newton, 48 L. J. M. C. 77. The company's penalty is 51. 
 per day. Reg. v. Catholic, 48 L. T. 675. 
 
 Sometimes provision is made for half-yearly meetings. 
 
 57. The above-raentd general meetings shall be called ordinary general Distinctiou 
 meetings'; all other meetings of the co shall be called extraordinary ^^t^'^^" o^-'^ii- 
 
 1 , . nary and 
 
 general meetings. extraordinary 
 
 r>8. The directors may whenever they think fit, and they shall, npon meetings. 
 
 a recmisition made in writing by members holding in the aggreo-ate ^^^.^'^ ^'^*™" 
 
 [one-hrth of the issued capital], convene an extraordinary meeting. meeting to be 
 
 called. 
 
 This is a very usual clause. Sometimes it is thought better to prescribe a 
 fixed number of shares. In such case, omit the words in brackets, and sub- 
 stitute, " not less than [fifty^ shares." Or the clause may run — "the directors, 
 &c., upon a requisition made in ■m.-iting, by not less than one-fifth in number 
 of the members, convene, &c." Sometimes the two are combined, e. g., " upon 
 a requisition in writing, made by any five or more members holding, &c." If 
 the power is to be given, it is as well not to fetter the exercise by conditions 
 which are difficult to comply with. 
 
 The fact that some of the ftroposed resolutions could not be put to the meet- 
 ing, does not render the requisition inoiDerative. Isle of Wight Railway Co. v. 
 Tahourdin, 32 W. E. 297. 
 
 The Court will not comj^el directors to convene a general meeting pursuant 
 to a requisition. Macdougall v. Gardiner, 10 Ch. GOG. But it might, perhaps, 
 itself convene a meeting, if there were no directors, and no other mode of 
 procedure. Per Mellish, L.J., S. C. Where there is a dead lock, s. 52 of the 
 Act may apply. Brick and Stone Co., W. N. 1878, 14-0. The Queen's Bench 
 Division can grant the prerogative writ of mandamus ; but the Chancery 
 Division can only grant a mandamus in an action or matter. Paris Skating Rink 
 Co., G C. Div. 731. 
 
 59. Any such requisition shall sjiecify the object of the meeting re-
 
 J 34 
 
 AETICLES OF ASSOCIATION. 
 
 Form of 
 requisition 
 for iiieetim 
 
 Form 117. quired, and shall be signed by the members making the same, and shall 
 be deposited at the office. It may consist of several documts in like 
 form, each signed l)y one or mure of the requisitionists. The meeting 
 must l)e convened for the pposes specified in the requisitions, and if 
 convened otherwise than by the directors, for those pjioses only. 
 
 Doubts are sometimes raised whether the requisition must not be a singhi 
 document, but it is conceived that it need not. However, it is usual now to 
 preclude doubt by providing as above. 
 
 When requisi- 
 tiouists may 
 call meeting. 
 
 Notice of 
 meeting. 
 
 As to omission 
 to give notice. 
 
 Power for 
 memlier to 
 submit resolu- 
 tion. 
 
 ()<). In case the directors for fourteen days after such deposit fail to 
 convene an extraordinary meeting to be held within twenty-one days 
 after such deposit, the requisitionists [or any other members holding the 
 like proportion of the capital,] may themselves convene a meeting to be 
 lield within six Aveeks after such deposit. 
 
 This clause must be modified if Clause 58 is altered. See note to that clause; 
 e. g., by omitting the words in brackets, and inserting these : " or any members 
 holding not less than fifty shares;" or the following: " or any members not 
 being less than one-fifth in number of the members ;" or, " or any five or more 
 members holding the like proportion of the capital." 
 
 In the interests of members it is desirable to enable the requisitionists to act 
 after a fourteen days' default (instead of twenty-one or twenty-eight days, as 
 sometimes worded) ; othei'wise if it become desirable to pass a special resolu- 
 tion against the wish of tlie directors, great difiiculty may be experienced. 
 
 01. Seven clear days' notice at the least, specifying the place, day, and 
 hour of meeting, and, in case of special business, the general nature of 
 such business, shall be given, either by advertisemt or by notice 
 sent by post or otherwise served as hereinafter provided. [Whenever 
 any meeting is adjourned for twenty-one days or more, at least five 
 days' notice of the place and hour of meeting of such adjourned meeting- 
 shall be given in like manner.] 
 
 As to notices, see further, infra, and " Notices." 
 
 An adjourned meeting is considered a continuation of the original meeting. 
 See Scadding v. Lorant, 1 H. L. Cas. 41S. 
 
 In the absence of special provision, notice of an adjourned meeting need not 
 he sent to every member. Wills v. Murray, 1 Ex. 813. 
 
 G2. The accidental omission to give any such notice to any of the 
 members shall not invalidate any resolution passed at any such meeting. 
 
 Sometimes this clause runs : " The non-receipt of such notice by any member 
 shall not, &c." This is the form in Table A. 
 
 In one form or the other the clause is always inserted. 
 
 [(;2«. Any member entled to vote may, subject to the following 
 provi.so, submit any resolution to any extraordinary meeting beyond the 
 matters specified in the notice calling such meeting.] 
 
 The above clause is occasionally inserted. The word " beyond " will be 
 construed in a very limited sense. See Pe>- Jessel, M.R. ; Imperial Blacki^ool Co., 
 2.3 C. Div. 9.
 
 FOEMS. 28." 
 
 Form 117. 
 
 Proceedings at General Meetings. ~' 
 
 Go. The business of an ordinary meeting shall l)e to receive and con- Business of 
 sider the statemt of income and expenditure, and the 1«dance-sheet, the meetin"^ 
 reports of the directors and of the auditors, to elect directors and other 
 officers in the place of those retiring l)y rotation, to declare dividends, 
 and to transact any other business which, under these presents, ought to 
 be transacted at an ordinary meeting. All other business transacted at Special 
 an ordinary meeting, and all business transacted at an extraordinary '"^^'^^^•''' 
 meeting, shall l)e deemed special. 
 
 The last paragraph of this clause refers to Clause 61. Sometimes it is pro- 
 vided that all special business shall be transacted at any extraordinary meet- 
 ing ; but as this precludes the transaction of special business at an ordinary 
 meeting even after notice, it may be found inconvenient. Of course an 
 extraordinary meeting can be convened to be held at the close of the ordinary ; 
 but if proxies are wanted, there must be a sejmrate proxy paper for each. 
 Infra, Clause 80. 
 
 04. Three members personally present shall be a quorum for a general Quorum, 
 meeting for the choice of a chairman, the declon of a dividend and the 
 adjuurnmt of the meeting. For all other piloses the quorum for a 
 general meeting shall be members personally present, not being less than 
 [.5] in number, and holding, or representing by proxy, not less than one- 
 tenth pt of the issued capital of the co. No business shall l)e transacted 
 at any general meeting unless the quorum requisite be present at the 
 commencemt of the business. 
 
 If the articles do not say " personally " present, can a member present by 
 proxy be counted in a quorum ? See Cambrian, S^'c, Co., W. N. 1876, p. 6 ; 
 31 L. T. 773. 
 
 Of course a resolution passed at a meeting at which a quorum is not present 
 is void ; and so also if passed by votes of persons not entitled to vote, e. g., 
 because indebted to the company. See Clause 81, infra, p. 140, and the case 
 above-mentioned. And a single person cannot constitute a meeting. Sharp v. 
 Dawes, 2 C. B. Div. 27 ; In re Sanitary Carbon Co., W. N. 1880, 223. As to 
 whether provisions in the articles as to quorum apply in case of meetings 
 held for passing a special or extraordinary resolution as defined by ss. 51 
 and 129 of the Act of 1S62, respectively, see infra, introdiictory notes to 
 " Resolutions." 
 
 Table A. provides by Clause 37 as follows: "No business shall be transacted 
 at any general meeting except the declaration of a dividend unless a quorum, 
 of members is present at the time when the meeting proceeds to business, and 
 such quorum shall be ascertained as follows : — that is to say, if the persons who 
 have taken shares in the company at the time of the meeting do not exceed 
 ten, there shall be added to the above quorum one for every five additional 
 members up to fifty, and one for every ten additional members after fifty, with 
 this limitation, that no quorum shall in any case exceed twenty." 
 
 In the case of a small company the quorum is not uncommonly fixed at two 
 or three. Sometimes the following words are added : 
 
 On a show of hands every member shall have one vote only, and proxies 
 shall not be entitled to vote as such. 
 
 {]'). The chairman of the directors shall be eutled to take the chair at ChainiKui of 
 everv a;eneral meeting, or, if there be no chairman, or, if at any meetinsf p*^"^'"^^ '"^^*"
 
 136 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. lie shall not 1)C present -within fifteen minutes after the time aiipointcd 
 for holding- such meeting, the mcmhers present shall choose another 
 director as chairman, and, if no director be present, or, if all the 
 directors present decline to take the chair, then the members present 
 shall choose one of their number to be chairman. 
 Sometimes provision is made for a deputy chairman. 
 
 Wlien, if 
 quomiin not 
 present, meet- 
 ing to be ilis- 
 solvetl, and 
 when to be 
 adjourned. 
 
 How questions 
 to be decided 
 at meetings. 
 
 Casting vote. 
 
 ()6. If within half an hour from the time appointed for the meeting a 
 quorum is not present, the meeting, if convened upon such requisition 
 as afsd, shall be dissolved ; but 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, [those members -«'ho 
 are present shall be a (luorum, and may transact the business for -uiiich 
 the meeting was called.] 
 
 Or the words in brackets nray be omitted, and the following inserted : " it 
 shall be adjourned sine die." This is the form in Table A., but the above is 
 now frequently used, for it is found that members are often so supine, that it 
 is almost impossible to get together a quorum, although the business may be 
 pressing. 
 
 C)7. Every question submitted to a meeting shall be decided, in the 
 first instance, l)y a show of hands, and in the case of an equality of votes 
 the chairman shall, both on show of hands and at the poll, have a casting 
 vote in addition to the vote or votes to which he may be entled as a 
 member. 
 
 See In re Horhury Bridge, S^'c. Co., 11 Ch. Div. 109 ; The Queen y. Government 
 Stock Investment Co., 3 Q. B. D. 41'2. If the number of votes at a general 
 meeting is equal the chairman has no casting vote by common right. 
 
 What is to be G8. At any general meeting, unless a poll is demanded by at least [five] 
 
 evidence of members, or by a member or members holding or representing by proxy 
 
 .1 resolution or entled to vote in respect of at least one-fifth pt of the capital repre- 
 
 wherc poll not g^^ited at the meeting, a declon by the chairman that a resolution has 
 demanded. . . •' . 
 
 been carried, or carried by a parlar majority or lost, or not carried by a 
 
 parlar majority and an entry to that eff"ect in the book of proceedings of 
 
 the CO, shall be conclusive evidence of the fact without proof of the 
 
 number or proportion of the votes recorded in favour of or against such 
 
 resolution. 
 
 There is a common law right to demand a poll, but the regulations may 
 exclude or restrict it. The Queen v. The Wimbledon Local Board, 8 Q. B. Div. 
 459 ; better reported in 30 W. R. 402, and 4G L. T. 47. 
 
 A poll need not be demanded publicly ; it is sufficient if the chairman acts 
 on a private demand. Re Phoenix Co., 48 L. T. 2G0. 
 
 Poll. G9. If a poll is demanded as afsd, it sliall be taken in such manner 
 
 and at sucli time and j)lace as the chairman of the meeting directs, and 
 either at once or after an interval or adjournmt or otherwise, and the 
 result of the poll shall be deemed to be the resolution of the meeting 
 at which the poll was demanded. 
 
 Occasionally the words " and either by ballot or otherwise " are inserted 
 after the word " manner."
 
 FOEMS. 137 
 
 As to a scrutiny, see The Wandsworth, S^c, Co. v. Wriglit, 18 W. E. 728. The Pojin X17. 
 result as entered on tlie minutes is prima facie, correct. 
 
 In Re Hofhury Bridge, ^'c, Co., 11 Ch. Div. 109, Jessel, M.E., is reported to 
 have said that " where a poll is demanded it never is taken then and there, 
 and I am by no means of oi:)inion that a chairman could direct it to be so 
 taken;" and Brett, L.J., concurred. See also Queen v, Wimbledon Local Board, 
 ubi supra. In the wi-iter's exjierience a poll is veiy commonly taken then and 
 there, and it is therefore desirable to frame the above clause so as to authorise 
 such a proceeding- ; for great inconvenience may be caused if a question can 
 never be decided without adjoui-nment. 
 
 Table A. (Clause 43) does not contain the words in brackets ; and where they 
 are not present, it seems very doubtful whether a poll can be properly taken 
 at once. However, there would not seem in such case to be any objection to 
 a direction by the chairman that the poll should be taken at the close of the 
 meeting, and shall be continued on some subsequent day or days. Where a 
 poll is duly demanded, the meeting is deemed in contemplation of law to con- 
 tinue until the poll has been taken. The Queen v. Wimbledon Local Board, ubi 
 supra. At a poll a member can vote personally, though he was not present 
 at the meeting where it was demanded; but the regulations as to proxies 
 generally preclude voting by proxy, unless the proxy letter has been deposited. 
 See Clause 78, infra. Where a poll is demanded, it is usual if the poll is not 
 to be taken then and there, to adjourn the meeting to hear the result ; but 
 sometimes there is no formal adjoui-nment, but it is arranged that notice of 
 the result of the poll is to be given. There would not seem to be any legal 
 objection to the last mentioned course. 
 
 70. The chairman of a general meeting may, with the consent of the Power to ad- 
 
 nieeting, aclionrn tlie same from time to time and from place to place, ^°^™ S'^^^^'^^ 
 
 *" Z . '- ^ ' meeting, 
 
 but no business shall he transacted at any adjourned meeting other than 
 
 the business left unfinished at the meeting from which the adjomiimt 
 
 took place. 
 
 See note to Clause G4. If the chairman improperly purports to adjourn and 
 leave the chair, the meeting can elect some other chairman and proceed. 
 
 71. The demand of a poll shall not prevent the continuance of a Business may 
 meeting for the transaction of any business other than the (|uestion on P^ceed not- 
 
 ''■ '' i^ withstanduig 
 
 which a poll has been demanded. demand of 
 
 poU. 
 
 Votes of MEiiBERS. 
 
 72. Every member shall ha^■e one vote for every share held by him Votes of 
 
 [up to ten, and he shall have an additional vote for every shares members. 
 
 beyond the first ten shares, but no member shall have more than 
 
 votes]. 
 
 The right of voting always deserves careful consideration. Not vmcommonly 
 the words in brackets are omitted in the last sentence. Sometimes a class of 
 members is given no voting power. Sometimes no member holding less than 
 [.£100] capital is given a vote. 
 
 And where a large proportion of the capital is to be issued to a vendor, his 
 rights of voting in respect thereof are sometimes limited. These are matters 
 for the consideration of the promoters. 
 
 Although a member is entitled to vote as he likes. East Pant, ^'c, Co. v. 
 Merry weather , 2 H. & M. 251 ; London Sf Merc. Dis. Co., 1 Eq. 277 ; Pender v. 
 Lushington, G C. D. 70 ; a majority will not be allowed to obtain for themselves 
 an advantage at the expense of the minority. Menier v. Hooper's Telegraph
 
 138 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. ^V^<^rks, 9 Oh. 350; see also Atwool v. Merry weather, 5 Eq. -IGi; Mason v. Harris^ 
 —— '- 11 Ch. Div. 97. 
 
 A member is entitled to transfer his shares to nominees so as to secure to 
 himself the maximum of voting power, and the directors must register the 
 transfers, unless the articles give them a power to decline which is applicable 
 in such case. Stranton Iron Co., IG Eq. 559 ; see further, supra, CI. 30. 
 
 However, it is seldom deemed necessary expressly to restrict the right of 
 transfer in this respect. Clause 81a, infra, is however sometimes inserted, and 
 in all ordinary cases prevents what was done in the case above mentioned. But 
 though Clause 81a may be found useful in this respect, it is open to objection 
 on the score of inconvenience, and on other grounds. 
 
 It is conceived that the right of voting is a right of property (Pender v. 
 Lushing ton, uhi supra) which cannot without consent be taken away or altered 
 by special resolution. See " Eesolutions," infra. 
 
 WIio may vote 
 for infant, 
 lunatic, &c., 
 
 73. Any guardian, or other person eutled under the transmission 
 clause [siqtra, cl. 38] to transfer any shares, may vote at any general 
 
 and subject to meeting in respect thereof in the same manner as if lie were the registered 
 tions ^°"^ ^ holder of such shares, provided that forty-eight hours at least before tho 
 time of holding the meeting at Avhich he proposes to vote he shall satisfy 
 the directors of his right to transfer such shares, or unless the directors 
 shall have previously admitted his right to vote at such meeting in 
 respect thereof. 
 
 74. If there be joint registered holders of any shares, the member 
 whose name stands first on the register, and no other, shall be en tied to 
 vote in respect of such shares, l)ut the other or others of the joint holdei-s 
 shall be eutled to be present at the general meeting. 
 
 The above clause is generally used, but sometimes the following is inserted : — 
 " Where there are joint registered holders of any share or stock, any one of 
 such persons may vote at any meeting, either personally or by proxy, in respect 
 of such share or stock as if he were solely entitled thereto ; and if more than 
 one of such joint holders be present at any meeting personally or by proxy, that 
 one of the said persons so present whose name stands first in the register in 
 respect of such shares or stock, shall alone be entitled to vote in respect 
 thereof." 
 
 In what cases 
 no poll. 
 
 Proxies per- 
 mittefl. 
 
 Instrument 
 •appointing 
 
 75. Any poll duly demanded on the election of a chairman of a 
 meeting, or on any question of adjournmt, shall 1)0 taken at the 
 meeting, and without adjournmt. 
 
 It seems doubtful whether in the absence of express power a poll can be de- 
 manded on a question of adjournment. MacDougal v. Gardiner, 1 C. Div. 13. 
 However, a clause as above is frequently inserted and seems expedient. Not 
 uncommonly it is provided that no poll shall be demanded in such cases, but na 
 good reason can be suggested why proxies should be deprived of the power to 
 vote on these matters. If a poll cannot be demanded, a few members who 
 happen to be personally present may be able to effect an adjournment, say, 
 for three months, though at a poll there would be a vast majority against 
 .adjournment. 
 
 7ii. Votes may be given eitlier personally or liy proxy. 
 
 There appears to be no right at common law to vote by proxy. 
 Cori)oi"ations, 250 ; hence it must be exjH'essly given. 
 
 See Grant on 
 
 77. The instrumt ap])ointing a prf>xy shall be in writing, under the 
 hand (if the appointor, (ir, if such appointor is a coriMirntion, under its
 
 FOEMS. 1:39 
 
 cominon seal, [and shall be attested by one or more witnesses]. ISTo person Form 117. 
 shall be ai^poiutcd a proxy who is not a member of the co and qnalified Di^oxyToljehT 
 
 to vote. writing ; 
 
 The words in brackets are sometimes omitted, for attestation may be for- 
 gotten, and in that case the instrument is not available. Harben v, Phillips, 
 23 C. Div. li. There would not ai^jDear to be any legal objection to a proxy in 
 blank. Ex parte Doncaster, 5 C. Div. 911 ; and see supra, p. 125. 
 
 78. The instrnmt appointing a proxy shall be deposited at the regis- ami to be 
 tered office of the co not less than forty-eight hours before the time for ||^P"^'ted at 
 holding the meeting at which the person named in such iiistrumt pro- 
 poses to vote, [but no instrnmt appointing a proxy shall be valid after 
 
 the expiration of twelve months from the date of its execution.] 
 
 Sometimes the words within brackets in the above clause are omitted, and 
 the following- substituted : " and no pi'oxy shall be entitled to vote except at 
 the particvxlar meeting- mentioned in the instrument, or any adjournment 
 thereof, and upon every poll that may take place at or in consequence of any 
 such meeting- or adjournment." But there seems no sufficient reason why a 
 member should not be enaljled to appoint a proxy for a specified period, e. g., 
 where he is going abroad. It was very proper to insert such a provision when 
 the law would not permit the appointment of a proxy excej^t in regard to a 
 specified meeting. See infra, note to Clause 80. 
 
 [78a. A vote given in accordance with the terms of an instrnmt of when vote i^y 
 proxy shall be valid notwithstanding the in-evious death of the principal, pi'oxyvalui 
 or revocation of the proxy, or transfer of the share in respect of whicli rity revoked. 
 the vote is given, provid(,'d no intimation in writing of the death, revo- 
 cation, or transfer shall have been received at the registered office of the 
 CO l)efore the meeting.] 
 
 This is occasionally inserted and may be useful. 
 
 79. Holders of share warrants shall not be entled to vote by proxy in iiniders of 
 resiiect of the shares or stock included in such warrants. ^'''"'® warrants 
 
 ^ . . not to vote oy 
 
 80. Every mstrumt of proxy, whether for a specified meeting or other- jn-oxy. 
 
 wise, shall, as nearly as circes will admit, be in the form or to the effect Form of proxy. 
 following : — 
 
 The Co, Limtd. I , of , in the county of , lieing 
 
 a member of The Co, Limtd, hby appoint , of , [or fail- 
 ing him, of , or failing him, of ,] as my proxy, to 
 
 vote for me and on my behalf at the (ordinary or extraordinary as flic 
 
 rase may he) general meeting of the co to be held on the day of 
 
 — — , and at any adjournmt thereof. 
 
 As witness my hand, this day of . 
 
 Signed by the sd in the presence of . 
 
 By virtue of 7 & 8 Vict. c. 21, s. G, and 19 & 20 Vict. c. 81, s. 2, a proxy 
 could only be appointed for a specified meeting, but both those Acts were re- 
 pealed by the Inland Revenue Eepeal Act, 1870 (33 & 31 Vict. c. 99). By the 
 Stamp Act, 1870, as amended by 31 Vict. c. 1, a letter or power of attorney or 
 commission, factory, or mandate, or other instrument in the nature thereof for 
 the sole purpose of aj^pointing or authorising a proxy to vote at any one meeting 
 at which votes may be given by proxy, whether the niimber of persons named
 
 140 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. 
 
 No member 
 
 entitled to 
 vote. &c., 
 wliile call due 
 to company. 
 
 Resolution in 
 writinij of 
 directors, in 
 fcrtain eases, 
 to be equiva- 
 lent to resolu- 
 tion of ;„'eiienil 
 meeting. 
 
 in sticli instiaiment be one or more, is charged with the duty of one penny, and 
 any other instrument appointing a proxy is liable to a duty of 10s. 
 
 Hence, a proxy as above only requires a penny stamp. If the proxy is to be 
 for a specified period, e. g., " at any general meeting of the company that may 
 be held before the day of ," or for several specified meetings, it re- 
 quires a 10s. stamp. It is often found convenient to name several in the 
 alternative as above, lest one should be absent. 
 
 Section 102 of the Stamp Act, 1870, provides as follows : — 
 (1.) Every letter or power of attorney for the purpose of appointing a proxy 
 to vote at a meeting, and evei-y voting pajier, hereby respectively charged 
 with the duty of one penny, is to specify the date upon which the meet- 
 ing at which it is intended to be used is to be held, and is to be available 
 only at the meeting so sjDecified, or any adjournment thereof. [This 
 paragraph does not aj^jDly where a 10s. dvity is jmid as above.] 
 (2.) The said duty of one penny may be denoted by an adhesive stamp which 
 is to be cancelled by the person by whom the instrument is executed. 
 [As to mode of cancelling, see supra, p. 5.] 
 (3.) Every person who makes, or executes, or votes, or attempts to vote under 
 or by means of any such letter or jjower of attorney or voting paper, not 
 being duly stamped, shall forfeit the sum of fifty pounds. 
 (■4.) Every vote given or tendered under the authority or by means of any 
 such letter or power of attorney or voting paper, not being duly stamped, 
 shall be absolutely null and void. 
 (5.) And no such letter, or power of attorney, or voting paper shall, on any 
 pretence whatever be stamped after the execution thereof by any person. 
 When proxies are sent out it will be found expedient to have them impressed 
 with the requisite stamp, for even Avhere i^recise directions as to the proper 
 mode of cancelling an adhesive stamp are given, it is generally found that a good 
 many shareholders will make some mistake. It would seem that a proxy bear- 
 ing a stamj) not duly cancelled ought not to be counted. As to the statutory 
 mode of cancellation, see supra, p. 5. 
 
 81. No mcu::bei' shall l)e eiitled to be present, or to vote on any 
 question, either jiersonally or by proxy or as proxy for another member, 
 at any general meeting, or upon a poll, or be reckoned in a quorum, 
 whilst any call or other sum shall be due and payable to the co in respect 
 of any of the shares of such member. 
 
 See the Camhrian, S;c., Co., W. N. 187G, G. The following clause is not 
 uncommon : — 
 
 81a. No member shall be entitled to be present or to vote on any question 
 either personally, or by proxy, or as proxy for another member, at any general 
 meeting or upon a poll, or be reckoned in a quorum, whilst any call or other 
 sum shall be due and payable to the company in respect of any of the shares of 
 such member ; and no member shall be entitled to be present or to vote in 
 resioect of any share that he has acquired Ijy transfer at any meeting held after 
 the expiration of three calendar months from the registration of the companj' 
 ess he has been jjossessed of the share in respect of which he claims to vote 
 •^.t least three months previously to the time fixed for holding the meeting 
 at Avhich he proposes to vote, or (if such meeting be an adjourned meeting) to 
 the time originally fixed for holding the same. 
 
 82. Any resolution passed by the directors, notice whereof shall l)e 
 given to the members in the manner in which notices are hereinafter 
 directed to be given, and which sliall, within one month after it shall 
 have been so passed, be ratified and confirmed in writing by members 
 entlcd at a poll to thrce-fiftlis of the votes, sliall be as valid and effectual
 
 FOEMS. 14,1 
 
 as a resolution of a general meeting, but this clause shall not apply to a Form 117. 
 
 resolution for winding up the co, or to a resolution passed in respect of ' 
 any matter whicli by the statutes or these presents ouglit to be dealt 
 with by special or extraordinary resolution. 
 
 This clause is now commonly inserted, and is found very useful. It is some- 
 times next to impossible to g-et a general meeting together, and business is 
 obliged to be left in abeyance meantime. 
 
 Directors. 
 
 83. The number of the directors shall not be less than [three] nor Number of 
 
 .-, r T directors. 
 
 more than [seven] . 
 
 It is seldom that a large number of directors is a benefit to a company ; if the 
 company is a large one, and there is much business to be done by the Board, it 
 may be necessary in order that there may be no difficulty in securing a quorum ; 
 but in many companies the powers and duties of the Board are for the most 
 part delegated to a managing director or manager, and where this is the case, 
 there is no reason for having a large number of directors. Even where this is 
 not done, it is found that a moderate number are, by reason of the increased 
 individual responsibility, more likely to work. 
 
 84. Tlie persons hereinafter named shall be the first directors, that is First directors. 
 to say : A. of- ; B. of ; and C. of , &c. 
 
 It is usual to appoint the directors by the articles, but the plan adopted in 
 Table A. is sometimes preferred, namely, to provide that: 84a. "The first 
 directors shall be named by the subscribers of the memorandum of association ;" 
 or thus: " The first directors shall be appointed by the subscribers hereto, or 
 the majority of them, by an instrument in writing under their hands." How- 
 beach Coal Co., Limited v. Teagne, 5 H. & N. 151 ; 29 L. J. Ex. 137 ; 8 W. E. 
 2G4. 
 
 Where the subscribers are to appoint the directors, the articles generally 
 declare that : " Until the first directors shall have been appointed, the sub- 
 scribers to the memorandum of association shall be deemed to be the directors." 
 This does not enable a meeting at which so many of the subscribers are present 
 as would constitute a quorum for a meeting of directors under Clause 103, to 
 pass a resolution binding on the absent subscribers. Howbeach, c^'c. Co. v. Teague, 
 oH. & N. 151. 
 
 Where no directors are appointed, and a meeting cannot be called in accord- 
 ance with the regulations, section 52 of the Act applies, and accoi'dingly five 
 members can call a meeting. Brick ^ Stone Co., W. N. 1878, 140. 
 
 85. The directors shall have power to appoint any other persons to Tower for 
 be directors at any time before the ordinary general meeting, to be held ap'J^oint'' ^"^ 
 
 in the year , l)ut so that the total number of directors shall not at additional 
 
 any time exceed the maximum number, fixed as above. ' "^'^ °'^" 
 
 This clause is very commonly inserted, and is found convenient, especially 
 where less than the maximum number are appointed by the articles. Some- 
 times it is considered to give a continuing jjower, e. g., "power from time to 
 time and at any time to appoint any other persons to be directors but so, &c." 
 In that case Clause 100 as to casual vacancies will be omitted. 
 
 Although it is often done, it is doubtful whether, under such a clause, or 
 under Clause 100, infra, directors can be appointed in pursuance of a contract 
 with some person or company for the purpose of giving such person or company
 
 142 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. a voice in the management. See Stace and Worth's case, i Ch.G82 ; Jamesr. Eve, 
 L. E. G H. L. 189 ; De Ravigne's case, 5 C. Div. 30G. 
 
 (Qualification 
 of directors. 
 
 Power for 
 director to 
 retire. 
 
 8f^. The qualification of every director shall l)e tlie holding in his own 
 
 right of shares or stock of the co of the nominal value of /. [A 
 
 director may act before acquiring his qualification.] 
 
 It has become not uncommon now to omit the qualification clause. It affords 
 very little real security to shareholders, and sometimes prevents a suitable 
 man from accepting office. No qualification is rec^uired by Table A. 
 
 It was decided in Brown's case, 9 Ch. 102, that a clause as above does not bind 
 a director to take his qualification shares from the company. It will be 
 sufficient, if, within a reasonable time after appointment, he acquire the 
 necessary shares in any other legal mode by which shares can beacc^uired, c. g., 
 by purchase in the market, by transfer from a friend, or otherwise. 
 
 But Jessel, M.R., in Miller's case, 3 C. Div. GGl, was of opinion that the 
 time expires when the director acts, and that he thereupon becomes bound to 
 take the shares from the company. And see Karuth's case, 20 Eq. oOG ; and 
 Brett's case, 49 L. T. 481. But where a qualification is necessary, and a 
 director acts, and is registered as the holder of the qualifying shares, he will 
 be fixed as a contribvitory, even though he was not aware of the registration. 
 See the above cases. 
 
 Acting as a director without qualification is not a misfeasance under s. 1G5 of 
 the Act. Coventry's case, 14 C. Div. 660. But a person so acting will be liable 
 for misconduct or breach of trust, as if he were a director de jure, S. C. 
 
 The words in backets are very commonly inserted, in order that a director 
 may not be precluded from acting until he has obtained the shares. See 
 infra. Clause 93, for provision vacating this office, if he does not obtain the 
 shares within a limited period. 
 
 Sometimes it is provided that " no person shall be qualified to be a director 
 
 who is not a holder of shares to the nominal amount of 1." In such the 
 
 appointment of a person not duly qualified is void. Percy and Kelly, cfc, Co., 
 7 C. Div. 132. 
 
 Whether the acts of a director who has not been duly appointed, or who is 
 disqualified, are void, mustdepend on the circumstances of the case. Clause 112, 
 infra, and s. 67 of the Act (see infra, p. 151), will api^ly in most cases, but only 
 as to acts done before the defect or disc^ualification is shown. Hallowes v. Fernie, 
 3 Ch. 4G7 ; Miirray v. Bush, G H. L. 53 ; Bridport, S^c, Co., 2 Ch. 191. And not, 
 it Avould seem, in favour of any person at the time of the act done having 
 notice of the defect or disqualification. 
 
 As to liability of directors whose qualification is provided bj' the promoters, 
 see Orders, infra. 
 
 81). A director may retire fi'om his office upon giving one month's 
 notice in writing to the co of his intention so to do, and such resigna- 
 tion shall t.dvc effect upon the expiration of such notice or its earlier 
 acceptance. 
 
 Instead of the above clause, the following is sometimes used : — 
 89a. A director may at any time give notice in writing of his wish to resign, 
 by delivering such notice to the chairman of the directors, or the secretary, or 
 leaving it at the office of the company, or by tendering his written resignation 
 at a meeting of the directors, and on the acceptance of his resignation by the 
 directors, but not before, his office shall become vacant. 
 
 It is generally deemed expedient to pi'ovide expressly for resignation of 
 directors. Clause 89 is very commonly used, but Clause 89a is sometimes 
 preferred, in order that a company may not be inconvenienced by the sudden 
 retirement of several directors.
 
 FORMS. 143 
 
 There can be little doubt that even where no express power to resign is Form 117. 
 
 given, a director has an implied one. See Maitland's case, 4 De G. M. & G. ■ 
 
 7C9. If directors were to be regarded as trvistees, the -rule would api^ly that 
 
 ix trustee can only retire under a power, or by the consent of the parties , 
 
 interested. But it is submitted that a director is only a trustee as regards 
 
 the powers and duties annexed to his office, and that the office is merely that 
 
 of a manager or agent of the company. See Knox v. Gye, 5 H. L. G70 ; 
 
 Parker v. McKenna, 10 Ch. 96 ; Ottoman Bank v. Farley, 17 W. E. 7C1 ; Thring, 
 
 120 ; and there is no doubt that an agent can put an end to his agency on 
 
 giving proper notice. Eussell on Agency, 2nd ed., 253 ; Story on Agency, 
 
 Sth ed., 673. 
 
 It may be observed that Table A. contains no clause as to resignation. 
 
 In practice it is always assumed that a director can retire mero inotu, 
 and the object of a clause is to fix the length of notice, or to restrict the 
 right. 
 
 'm. The directors shall he pd out uf the funds of the co by way of re- l^emuneration 
 '■ '' ■; or directors, 
 
 muneratioii for their services the sum f»f 1, per annum, which sum 
 
 shall be divided among them in such proportions and manner as the 
 
 dii'ectors may determine. 
 
 This is a very common clause. Sometimes it is altered thus : "Among them 
 in proportion to their respective attendances at board meetings." 
 
 In some cases the clause runs : " Such sum as the company in general meeting 
 iinay from time to time determine, which svim shall, &c." 
 
 The following is another form sometimes adopted : — 
 
 ■"The remuneration of each director for his services shall be the sum of 1. 
 
 ■per annum ;" or, 
 
 " The remuneration of the directors shall be the sum of 1, apiece for each 
 
 attendance at a meeting of the directors." 
 
 In addition to fixed remuneration as above, the directors are not uncom- 
 nuonly given a share in, or commission on, the profits. See infra. Form 128a. 
 
 Directors are not entitled to remuneration, except by virtue of the regula- 
 tions of the company. Dunstan v. Imperial S^c., Co., 3 B. & Ad. 125. But where 
 the articles fix remuneration as above, the directors will have a right of action 
 in respect thereof, Orton v. Cleveland Firebrick Co., 3 H. & C. 868; 13 W. E. 
 869 ; and may pay themselves out of the funds of the company. Unless the 
 articles provide that the fees shall be paid out of the profits only, there is 
 nothing to jn-event their being paid out of capital. Harvey Lewis' Case, 26 L. T. 
 .073. 
 
 If the articles contain j^rovision for remvmeration, a promise by a director to 
 .•give his services gratis, is a 7iudum jjactum in the absence of some valid con- 
 sideration, and therefore not binding; Lambert v. Northern, 4'c., Co., 18 W. E. 
 180 ; at any rate, as regards the persons who were members of the comi:»any at 
 .the time of the pi'oiDise. 
 
 '.)!. The continuing directors may act notwithstanding any vacancy Directors may 
 in their body : [but so that if the number falls below the minimum above *f * notwitk 
 
 •' ^ . . .stanclini; 
 
 fixed the directors shall not, except for the pjiose of filling vacancies, act vacancy'! 
 : so long as the number is below the minimum]. 
 
 Where there is a maximum and minimum number fixed as above [Clause 83], 
 the directors connot act if the number falls below the minimum. Alma Spinning 
 Co., 16. C. D. 681 ; unless there is power to act, notwithstanding vacancies. 
 Scottish Petroleum Co., 23 C. Div. 431. The words in brackets are sometimes 
 inserted ; and occasionally the words "so long as the minimum number exists" 
 .are used instead. But they may cause inconvenience. Sometimes the words.
 
 144 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. " But this provision shall be deemed directory only," are added to Clause 83, 
 i. e., directory as distinguished from imperative (Lindley, 82 i) ; but the word* 
 are not intelligible to an average director. 
 
 When office of 
 director to be 
 vacated . 
 
 !12. The office of a director shall he yacatcd : — 
 
 («.) If he accepts or holds any other office under the co [except that 
 of managing director]. 
 
 The words in brackets will be inserted where the articles provide for the 
 appointment of a managing director. 
 
 In the Iroji Ship, Sfc, Co. v. Hunt, 3 C. P. 484, the articles contained a provi- 
 sion as above (a). A. had been appointed secretary at a salary, and, whilst 
 secretary, was elected a director and acted as such, still, however, continuing 
 to perform the duties of the secretary. It was held that the acceptance of the 
 office of director! vacated the office of secretary, and that the subsequent per- 
 formance of the duties of the latter office did not disqualify him under (a). 
 
 Sometimes this sub-section is omitted, and a clause inserted that " A director 
 may hold any other office under the company in conjunction with the office of 
 director." In a small company this may be convenient. 
 
 (h.) If he hecomo bankrupt, or suspends paymt, or compounds with 
 
 his creditors. 
 (c.) If he be found lunatic or becomes of unsound mind. 
 (d.) If he cease to hold the required amount of shares or stock to 
 
 qualify him for office, or do ]iot acquire the same within [three] 
 
 months after election or appointmt. 
 (f.) If he absent himself from the meetings of the directors during a 
 
 period of three calendar months without special leave of absence 
 
 from the directors. 
 
 This subsection is sometimes inserted. 
 
 As to the validity of acts done by a disqualified director, see infra. Clause 
 112, p. 150, and sujira, p. 142. 
 
 Sometimes a further subsection is added as follows : — 
 
 [(/.) If he is concerned in or participates in the profits of any contract 
 Avith or work dune for the co ; but no director shall vacate his 
 office by reason of his being a member of any co which has 
 entered into contract with or done any work for this co, or 
 which is concerned in or participates in the profits of any con- 
 tract with the CO.] 
 
 Where this is used, Clause 93, infra, will be omitted. 
 Sometimes a further paragraph is added : 
 
 (^.) If he is recjuested iu writing by all his co-directors to resign. 
 
 Directors may 0.3. Xo director shall be disqualified l)y his office fi-om contracting 
 contract with y^\i\^ w^q qq either as vendor, pchaser, or otherwise, nor shall any such 
 contract or arrangemt or any contract of arrangemt entered into by or 
 on l)ehalf of the co with any co or partnership, of or in which any 
 director shall be a member or otherwise interested be avoided, nor shall 
 any director so contracting or being such member, or so interested, be 
 liable to account to the co for any profit ]-ealized Ity any such contract 
 or arrangemt by reason only of such director holding that office or of 
 
 company.
 
 FORMS. ] 45 
 
 the fiduciary relation thereby established, but no such director shall vote Form 117. 
 in respect of any such contract or arrangcmt [and the nature of his 
 interest where it does not appear on the face of the contract must be 
 disclosed by him at the meeting of the directors at which the contract or 
 arrangcmt is determined on, if his interest then exists, or in any other case 
 at the first meeting of the directors after the acquisition of his interest]. 
 
 Sometimes the words in brackets are omitted, but they are useful as a 
 reminder. 
 
 As a director stands in a fiduciary relation towards the company, he cannot, 
 unless the articles otherwise provide, contract with the company. Albion, iSfc, 
 Co. V. Martin, 1 C. Div. 580. Nor does it make any difference that the contract 
 is open and above board as between the contracting director and his co-di- 
 rectors. Ibid. 
 
 But a company may unquestionably waive the benefit of the rule. Imperial, 
 i^c. Association v. Coleman, G Ch. 5G8 ; L. E.. G H. L. 190 ; Southall v. British 
 Mutual, <^c., Society, G Ch. 619 ; Black v. Mallalue, 7 W. E. 303 ; Adamson's 
 case, 18 Eq. G70 ; and it has now become very common to do so, and to insert 
 clauses to the effect of the above. 
 
 It may be convenient here to refer to the well settled rule, that an agent 
 cannot, without the knowledge and consent of his principal, be allowed to make 
 any profit out of the matter of his agency beyond his proper remuneration. 
 This rule applies with peculiar stringency to the directors of joint-stock com- 
 panies. Hay's case, 10 Ch. GDI. 
 
 The rule is " not a technical or arbitrary rule. It is a rule founded upon the 
 highest and truest principles of morality. No man can, in this court, acting as 
 agent, be allowed to put himself into a position in which his interest and his 
 duty will conflict." Per Lord Cairns, L. C, Parker v. McKenna, 10 Ch. 118. 
 
 See the above cases and the following : — 
 
 Parker v. Lewis, 8 Ch. 1035 ; Ottoman Bank v. Farley, 17 W. E. 7G1 ; Carling's 
 case, 1 Ch. Div. 123 ; Morvah, Consols, S^c, Co., 2 Ch. Div. 1 ; Morrison v. 
 Thompson, L. E. 9 Q. B. -ISO; Pearson's case, 5 C. Div. 33G ; Dunne v. English, 
 18 Eq. 524; Dc Bussche v. Alt, 8 C. Div. 300. 
 
 Sometimes the voting is i^ermitted. 
 
 Sometimes a clause as follows is inserted : — 
 
 93a.. A director of this company may be, or become, a director of any com- 
 pany promoted by this company, or in which it may be interested as a vendor, 
 shareholder or otherwise, and no such director shall be accountable for any 
 benefits received as director or member of such company. 
 
 Such a clause is occasionally inserted where the formation of such companies 
 is in view. 
 
 Rotation of Directors. 
 04. At the ordinary general meeting, to be held in the year , and Rotation and 
 
 , J. T 1 ,. i-i-iriiTi- retirement of 
 
 at every succeedmg ordmary general meeting, one-third or the directors, directors, 
 or, if their number is not a multiple of three, tben the numl^er nearest 
 to, but not exceeding one-third, shall retire from office. [A retiring 
 director shall retain office until the dissolution or adjournmt of the meet- 
 ing at which his successor is elected.] 
 
 The above is a clause which is in very general use. 
 Table A. provides that : 
 
 "At the first ordinary meeting after the registration of the company, the whole 
 of the directors shall retire from office ; and at the first ordinary meeting in every 
 
 L
 
 146 
 
 ARTICLES OF ASSOCIATION. 
 
 Form 117. subsequent year ono-third of the directors for the time being, or, if their num- 
 
 ber is not a multiple of three, then the number nearest to one-third, shall 
 
 retire from office." 
 
 Biit that clause is seldom adopted in its integrity. The promoters generally 
 nominate the first directors, and it is considered only fair that they should have 
 a reasonable time to try their policy. Of course, if the conn:iany chooses, it can. 
 at any time remove them under Clause 99. 
 
 Which direc- 
 tors to retire. 
 
 Meeting to fill 
 lip vacancies. 
 
 9.5. The one-third, or otlier nearest number, to retire at the ordinary 
 
 meeting to be held in the year , shall, unless, the directors agree 
 
 among themselves, be determined by lot ; in every subsequent year the 
 one-third, or other nearest number, who have been longest in office shall 
 retire. As between two or more who have been in office an equal length 
 of time the director to retire shall in default of agreemt between them 
 l)e determined by lot. The length of time a director has been in office 
 shall be computed from his last election or appointmt where he has 
 previously vacated office. A retiring director shall be eligible for 
 re-election. 
 
 9G. The CO at any general meeting at which any directors retire in 
 manner afsd shall fill up the vacated offices by electing a like number of 
 persons to be directors [and may fill up any other vacancies]. 
 
 The words in brackets are very commonly absent, and in such case it is by 
 no means clear that the meeting could fill up a vacancy unless it was caused by 
 retirement " in manner aforesaid." But see Munster v. Cammell Co., 21 C. D. 
 188, and compare with Imperial Hydropathic Co. v. Hampson, 23 C. Div. 1. 
 
 Votes given in favour of a disqualified person may be thrown away where 
 notice of the disqualification is brought home to the voters. Reg. v. Teivkesbury, 
 L. E. 3 Q. B. G35. And in the result the candidate who stands next may be 
 entitled to office. 
 
 tors to remain 
 in office till 
 successors 
 appointed. 
 
 Retiring direc- 97. If, at any general meeting at which an election of directors 
 ought to take place, the places of the retiring directors are not filled up, 
 the retiring directors, or such of them as have not had their places 
 filled up, shall continue in office until the ordinary meeting in the next 
 year, and so on from year to year until their places are filled up, unless 
 it shall be determined at such meeting to reduce the number of 
 directors. 
 
 If by reason of the refusal of a du-ector to continue there remains a vacancy, 
 it can be filled up as a casual vacancy. See Mimster v. Cammell Co., uhi supra. 
 
 But for this clause the acts of a director who, after his office was vacated, 
 under Clause 95, continued to act, would, subject to s. 67 of the Act (infra, 
 p. 128, note to Clause 112), be void as against the members. The Garden Gully, 
 cf"c., Co. V. McLister, 1 App. Cas. 39. Of course, as regards strangers, the jirin- 
 ciple of the Royal British Bank v. Turquand would apply. See infra. Form 
 157. 
 
 98. The CO in general meeting may from time to time increase or 
 reduce the number of directors, and may [alter their qualification, and 
 may] also determine in what rotation such increased or reduced number 
 
 reduce number jj. ^^ ^^^^ of office. 
 01 directors. 
 
 Power for 
 general 
 meeting to 
 increase or 
 
 The words in brackets are sometimes found useful.
 
 FOEMS. 147 
 
 99. The CO may I)y extraordinary resolution remove any director Form 117. 
 l)efore the expiration of his })eriod of office, and appoint another [qnali- p^^^.^j. ^^ 
 fied] person in his stead : the person so appointed shall hold office during- remove 
 such time only as the director in whose place he is appointed would have ppgchi Veso- 
 held the same if he had not been removed. lution. 
 
 As to meaning of extraordinary resolution, see infra, "Resolutions." Table A. 
 provides for removal by sj^ecial resolution. Sometimes the clause is framed as 
 follows : " The company in general meeting may," &c. Unless the regulations 
 give the requisite authority, a director cannot be removed even by special 
 resolution. Imperial Hydropathic Co. v. Hampson, 23 C. Div. 1. 
 
 If there is no power the articles must first be altered, and then the power 
 exercised. However, if in any case where there is no power it is desired to act 
 promptly, a sjiecial resolution can be jjassed giving power to a general meeting 
 to remove, and the notice convening the confirmatory meeting can state that 
 if the resolution is confirmed a further resolution Avill be proposed removing 
 Mr. A. from office. Sometimes the majority is not sufficiently powerful to pass 
 a special resolution for removal. In such case it may be expedient to pass a 
 resolution dismissing the director, for where the majority is against a director, 
 the Court will not force him on the company by injunction. Harbcn v. Phillips, 
 14 C. Div. 14. 
 
 100. Any casual vacancy occurring among the directors may be filled Directors may 
 
 up by the directors, but any person so chosen shall retain his office so *^'^ "P casual 
 
 •^ ■' ^ ^ vacancies. 
 
 long only as the vacating director would have retained the same if no 
 
 vacancy had occurred. 
 
 This clause is usually inserted. It would be extremely inconvenient in most 
 cases if a general meeting of the company had to be called to fill up a casual 
 vacancy. 
 
 A casual vacancy means any vacancy arising otherwise than by retirement 
 imder CI. 94. Munster v. Cammell Co., 21 C. D. 183. 
 
 Where the directors are given a general power [supra, note to CI. 85] to 
 appoint additional directors, this clause will be omitted. 
 
 100a. No person, not being a retiring director, shall, unless recom- When candi- 
 mended by the directors for election, be eligible for election to the office '^'^^f. ^°\ "^°® 
 of director at any general meeting, unless he, or some other member in- must give 
 tending to propose him, has, at least seven clear days before the meeting, 'lotice. 
 left at the office of the co a notice in writing under his hand signifying 
 his candidature for the office, or the intention of such member to pro- 
 pose him. 
 
 This clause is found convenient and for the benefit of a company. It enables 
 inquiries to be made as to a candidate's antecedents, &c., &c. See Barber's case, 
 5 C. Div. 9G3. 
 
 MAXAGIXa DlIlECTOK. 
 
 101. The directors may, from time to time [with the sanction of a Power to 
 general meeting], appoint one or more of their body to l)e managing •'^rP"^'"* 
 director or managing directors of the co, either for a fixed term or directs." 
 without any limitation as to the period for which he or they is or are 
 to hold such office, and may from time to time remove or dismiss him or 
 
 L 2
 
 148 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. them from office and appoint another or others in his or their place or 
 places. 
 
 The words in brackets are commonly omitted. The above and the following 
 are the usual clauses as to a managing director. It seems expedient in most 
 cases to insert them in order to avoid the necessity of having to alter the 
 articles. Of course the exercise of the powers contained in these clauses is 
 optional. Not uncommonly the first managing director is appointed by the 
 articles. See Forms, infra, " Miscellaneous Clauses." 
 
 What provi- 
 sions he will 
 be subiect to. 
 
 Kemnneration 
 of managing 
 director. 
 
 Powei's and 
 duties of 
 managing 
 director. 
 
 102. A managing director shall not, while he continnes to hold that 
 office, be snbject to retiremt by rotation, and he shall not be taken into 
 account in determining the rotation of retiremt of directors, but he shall, 
 subject to the provisions of any contract between him and the co, be 
 snbject to the same provisions as to resignation and removal as the 
 other directors of the co, and if he cease to hold the office of dii'cctor 
 from any cause he shall, ipso facto, and immediately, cease to be a 
 managing director. 
 
 lOo. The remuneration of a managing director shall from time 
 to time be fixed by the directors [or by the co in general meeting], and 
 may be by way of salary, or commission, or participation in profits, or by 
 any or all of those modes. 
 
 Sometimes the articles give him a commission on the profits, or on the sur- 
 plus profits, or on the dividend paid. 
 
 104. The directors may fi'om time to time entrust to and confer upon 
 a managing director for the time being such of the powers exercisal^le 
 under these presents by the directors, as they may think fit, and may 
 confer such powers for such time, and to be exercised for such objects 
 and Imposes, and upon such terms and coTiditions, and with such re- 
 strictions as they think exjicdient; and they may confer such powers, 
 either collaterally with, or to the exclusion of, and in substitution for, all 
 or any of the powers of the directors in that behalf ; and may from time 
 to time tevoke, withdraw, alter, or vary all or any of such powers. 
 
 These powers will be conferred by resolution of the directors. In the absence 
 of express power to delegate, the maxim " delegatus non potest delegare," applies 
 to directors, Howard's case, 1 Ch. 5G1 ; Harris' case, 7 Ch. 587. In the latter 
 case there being a power to delegate, it was held that an allotment made by a 
 committee instead of by the board of directors was valid. See also Re Land 
 Credit Co., 4 Ch. 460. See the general power of delegation, infra, CI. 110. For 
 exceptions to rule, see Bussche v. Alt, 8 C. Div. 300, and Rossiter v. Trafalgar 
 Co.. 27 Beav. 380. 
 
 IMectings of 
 directoi's, 
 quorum, &c. 
 
 Proceedings of Directors. 
 
 10.''). The directors may meet together for the dispatch of business^ 
 adjourn, and otherwise regulate their meetings, as they think fit, and 
 may determine the quorum necessary for the transaction of business. 
 Until otherwise determined three directors shall be a quorum.
 
 POEMS. 
 
 149 
 
 As to whether a meeting is essential to the transaction of bixsiness, see infra. Form 117 
 
 p. 150, note to Clause 113. Where as above (Clause S3) it is provided that ^■ 
 
 there shall be a certain minimum number of directors, and the articles fix the 
 quorum, it seems that if by vacancies the number be reduced to less than the 
 minimum, in the absence of a clause similar to 91, nothing can be done until 
 the minimum number is made up. Kirk v. Bell, IG Q. B. 290 ; Scottish Petro- 
 Zeum Co., 23 C. Div. 113. 
 
 Where directors have authority to delegate their powers, such a delegation 
 will be presumed if one or two of the directors act for the company in a matter 
 properly within its legitimate business. Totterdell v. Fareham Brick Co., 1 C. P. 
 (574; Re Regent's Canal Co., W. N. 1807,79; Lyster's case, 4 Eq. 233; Lyon's 
 case, 35 Beav. GIG. 
 
 And a formal resolution is not in all cases necessary : "I have no hesitation 
 in saying that it was not necessary for the directors to pass any resolution in 
 order to make the acceptance of the bills binding on the company, or in saying 
 that if the directors met togethex", and the chairman, with their knowledge, 
 accepted a bill of exchange, that would bind the company. In the same way, 
 if a bill of exchange had been accepted by the chairman, without due autho- 
 rity, and the directors afterwards, knowing that the acceptance had been given 
 and dealt with, acted on the footing that the bill had been properly accepted, 
 I should not have the least hesitation in saying that the acceptance would bind 
 the company." Per Giffai-d, L. J., Re Land Credit Co., 4 Ch. 473. 
 
 lOG. A director may at any time [and tlie secretary, upon the request Director may 
 
 of a director, shall] convene a meeting of the directors. Questions siii"i"on 
 
 arising at any meeting shall he decided hy a maiority of votes, and in „ ™°' 
 
 ^ -,-. !> . .-, ^ ■ 1 1, 1 ■, . How questions 
 
 case 01 an equality or votes the chairman shall have a second or casting to ije decided, 
 vote. 
 
 107. The directors may elect a chairman of their meetings and deter- chaiiman. 
 mine the period for which he is to hold office, but if no such chairman 
 
 is elected, or if at any meeting the chairman is not present at the time 
 •appointed for holding the same, the directors present shall choose some 
 one of their number to be chairman of such meeting. 
 
 Sometimes the first chairman is specified so as to avoid discussion. 
 
 108. A meetiug of the directors for the time being at which a 
 quorum is present shall be competent to exercise all or any of the 
 authorities, powers, and discretions by or under regulations of the co for 
 the time being vested in or exercisable by the directors generally. 
 
 This clause merely expresses that which has hitherto been generally assumed, 
 but as some doubt has been raised whether the ordinary clause as to a quorum 
 £103] enables a board meeting to act in regard to important matters, it seems 
 desirable to provide as above. See New Sombrero Co. v. Erlanger, 5 C. Div. 73 ; 
 3 Ap. Cas. 1218; Alma Spinning Co., 21 C. D. 183. A director who is disquali- 
 fied cannot be counted in a quoi'um. Ibid. 
 
 109. The directors may delegate any of their powers to committees Power to 
 consisting of such member or members of their body as they think fit. •'^PPO'it *^o™- 
 
 llllttG6S llicl 
 
 Any committee so formed shall in the exercise of the powers so dele- to delegate, 
 gated conform to any regulations that may from time to time be im- 
 posed on it by the directors. 
 
 This clause is generally inserted, and ia of great practical convenience. See
 
 150 
 
 ARTICLES OF ASSOCIATION. 
 
 Form 117. J^e Taurine Co., 25 C. D. 118 ; 32 W. E. 129 ; 49 L. T. 511. It will be observed 
 that the committee may consist of one member only. As to where a delegatioa 
 will be presumed, see note to Clause 105, supra, ad fin. 
 
 Proceedings of 
 comiaittee. 
 
 "When acts of 
 directors or 
 committee 
 valid, not- 
 withstanding 
 defective ap- 
 pointment, &c 
 
 110. The meetings and proceedings of any snch committee, consisting 
 of two or more members, shall be governed by the provisions herein 
 contd for regnlating the meetings and proceedings of the directors, so 
 far as the same are apj^licaljle thereto, and are not sni:)erseded by any 
 regulations made by the directors under the last preceding clause. 
 
 111. All acts done at any meeting of the directors, or of a committee 
 of directors, or l)y any person acting as a director, shall, notwithstanding 
 that it shall afterwards be discovered that there was some defect in the 
 appointmt of such directors or persons acting as afsd, 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. 
 
 This clause is usiial. It goes rather further than s. G7 of the Act. See 
 infra, note to CI. 112. See also County Life Ass. Co., 5 Ch. 288, and other cases 
 cited in note to CI. 88. 
 
 Resohition 112. A resolution in writing, signed by all the directors, shall be as 
 
 meetinc valid. Valid and effectual as if it had been passed at a meeting of the directors 
 duly called and constituted. 
 
 This clause is now not unfrequently adopted, and is found convenient. 
 Whether in the absence of such a clause directors can act witliout a board 
 meeting has not been finally decided, but it would seem that they can. Collie's 
 Claim, 12 Eq. 258 ; but see D'Arcy v. The Tamar, cf-c, Co., L. E. 2 Ex. 158. 
 
 Remuneration 
 for extra 
 service. 
 
 112a. If any of the directors shall be called upon to perform extra 
 services or to make any special exertions in going or residing abroad, or 
 otherwise for any of the pposes of the co, the co shall remunerate the 
 director or directors so doing, either by a fixed sum or by a percentage 
 of profits or otherwise as may be determined, and such remuneration 
 may be either in addition or in sul)stitution for his or their share in the 
 remuneration above provided. 
 
 This clause is sometimes inserted. 
 
 ]\Iinntes to be 
 made. 
 
 Minutes. 
 
 [112b. Tlie directors shall cause minutes to be duly entered in books 
 provided for the ppose — 
 
 (a) Of all appointmts of officers. 
 
 {!)) Of the names of the directors present at each meeting of the 
 directors and of any committee of directors. 
 
 (r) Of all orders made by the directors and committees of directors. 
 
 {(I) Of all resolutions and proceedings of general meetings and of 
 meetings of the directors and conmiittees. 
 
 And any such minutes of any meeting of the directors, or of any 
 committee, or of the co, if pui'portiiig to be signed by the chairman of
 
 FOEMS. 
 
 151 
 
 such meetinf^, or by the chairman of tlic next succeeding meeting, Form 117. 
 shall be receivable as 2)rimd facie evidence of the matters stated in such 
 minutes.] 
 
 The above clause is sometimes inserted and may possibly be useful as a 
 reminder, but, if brevity is desired it can be omitted, for s. 67 of the Act siiffi- 
 ciently provides for these matters. The section is as follows : — 
 
 *' Every company under this Act shall cause minutes of all resolutions and 
 proceedings of general meetings of the company., and of the directors or man- 
 agers 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 pui-pose ; and 
 any such minute as aforesaid, if piirporting to be signed by the chairman of 
 the meeting at which such resolutions wei"e passed, or proceedings had, or by 
 the chairman of the next succeeding meeting, shall be received as evidence in 
 all legal proceedings ; and iintil the contrary is proved every general meeting 
 of the comi^any or meeting of directors or managers in resjject of the proceed- 
 ings of which minutes h^ive 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 dii-ectors, 
 managers, or liquidators shall be valid, notwithstanding any defect that may 
 afterwards be discovered in their appointments or qualifications." 
 
 Even apai't from the Act the clause would appear to be effectual as against 
 any member of the company although of course not against sti'angers. See 
 Honey's case, 12 W. E. 816, 994 ; 4 D. J. & S. -1-20. 
 
 Powers of Directors, 
 
 113. The managemt of the business and the control of the co shall be General 
 
 vested in the directoi*s, who, in addition to the powers and authorities i'°^^*^^'''' °* 
 ' ' ••• company 
 
 by these presents expressly conferred upon them, may exercise all such vested in 
 powers and do all such acts and things as may be exercised or done by 'l^'^ctors. 
 the CO and are not hby or by statute expressly directed or required to l)e 
 exercised or done by the co in general meeting, l)ut subject nevertheless 
 to any regulations from time to time made l)y the co in general meeting ; 
 promled that no regulation shall invalidate any prior act of the directors 
 which would have been valid if such regulation had not been made. 
 
 The above clause is usual. If it is desired to limit the authority of the 
 directors express provision is accordingly made, but subject thereto, the 
 general powers of the company are almost always given to the directors. See 
 and compare Clause 55 of Table A. 
 
 And such a general delegation is valid and effectual. Thus In re Patent File 
 Co., 6 Ch. 83, the articles authorised the borrowing of money with the sanction 
 of an extraordinary meeting of the company ; they also contained a clause 
 substantially the same as above. The directors overdrew the company's bank- 
 ing account, and being required by the bank to give security, deposited title- 
 deeds of property belonging to the company. It was held in the winding-up 
 of the company, that the mortgage was valid. James, L.J., said (inter alia,) 
 that it was " plain that, under these articles, the directors can do anytliing 
 which the comj^any could do, unless it is an act which they are specially pro- 
 hibited from doing. I can find nothing in the memorandum or articles to 
 prevent the directors from making the best terms they can with a creditor of 
 the company by selling or pledging part of the property of the company." 
 And Mellish, L.J., said (inter alia), " The articles give to the directors the
 
 1'52 AETICLES OF ASSOCIATION. 
 
 Form 117. whole powers of the company, subject to the provisions of the articles and of 
 
 the Companies Act, 1S62, and I cannot find anything either in the Act or the 
 
 articles to prohibit their making a mortgage by deposit There being 
 
 nothing in the articles to jjrohibit the giving of such seciirity, I am of opinion 
 that the company can give it as Avell for a past debt as a future one." See 
 also Collie's claim, 12 Eq. 246. 
 
 See also In re Anglo- Danubian, ^c., Co., 29 Eq. 339j the articles contained 
 express power to bori-ow (Clause 29), and also (Clause GG), a general delega- 
 tion of powers as above. The question was, whether the directors had power 
 to issue debentures at a discount. Jessel, M.E., held that they could : " There 
 is nothing in these articles to limit the amount of interest, the directors might 
 give 10 per cent., 20 per cent., or 30 per cent., and they might give that interest 
 by way of discount. If, therefore, I went on the mere words of the 29th clause, 
 I should hold this was within their powers. But, looking to the GGth clause, 
 I cannot have any possible doubt. The directors can do anything the company 
 can do ; and as there are no regulations jjrescribed by the articles or the com- 
 pany under the GGth clause, they may borrow on any terms they think fit." 
 
 The above clause is substantially the same as Clause 55 of Table A., and 
 Clause 90 of the Companies Clauses Consolidation Act, 1S45. In the recent 
 case of Hampson v. Price's Patent Candle Co., L. J. 45 Ch. 437 ; 34 L. T. 711 ; 
 24 W. E,.'754, it was held that the last-mentioned clause warranted directors 
 in granting out of the funds of the company gratuities to the workmen 
 employed. 
 
 Where the directors propose to enter into some contract, or do something 
 of which the majority disapprove, it may sometimes be practicable to make a 
 regulation under the above clause ; and if the directors threaten to disobey, 
 an action can be brought in the name of the company to restrain them. 
 
 Specific powers 11+. Without prejudice to the general jDowers conferred by the last 
 given to preceding clause, and of the other powers conferred by these presents, it 
 
 is hby expressly declared that the directors shall have the following 
 
 powers, that is to say, power : — 
 
 From what is said in the note to Clause 113, it seems that many of the 
 sub-sections of this clause might without danger be omitted. Nevertheless, it 
 is usual expressly to confer all, or some of the powers contained in them, and 
 reasons for doing so are not wanting, e. g., 1. Directors like, as far as possible, 
 to have express authority, for where express authority is given by the articles, 
 the company cannot complain that an act of the directors j)ursuant thereto is 
 ^dtra vires. Thus where the articles authorised the directors to pay 6,000L to 
 the promoters of the company, it was held, on demurrer, that payment without 
 taxation was not improper. Croskey v. Bank of Wales, 4 GifP. 314 ; 9 Jur. N. S. 
 595. See however Englefield Co., 8 C. Div. 3SS ; Marzetti's case, 28 W. E. 
 541. So where the articles authorised the directors to acquire a specific busi- 
 ness " upon such terms and under such stipulations as to guarantee or other- 
 wise as may be agreed upon," it was held that they were under no obligation 
 to consult the company in general meeting before znaking the purchase, 
 although the business was insolvent, and the purchase would involve under- 
 taking vast liabilities. Overend ^ Gurney Co. v. Gibbs, L. E. 5 H. L. 480. See 
 also Blakely Ordnance Co., 3 Ch. 159 ; Bank of Turkey v. Ottoman Bank, 14 W. 
 E. 819 ; Eley v. Positive, Sfc, Sac, 1 Ex. Div. 88. 
 
 2. It relieves the directors from responsibility, for in the absence of fraud or 
 crassa negligentia, they will not be under any personal liability to the com- 
 pany, even though in the exercise of the jjowers entrusted to them they are 
 guilty of imprudence and want of judgment, which result in a great loss to 
 the company. Overend ^' Gurney Co. v. Gibbs, ubi supra. 
 
 3. Mortgagees, vendors, and other persons dealing with a company like to 
 sec the powers of the directors in black and white.
 
 FORMS. 153 
 
 (1.) To take sucli steps as they think fit to cany into effect the sd Form 117. 
 a.^-reenit of the day of . IV) caTry "^ 
 
 agreement 
 If Clause 3, supra, is inserted, this should be omitted. j^^Q effect. 
 
 (2.) To pay the costs, charges, and expenses, preliminary and inci- To pay 
 
 dental to the iiromotion, formation, establishmt, and registra- pi'^limmary 
 
 '^ ' o expenses, 
 
 tion of the co. 
 
 Such a power will not give a promoter a right of action, in respect of jire- 
 liminary expenses, against the comjiany. Melhado v. Porto Allegre Ry. Co., 
 9 C. P. 503 ; at any rate if he is not a party to the articles. Eley v. Positive, 
 <^'c., Soc, 1 Ex. Div. 88. See also Croskey v. Bank of Wales, 4 Giff. 318, cited 
 siipra, and In re Englefield Colliery Co., 8 C. Div. 388, whex-e directors were 
 held liable for monies paid without vouchers or inquiry. 
 
 (3.) To pchase or otherwise acquire for the co any ppty, rights, or To acquire 
 privileges, which the co is authorised to acquire, at such l'^'°l'®'^'*J'- 
 price, and generally on such terms and conditions as they 
 think fit. 
 
 (4.) At their discretion, to pay for any rights ac(iuired by, or ser- To pay for 
 vices rendered to, the co, either wholly or partially in cash or IJebentureT 
 in shares, bonds, debentures, or other securities of the co, and &c. 
 any such shares may be issued cither as fully pd up or with 
 such amount credited as i)d up thereon as may be agreed 
 upon, and any such bonds, debentures, or other securities may 
 be either specifically charged upon all or any pt of the ppty 
 of the CO and its uncalled capital, or not so charged. 
 
 Debentures issued by a company under a general power of borrowing in 
 part discharge of existing liabilities are valid. Inns of Court Hotel Co., 6 Eq. 
 82. See also opinion of Blackburn, J., in Webh v. Heme Bay Commiss., L. K. 
 5 Q. B. 654. 
 
 If paid-up shares are issued under the above power, a contract in relation 
 thereto may be necessary under s. 25 of the Act of 1807. See fiu-ther, supra, 
 p. 12. 
 
 (5.) To secure the fulfilmt of any contracts or engagemts entered To secure 
 into by the co, by nitge or charge of all or any of the ppty of contracts by 
 the co and its unpd capital for the time being, or in such * ° ' 
 other manner as they may think fit. 
 
 (6.) To appoint, and at their discretion remove or suspend, such To appoint 
 managers, secretaries, officers, clerks, agents, and servants for officers, &c. 
 permanent, temporary, or special services, as they may from 
 time to time think fit, and to determine their duties and fix 
 their salaries or emolmnts, and to require security in such 
 instances and to such amount as they think fit. 
 
 (7.) To accept from any member, on such terms and conditions as To accept 
 
 shall be agreed, a suiTcnder of his shares or stock or any part ^iiTender of 
 , sbares. 
 
 thereof. 
 
 A power to acce^st surrenders is valid, and a surrender which does not amount 
 to a reduction of capital is not open to any objection, e. g., if a lOL share with
 
 154 
 
 ARTICLES OF ASSOCIATIOX. 
 
 Form 117. 
 
 To appoint 
 trustees. 
 
 To liring and 
 defend actions-', 
 &c. 
 
 To refer to 
 arbitration. 
 
 To give 
 receiptB. 
 
 To act for 
 company in 
 bankruptcy. 
 
 To appoint 
 attornies. 
 
 To invest 
 monies. 
 
 5?. paid up be surrendered for two shares of 5L each, credited with 21. 10s. 
 paid up on each share. Teasdale's case, 9 Ch. SI. But if the surrender would 
 amount to a reduction of cajjital it woidd seem that it is only valid if (1) it is 
 bom'i fide for the benefit of the company, or (2) is carried into effect as a reduc- 
 tion of capital in accordance with the Act of 1867. Hope v. International 
 Financial Society, -J. C. Div. 327 ; In re Dronfield Co., 17 C. Div. 76, in which 
 case it was held that a company might even pay money upon a surrender where 
 it was for the benefit of the company. See supra. Form 66, and note at end of 
 this form. 
 
 (8.) To appoint any i)erson or persons to accept and hold in trust 
 for the CO any ppty l)elonghig' to the co, or in which it i.s 
 interested, or for any otlier pposes, and to execute and do all 
 such deeds and things as may be reipiisite in relation to any 
 such trust. 
 
 (9.) To institute, coiiduct, defend, compound, or abandon any legal 
 proceedings hy and against the co, or its officers, or otherwise 
 concerning the affairs of the co, and also to compound and 
 allow time for paymt or satisfou of any debts due, and of any 
 claims or demands hy or against the co. 
 
 Every company has an implied power to compromise disputes. Bath's case, 
 8 C. Div. 331. Such a clause does not authorise directors to pay costs of petition 
 to wind up the company presented by themselves. Smith v. Duke of Manchester, 
 24 C. D. 611; 32 W. E. 83. 
 
 (10.) To refer any claims or demands l)y or against the co to arbitra- 
 tion, and observe and perform the awards. 
 
 As to arbitration, see fui-ther, supra, p. 21. 
 
 (11.) To make and give receipts, releases, and other discharges, for 
 money payable to the co, and for the claims and demands of 
 the CO. 
 
 And such receipts will be effectual, even though the acting directors are not 
 directors tie jure. Mahoney v. East Hohjford Mining Co., L. E. 7 H. L. 869. 
 
 (12.) To act on behalf of the co in all matters relating to bankrupts 
 and insolvents. 
 
 (13.) From time to time, to provide for the managemt of the affairs of 
 tlic CO abroad in such manner as they think lit, and in parlar 
 to appoint any persons to be the attoruies or agents of the 
 CO witli such powers (including power to sub-delegate) and 
 upon such terms as may be thought fit. 
 
 The above should be inserted ■where the company is likely to carry on lousi- 
 ness abroad, or Form 136, infra, may be used. As to sub-delegation, see supra. 
 Clause 104, and Stuart v. Norton, 9 W. E. 320. 
 
 (14.) To invest and deal with any of the monies of the co not imme- 
 diately required for the j)poscs thereof, upon such securities 
 and in such manner as they may think fit, and from time to 
 time to vary or I'ealisc such investmts. 
 
 A power to invest in securities does not warrant an application for a number
 
 FOEMS. ]55 
 
 of shares in a proposed company with a view to promoting it. Joint-Stock Dis- Form 117. 
 count Co. V. Broicn, 3 Eq. 139 ; 8 Eq. 381. — " — ' • 
 
 (15.) To execute in tlie name and on behalf of the co in favour of To give 
 
 1 • 1 1 J. J. security liy 
 
 any director or otlier person who may incur or be about to ^^^^ ^f 
 incur any personal liability, whether as principal or surety, iudemnity. 
 for the benefit of the co, such mtges of the co's ppty (present 
 and future) as they think fit, and any such nitge may contain 
 a power of sale and such other powers, covenants, and pro- 
 visions, as shall be agreed on. 
 (IG.) To give to any officer, or other person employed by the co, a Togiveper- 
 commission on the profits of any parlar business or trans- j^rect°or Ic 
 action, or a share in the general profits of the co, and such 
 commission, or share of profits, shall ])e treated as pt of the 
 working expenses of the co. 
 
 An interest in profits is often found to render the services of an agent more 
 beneficial to his emiDloyer. Apart from a special power, a person standing in a 
 fiduciary relation to the company could not be given such an interest by the 
 board. 
 
 (17.) Before recommending any dividend, to set aside, out of the To estabhsli 
 profits of the co, such sum as they think proper as a reserve ^^^^^'^'^ ^^^'^' 
 fimd to meet contingencies, or for etpialising dividends, or 
 for repairing, improving, and maintainiug any of the ppty of 
 the CO, and for such other pposes as the directoi-j- shall in 
 their absolute discretion think conducive to the interests of 
 the CO ; and to invest the several sums so set aside upon such 
 investmts as they may think fit, and, from time to time, to 
 deal with and vary sucli investmts, and dispose of all or any 
 pt thereof for the benefit of the co, and to divide the reserve 
 fund into such special funds as they think fit. 
 
 Where the regulations do not provide for the retention of any part of the 
 profits by way of reserve, the articles can no doubt be altered so as to give the 
 power. Binney v. Ince Hall Co., 35 L. J. Ch. 363. And prinvi facie there is 
 nothing to compel a company to divide the whole of its profits, though the re- 
 gulations might be so framed. Stringer's case, 4 Ch. 49i. 
 
 Of course the above power does not relieve the company from its obligation 
 to provide for depreciation, and otherwise keep its capital intact. Davison v. 
 Gillies, 16 C. D. 317; Guiness v. Land Corporation of Ireland, 22 C. Div. 319; 
 and infra, p. 169. 
 
 Where the regulations appropriate the reserve fund to specific purposes, they 
 can be altered. ^Yal'ker v. London Tramways Co., 12 C. D. 705. 
 
 (18.) From time to time to make, vary, and repeal byelaws for the May make 
 regulation of the business of the co_, its officers and servants, ^J'*^'^^^^- 
 or the members of the co, or any section thereof. 
 
 Persons dealing with a company are deemed to have notice of the memoran- 
 dum and articles of association, but not of byelaws made by the directors. 
 Moyal Bank of India's case, 1 Ch. 252.
 
 166 
 
 Form 117. 
 
 May make 
 contracts, &c. 
 
 ARTICLES OF ASSOCIATION. 
 
 (10.) To enter into all sucli negotiations and contracts, and rescind 
 and vary all such contracts, and execute and do all such acts, 
 deeds, and things in the name and on behalf of the co as they 
 may consider expedient for or in relation to any of the matters 
 afsd, or otherwise for the pposes of the co. 
 
 There can be little doubt that such a clause as above is a sufficient authority 
 to the directors to vary contracts expressly adopted by the articles. See and 
 consider Sahlgreen ^ Carrall's case, 3 Ch. 323. 
 
 irst solicitor. [llici. MeSSrS. 
 
 Solicitors. 
 of , shall be solors of the co.] 
 
 In a recent case the articles of the company provided that, " Mr. A. B., of 
 
 , shall be the solicitor of the comi^any, and shall transact all the legal 
 
 business of the company, including parliamentary business, for the iisual and 
 accustomed fees and charges, and sliall not be removed from liis office unless 
 for misconduct." Mr. A. B. was employed by the company after its corporation, 
 but there was no evidence of any agreement to employ him on the terms men- 
 tioned in the articles. He was not a subscriber to the articles, but he was a 
 member of the company. It was held that the articles did not constitute a 
 contract between the company and Mr. A. B., and that he could not sue the 
 company for refusal to emiiloy him. Eley v. Positive Ass. Soc, 1 Ex. Div. 20 ; 
 S. C. on Apj3. 88. In the Exchequer Division the Court was also of opinion that 
 the employment was intended to be permanent, and that the articles were not 
 a sufficient agreement in writing within section 4 of the Statute of Frauds. 
 
 Secretary. 
 
 First secretary. [1146. Mr. , of , shall hc secretary to the co.] 
 
 Substitute. [114c. The directors may appoint a temporary substitute for the 
 
 secretary, Avho shall, for the pposes of these presents, be deemed to be 
 
 the secretary.] 
 
 Custody of 
 seal. 
 
 The Seal. 
 
 [IIT). The directors shall pro^•ide for the safe custody of the seal, and 
 the seal shall never be used except by the authority of the directors 
 previously given and in the presence of two directors at the least, who 
 shall sign every instrumt to which the seal is affixed, and every such 
 instrumt shall be countersigned l)y the secretary or some other person 
 ajipointed by the directors.] 
 
 A clause as above is sometimes inserted, and when there is such a provision 
 everyone dealing with the company is deemed to have notice of it, Vjut such a 
 person is not bound to ascertain that de facto directors have been duly ap- 
 pointed. In re County Life Soc, 5 Ch. 288 ; Mahony v. East Holyford Mining 
 Co., L. R. 7 H. L. 809. 
 
 In case foreign or colonial business is in contemplation. Form 130 can be 
 inserted here.
 
 FORMS. 157 
 
 Form 117. 
 Dividends, — — — -- 
 
 116. Sul)ject to the rights of members entled to shares issued upon Riglit to 
 special conditions, the profits of the co sliall be divisil)le among the ^^^° ^' 
 memljers in proportion to the amount i)d up on the shares held by 
 
 them respively. Provided, nevertheless, that where capital is pd up 
 in advance of calls upon the footing that the same shall carry interest, 
 such capital shall not, whilst carrying interest, confer a right to partici- 
 pate in profits. 
 
 Table A. provides that dividends are to be paid to the members " in propor- 
 tion to their shares." This means in proportion to the nominal amount of the 
 capital held by each, not to the amount paid up. Oakbank Oil Co., 8 App. Cas. 
 65. 
 
 Accordingly a .£10 share with ^£1 j^aid up will take as much as a ^10 fully j^aid- 
 up share. But many persons consider such a mode of division inequitable, and 
 insist on a provision as above [Clause 116]. This clause, however, does not 
 appear altogether fair, for it must be borne in mind that the company trades to 
 some extent on the credit of its uncalled capital, and why should the share- 
 holders who supply that credit get no reward ? especially as in the event of the 
 company being wound up, they will, unless the regulations otherwise provide, 
 be liable to contribute to the losses in proportion to the nominal amount of the 
 shares held by them. Maude's case, 6 Ch. 51, and see the judgments in The 
 Oakbank Co. v. Crum, ubi supra. 
 
 Accordingly it is occasionally provided that " the profits of the company in 
 each year shall be applicable to the payment of dividend at the rate of 5 p. c. 
 p. a. on the paid-up capital, and the sui-plus shall be divided among the 
 members in proportion to their shares." 
 
 The regulations of some companies make no provision as to the proportions 
 in which members are to participate in dividends. In these cases it would 
 seem that they are entitled to participate in proportion to their shares. Wil- 
 kinson V. Cummings, II Hare, 37. And consider Maude's case, iibi supra. 
 
 Where there are different classes of shares in the original capital the clause 
 will be modified accordingly. See Forms 126 and 127, infra. 
 
 117. The CO in general meeting may declare a dividend to be paid to Declaration of 
 the members according to their rights and interests in the profits. dividends. 
 
 Very commonly it is provided that "the directors may, with the sanction of 
 the company in general meetings," declare dividends, but the general practice 
 is for the meeting to declare the dividend, and it therefore seems better to 
 frame the clause as above. 
 
 [117 a. Xo larger dividend shall be declared than is recommended by Restriction ou 
 
 amount o" 
 dividend. 
 
 the directors (but the co in general meeting may declare a smaller divi- *™°"'^* °^ 
 
 dend).] 
 
 The above clause is commonly used, sometimes with, sometimes without the 
 words in brackets. 
 
 118. Xo dividend shall be payable except out of the profits arising Dividend to 
 
 from the business of the co. ^^ P^''^ "T* °^ 
 
 pronts only. 
 
 As to this clause, see note, infra, p. 168. 
 
 110. "Where a share is issued after tlio commencemt of any financial When partici-
 
 15S 
 
 AETICLES OF ASSOCIATION. 
 
 Ijation in 
 profits to 
 commence, 
 
 Form 117. year it shall, unless otherwise provided by tlic terms of issue, rauk pari 
 2)assu Avitli previously issued shares as regards any dividend subsequently 
 declared in respect of such year. 
 
 This clause would appear only to exj^ress what would otherwise be implied, 
 but it may be useful as a reminder that if shares are not to participate fully in 
 the accruing dividend provision should be made accordingly, e.g., let the pro- 
 spectus state that " The shares will rank for dividend as from the of 
 
 next [or last]." 
 
 What to he [120. Tlic dcclon of the directors as to the amount of the net 
 
 profits ^^ profits of the co shall be conclusive.] 
 
 This clause is common, and is found useful : it does not enable the directors 
 to declare profits where in reality there are none. 
 
 Interim 
 dividends. 
 
 Debts may 
 deducted. 
 
 Dividend may 
 be credited on 
 shares. 
 
 121. The directors may from time to time pay to the members [on 
 account of the next forthcoming dividend] such interim dividends as in 
 their judgmt the position of the co justifies. 
 
 The above clause is now very commonly inserted. It is, of course, liable to 
 abuse. The words in brackets are sometimes omitted. 
 
 122. Tlie directors may retain any dividends on Avliich the co has <a 
 lien, and may apply the same in or towards satisfon of the debts, liabili- 
 ties, or engagemts in respect of which the lien exists. 
 
 123. A general meeting declaring a dividend may by subsequent reso- 
 lution authorise the directors to ap)ily the same or any part thereof in 
 paying up j^/"0 tanto the capital uncalled on the shares in respect of which 
 the dividend is declared, and the directors may give effect to such reso- 
 lution accordingly, but any member whose shares are fully pd up shall 
 be entitled to be pd his proportion of the dividend in cash. 
 
 A clause as above is not uncommonly inserted. It has not been settled 
 whether it is valid, regard being had to s. 25 of the Act of 1867 [supra, p. 12]. 
 But it would seem to amount to a cash transaction. It is clear that in the 
 absence of such a clause a shareholder might authorise a company to retain any 
 money due to him for dividends or otherwise, and to pay up his shares there- 
 with, and that such payment would be equivalent to cash, and, this being so, 
 thei-e seems no reason why he should not empower a general meeting to give 
 the authority. See Ranee's case, 6 Ch. 101-, where a dividend paid by crediting 
 the amount on the shares was treated as equivalent to cash. 
 
 And sometimes the following is also used : — 
 
 12.3a. Any general meeting declaring a dividend, may by subsequent resolu- 
 tion authorise the directors to pay such dividend wholly or in jrt by the dis- 
 tribution of specific assets, and in parlar of pd-up shares in the co's cajjital, 
 or stock, or debentures of any other co, or ptly in one mode and ptly in the 
 other, and the directors may, if they think fit, give effect to such resolution, 
 and, where any difficulty arises in regard to the distribution, they may settle 
 the same as they think expedient, and in parlar may issue fractional certifi- 
 cates, and may fix the value for distribution of such specific assets, or any pt 
 thereof, and may determine that cash paymts shall be made to any members 
 upon the footing of the value so fixed, in order to adjust the rights of all 
 parties, and may vest any such specific assets in trustees upon such trusts for 
 the persons entled to the dividend as may seem expedient to the directors. 
 Where requisite, a proper contract shall be filed in accordance with s. 23 of the 
 Companies Act, 18G7.
 
 FORMS. 159 
 
 It is sometimes deemed expedient to insert a claiise as above, and see infra Form 117. 
 
 additional words. In the absence of express authority a company cannot pay — 
 
 dividends by the issue of shares in its own capital. " If . . . . the whole of 
 the shareholders are not willing to take them in specie, it appears to me that 
 every shareholder in the company who is inclined has the clearest right to 
 have them turned into money, and to have the money rateably divided among 
 the shareholders." Per Cairns, L. J., Hoole v. Great Western Railway Co., 3 Ch. 
 262. And the same rule appears to apply to other specific assets, such as shares 
 in other companies. 
 
 The decision in the case above mentioned is at variance with the view 
 expi'essed in Barton's Trusts, 5 Eq. 2 14, biit see contra. In re Hoplcin's Trusts, 
 18 Eq. 700, and Oakhank Co. v. Crum, 8 Ap. Cas. 71, showing that a company 
 has no power whatever to pay dividends except as authorised by its regulations. 
 
 Where paid-up shares in a company's capital are issued imder a clause as 
 above it may be prudent to file a contract, though probably not necessary. Re 
 Barrow-in-Furness Co., l-A C. Div. 400. 
 
 Even where the articles do not contain any express power as above it may 
 sometimes be possible to secure the desired result indirectly, e.g., let the meet- 
 ing which sanctions the dividend also sanction the issue of new shares to an 
 equivalent amount ; let the directors allot (without application) the shares in 
 the proper proportions, and send out the dividend warrants, with notice of 
 allotment, and request the return of the warrant with an authority to apply the 
 amount in paying up the shares. This has been done in several cases by 
 flourishing companies, and the shareholders have all assented. 
 
 124. A transfer of shares or stock shall not pass the right to any divi- 
 dend declared thereon before the registration of the transfer. 
 
 By virtue of the Apportionment Act, 1870 (.3.3 & 34 Vict. c. 35), all dividends 
 (see extensive definition in s. 5) and other periodical payments in the nature of 
 income are to be considered as accruing from day to day, and are to be appor- 
 tionable accordingly, and (s. 5) are to be deemed to have accrued during and 
 within the period for or in respect of which the payment of the same shall be 
 declared or expressed to be made. 
 
 The Act applies to a specific legacy of shares. Pollock v. Pollock, 18 Eq. 329 ; 
 Carr v. Griffith, 12 C. D. 655. But a bequest of the shares and dividends may 
 exclude the Act. Jones v. Ogle, 8 Ch. 192. 
 
 As between tenant for life and remainderman the tenant for life takes all 
 dividends and bonuses declared during his life. Price v. Anderso7i, 15 Sim. 473 ; 
 Re Hopkin's Trusts, 18 Eq. 696 ; Preston v. Melville, 16 Sim. 163. And the Act 
 may give his representatives a further right as against the remainderman. 
 
 It has however been held that where a dividend is paid in shares it is to be 
 considered capital. Barton's Trusts, 5 Eq. 544. But that case requires recon- 
 sideration with reference to the above Act and to Hoole v. Great Western Ry. 
 Co., Re Hopkin's Trusts, and Oakbank Co. v. Crum, icbi supra. 
 
 To avoid question it may be well to add to cl. 123a the words " The payment 
 of a dividend in specie shall not alter or affect the rights of the persons who 
 would have been entitled thereto if paid in cash." 
 
 As to the meaning of "bonus" in a settlement. Hollis v. Allan, 14 W. E. 
 980. W. N. 1866, 291. 
 
 According to Black v. Homersham, 4 Ex. D. 24, a purchaser of shares is 
 entitled, without apportionment, to all dividends declared after the contract 
 for sale ; but the Act was not referred to. 
 
 125. The directors may retain the dividends jiayable upon shares or Power to re- 
 stock in respect of Avhich any person is, nnder the transmission clause t-'ii" ^^i^idends 
 
 supra, Clause 38], entled to become a mem))er, or which any person infant, 
 under that clause is entled to transfer, until such person shall become a '"^^ti^' ^'^■ 
 member in respect of such shares or stock, or shall duly transfer the same.
 
 160 
 
 AETICLES OP ASSOCIATION. 
 
 Form 117. 
 
 Dividend to 
 joint holders. 
 
 Notice of 
 dividend. 
 
 Unclaimed 
 
 dividends. 
 
 126. In case several persons are registered as the joint holders of any 
 share or stock, any one of snch persons may give effectual receipts for 
 all dividends and paymts on account of dividends in respect of snch 
 share or stock. 
 
 127. Notice of the declon of any dividend, whether interim or other- 
 wise, shall be given [by advertisemt, and also] to the holders of 
 registered shares and registered stock in manner hereinafter provided. 
 
 [128. All dividends unclaimed for one year after having been declared 
 may be invested or otherwise made use of by the directors for the 
 benefit of the co until claimed, and all dividends unclaimed for five 
 years after having been declared may be forfeited by the directors for 
 the benefit of the co. No dividend shall l^ear interest as against the co.] 
 
 The committee of the Stock Exchange object to the above clause in so far 
 as it provides for the forfeiture of dividends unclaimed for five years, and ac- 
 cordingly if a quotation is desired it should be modified or omitted. Upon the 
 whole it seems best to omit it, for the earlier part of the clause might be con- 
 sidered to create an express trust so that the company would remain liable for 
 an indefinite period, whereas if the clause is omitted it may be that the com- 
 pany is only liable for six years ; for although the dividend is payable under 
 the articles which are for some purposes equivalent to a deed ^siipra, p. 112] 
 it is not necessarily a specialty debt. As to this see Holland v. Holland, 4 Ch. 
 ■4-19 ; Lewin, 183 ; and see Talbot v. Earl of Shrewsbury, 16 Eq. 28 ; see also sec- 
 tion 16 of the Act [supra, p. 112], which only appears to bind the company in a 
 qiialified manner. 
 
 Accounts to 
 be kept. 
 
 Where to be 
 kept. 
 
 Inspection 
 members. 
 
 Accounts. 
 
 129. The directors shall cause true accounts to be kept of the sums of 
 money received and expended by the co, and the matters in respect of 
 which such receipt and expenditure takes place, and of the assets, credits, 
 and liabilities of the co. 
 
 130. The books of account shall be kept at the registered office of the 
 CO, or at such other place or places as the directors think fit. 
 
 A clause in the articles may prevent the creation of a lien on the books. 
 Ca'pital Fire, 24 C. Div. 408 ; 49 L. T. 697 ; 32 W. E. 260. 
 
 131. The directors shall from time to time determine whether and to 
 what extent, and at what times and places, and under what conditions or 
 regulations, the accounts and books of the co, or any of them, shall be 
 open to the inspection of the members ; and no member shall have any 
 right of inspecting any account or book or documt of the co, except as 
 conferred by statute or authorised by the directors, or by a resolution of 
 the CO in general meeting. 
 
 The above clause is not uncommonly used. Few companies allow members 
 free access to the books. 
 
 Where a right of inspection is given as regards " the books, wherein the pro- 
 ceedings of the company are recorded," a member has no right to inspect the 
 minute book or proceedings of directors. Reg. \.Mariquita,S(c., Co., 1 E. & E.289. 
 
 See also Metropolitan, c^c. Bank, Ex parte Davis, 16 W. E,. 668. 
 
 A right of inspection given by the articles ceases when the voluntary wind- 
 ing up begins. Yorkshire, ^c., Co., 9 Eq. 650 ; 18 W. R. 541. 
 
 Where a winding-up order has been made, s. 156 of the Act applies, under
 
 FOEMS. 161 
 
 whicli the Court lias express power to permit inspection by creditors or con- Form 117. 
 tributories. See Buckley, 2t)2. 
 
 Table A. provides as follows : — 
 
 " The books of the company shall be kept at the registered office of the com- 
 pany, and, subject to any reasonable restrictions as to time and manner of 
 inspecting the same, that may be imposed by the company in general meeting, 
 shall be open to the inspection of the members duiing the hours of business." 
 
 See also Table A., Clause VS. 
 
 132. At the ordinary meeting in every year the directors shall lay Annual state- 
 before the CO a statemt of the income and expenditm'e, and a balance- balance-sheet, 
 sheet, containing a summary of the ppty and liabilities of the co made 
 up to a date not more than four months before the meeting, from the 
 time when the last preceding statemt and balance-sheet were made, or, in 
 the case of tlie first statemt and balance-sheet, from the incorporation of 
 the CO. 
 
 13o. Every such statemt shall be accompanied by a report of the direc- Annual report 
 tors as to the state and condition of the co, and as to the amount which they ° ^I'^ectors. 
 recommend to be pd out of the profits by way of dividend or bonus to 
 the members, and the amount (if any) which they propose to carry to 
 the reserve fund, according to the provisions in that behalf hinbefore 
 contd ; and the statemt, report, and balance-sheet shall be signed by two 
 directors, and countersigned by the secretary. 
 
 By 24 & 25 Vict. c. 96, s. 84, directors keeping fraudulent accounts, or pub- 
 lishing fraudulent statenients, are guilty of a misdemeanour. 
 
 134. A printed copy of such balance-sheet and report shall, seven Copy to be 
 days previously to the meeting, be served on the registered liolders of j^gj^^^^j.^ 
 shares in the manner in which notices are hereinafter directed to be 
 served. 
 
 Sometimes it is provided instead of this that the balance-sheet shall lie for 
 inspection at the office. 
 
 Audit. 
 
 135. Once at least in every year, the accounts of the co shall be Accounts to 
 examined, and the correctness of the statemt and balance-sheet ascer- ^^,^^^111^ 
 tained by one or more auditor or auditors. 
 
 The auditors are agents of the company, but constructive notice of facts 
 coming to their knowledge is not imputed to the shareholders. Sj^ctchnoM v. 
 Evans, L. E. 3 H. L. 171, 196, 236. 
 
 136. The first auditor or auditors shall be appointed by the directors ; Appointment 
 subsequent auditors shall be appointed by the co at the ordinary meeting ^^'^ remunera 
 in each year. The remuneration of the auditors shall be fixed by the co auditors. 
 
 in general meeting. Any auditor quitting office shall be eligible for re- 
 election. 
 
 Sometimes the first auditors are appointed by the articles. 
 
 M
 
 162 
 
 ARTICLES OF ASSOCIATION. 
 
 Form 117. 
 
 Provision for 
 case of single 
 auditor. 
 
 Who ineligible 
 as auditors. 
 
 Casual 
 A'acancy. 
 
 Auditors to 
 report on 
 annual state- 
 ment and 
 balance-sheet. 
 
 1P>7. If one auditor only is appointed, all the provisions herein 
 contd relating- to auditors shall apply to him. 
 
 188. The auditors may he members of the co, hut no person shall l)e 
 eligible as an auditor who is interested, otherwise than as a member of 
 the CO, in any transaction thereof, and no director or other officer shall 
 be eligible during his continuance in office. 
 
 139. If any casual vacancy occurs in the office of auditor, the 
 directors shall forthwith fill up the same. 
 
 This is the usual clause. Compare with Table A. Clauses 90 and 91. 
 
 140. The auditors shall be supplied with copies of the statemt of 
 accounts and balance-sheet intended to be laid before the co in general 
 meeting seven days at least before the meeting to which the same are to 
 be submitted, and it shall be their duty to examine the same with the 
 accounts and vouchers relating thereto, and to report to the co in general 
 meeting thereon. 
 
 The above is a common provision and leaves the aiiditors to settle the nature 
 of their report. In many cases an auditor merely certifies that the balance- 
 sheet accords with the books, e.g., " We have examined the above balance-sheet 
 and compared the same with the books, and find the same correct." Such a 
 certificate is of little or no value. Sometimes the form prescribed for banks by 
 the Companies Act, 1879, is adopted, viz., " We have examined the above ac- 
 count and certify that in our opinion it is a full and fair balance-sheet properly 
 drawn n-p, so as to exhibit a true and correct view of the state of the company's 
 affairs as shown by the books of the company." But having regard to the concluding 
 words, this form is not satisfactory, e.g., it affords no assurance that the items 
 entered in the balance-sheet as assets are of the value there placed on them. 
 
 Sometimes, as in Clause 94- of Table A., the auditors are required in their 
 repoi't to " 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 affairs," and a certificate so framed is of much greater value, but 
 even where it is so provided the auditor usually qualifies his opinion by refer- 
 ence to the books or othei-wise. 
 
 It must be admitted that the present system of auditing the accounts of 
 public companies is wholly unsatisfactory. Shareholders generally assume that 
 the dvities of an auditor are well defined, whereas the contrary is the fact. It is 
 also assumed that their duties are easily discharged, and accoi'dingly that a small 
 remuneration is sufficient compensation, and, further, that the form of the 
 auditors' certificate is immaterial. In the result aiiditors generally take care 
 that their labours shall be proportioned to their remuneration and shelter 
 themselves from resjwnsibility under an empty certificate. 
 
 Inspection of Ml. The auditors shall at all reasonable times have access to the 
 
 books by ])oolvs and accounts of the co, and they may in relation thereto examine 
 
 auditors. -^ '' 
 
 the directors or other officers of the co. 
 
 "When ac- 142. Every account of the directors, when audited and approved by a 
 
 counts to be ^ l- ^ ^^ ^ i • i. i t 
 
 deemed finally .-'^-'nc^'f I meetnig, shall be conclusive, except as regards any error dis- 
 settled. covered therein within three months next after the approval thereof. 
 
 Whenever any such error is discovered within that period, the account 
 shall forthwith Ije corrected and thenceforth shall be conclusive.
 
 FORMS. 163 
 
 Form 117. 
 
 Notices. 
 
 143. A notice may be served by the co upon any member whose How notices 
 registered place of address is in the United Kingdom, either personally ^^ u,eiuV,erL 
 or by sending it through the post in a pre-pd letter, addressed to such 
 member at his registered place of address. 
 
 The register of members, to be kept pursuant to Section 25 of the Act, is to 
 contain {inter alia) the addresses of the membez'S. 
 
 As to notices to the company, the Act provides : How notices 
 
 Section 62. — Any summons, notice, order, or other document, required to be ^° "^ given ta 
 served upon the company, may be served by leaving the same, or sending it 1' >• 
 through the post in a pre-paid letter, addressed to the company, at their regis- 
 tered office. 
 
 Section 63. — Any document to be served by post on the company, shall be 
 posted in such time as to admit of its being delivered in the due course of de- 
 livery, within the period (if any) prescribed for the service thereof ; and in 
 proving service of such document, it shall be sufficient to prove that such 
 document was properly directed, and that it was put as a pre-paid letter into 
 the Post-office. 
 
 Section 64. — Any summons, notice, order, or proceeding, requiring authenti- Authentica- 
 cation by the company, may be signed by any director, secretary, or other tion of notices 
 authorised officer of the company, and need not be under the common seal of ^ companj . 
 the company, and the same may be in writing or in print, or partly in writing 
 and partly in print. See also s. 41 of the Act. 
 
 The above ss. G2 — 64, so far as they relate to notices, are sometimes inserted 
 as clauses in the articles. 
 
 144. Each holder of registered shares, whose registered place of Members 
 address is not in the United Kingdom, may from time to time notify in '^^''j! j^ 
 writing to the co, an addi-ess in the United Kingdom, which shall ])e 
 deemed his registered place of address within the meaning of the last 
 preceding clause. 
 
 It is generally deemed expedient to make special provision for the service of 
 notices on members resident abroad. But it may be that such members are not 
 entitled to notice. Union Hill Silver Co., 22 L. T. 400. 
 
 14.5. As regards those members who have no registered address in the Notices where 
 United Kingdom, a notice posted up in the ofRce shall be deemed to be °° ^*^'^^'^-'^^- 
 Avell served on them at the expiration of twenty-four hours after it is so 
 posted up. 
 
 Sometimes it is provided that in such case a member shall not be entitled to 
 any notice. 
 
 146. The holder of a share warrant shall not, unless otherwise ex- No notice to 
 pressed therein, be entled in respect thereof to notice of any general f;i°n'ie warrants 
 meeting of the co. 
 
 The holder of a share warrant is generally deprived of the right to notice of 
 general meetings. Sometimes he is permitted to appoint an address for service, 
 but the objection is, that the company will have no means of ascertaining when 
 the share warrant has been parted with, and may, unknowingly, continue to 
 send notices to a person who has ceased to be a member. If the holder of a 
 
 M 2
 
 164 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. share warrant is to be entitled to notice, the usnal i^lan is to provide that it 
 shall be given by advertisement. In such case;, the following clause will })e in- 
 serted instead of the above : — 
 
 " Any notice required to be given by the company to the holder of share 
 warrants shall be given by advertising the same once in a London daily 
 newspaper." 
 
 The objection which prevents the general adoption of the plan is the publi- 
 city ; companies do not like to publish notice of their private affairs. 
 
 The following clause is sometimes adopted, and is not open to the same ob- 
 jection : — 
 
 " The holder of a share warrant may from time to time notify in writing to 
 the company some place in England to be called his address for service, and 
 notice of any general meeting convened within the six months next following 
 such notification shall (unless the meeting is convened by advertisement) be 
 served on the holder of such share warrant by sending it through the post in a 
 pre-paid letter addressed to him at his address for service. But save as afore- 
 said the holder of a share warrant shall not be entitled to notice of any general • 
 meeting." 
 
 Whcu notice 
 uiay be given 
 by advertise- 
 ment. 
 
 How to be 
 advertised. 
 
 Notice to joint 
 holders. 
 
 When notice 
 by post deemed 
 to be served. 
 
 Transferees, 
 &c., bound by 
 prior notices. 
 
 Notice valid 
 though mem- 
 ber deceased. 
 
 147. Any notice required to be i^iven by the co to the members, or 
 any of them, and not expressly provided for by these presents, shall be 
 sufficiently given if given by advertisemt. 
 
 148. Any notice required to be, or which may be given by advertisemt, 
 shall be advertised once in two London daily newspapers. 
 
 149. All notices shall, with respect to any registered shares to which 
 persons are jointly eutled, be given to whichever of such persons is 
 named first in the register, and notice so given shall be sufficient notice 
 to all the holders of such shares. 
 
 150. Any notice sent l)y post shall be deemed to have been served at 
 the expiration of twenty-four hours after the letter containing the same 
 is posted, and in proving such service it shall be sufficient to prove that 
 the letter containing the notice was j^roperly addressed and put into the 
 post-office. 
 
 It is not necessary to follow literally the address on the register, provided 
 that a substantially accurate designation of the place of abode is given. Liver- 
 ■pool, kc, Co. V. Houghton, 2-3 W. E. 93. 
 
 [150a. Eveiy person who, by operation of law, transfer, or other 
 means whatsoever, shall become entled to any share, shall be bound by 
 every notice in respect of such share or stock which, previously to his 
 name and addi'ess being entered on the register, shall be duly given to 
 the person from whom he derives his title to such share or stock.] 
 
 The above clause is not uncommon, but it is not by any means essential, and 
 may be omitted if brevity is desired. It does not appear in Table A., nor in 
 the Companies Clauses Consolidation Act, 1815. 
 
 [150/;. Any notice or document delivered, or sent by post to or left at 
 the registered address of any member in psuauce of these presents, shall, 
 notwithstanding such member be then deceased, and whether or not the 
 CO have notice of his decease, be deemed to have been duly served in 
 respect of any registered shares, whether held solely or jointly with other
 
 FOEMS. 
 
 1G[ 
 
 persons by such mcmljer, until some other pcrs<^n be registered in his Form 117. 
 
 stead as tlic holder or joint holder thereof, and such service shall for all 
 
 pposes of these presents be deemed a sufficient service of such notice or 
 documt on his or her heirs, exs, or ads, and all persons, if any, jointly 
 interested with him or lier in any such share,] 
 
 This clause is sometimes inserted, and is found useful. 
 
 [loOc. The signature to any notice to be given by the co may be How notice to 
 ■written or printed.] ^-"^ signed. 
 
 The above is occasionally inserted. 
 
 A person may sign by stamping a fac-simile of his autograph. Bennett v. 
 Bncmfit, L. E. 3 C. P. 28. 
 
 151. Where a given number of days' notice, or notice extending over How time to 
 any other period, is required to be given, the day of service shall, but ^® counted, 
 the day upon which such notice will expire shall not, Ije included in such Healey, 278. 
 number of days or other period. 
 
 Arbitration. 
 
 [lolrt. Whenever any difference arises between tlie co, on the one hand, Differences to 
 and any of the members, their exs, ads, or assigns, on the other hand, refen-ed. 
 touching the true intent or construction, or the incidents or consequences 
 of these presents, or of the statutes, or touching anything then or 
 thereafter done, executed, omitted, or suffered in psuance of these pre- 
 sents, or of the statutes, or touching any breach, or alleged breach of 
 these presents, or any claim on account of any such breach or alleged 
 breach, or otherwise relating to the premes, or to these presents, or to 
 any statute affecting the co, or to any of the affairs of the co, eveiy such 
 difference shall be referred to the decision of an arbitrator, to be ap- 
 pointed by the parties in difference, or if they cannot agree upon a 
 single arbitrator, to the decision of two abitrators, of whom one shall be 
 appointed by each of the parties in difference, or an umpire to be ap- 
 pointed by the two arbitrators. The costs, &c., supra, p. 21.] 
 
 An arbitration clause is sometimes inserted, but, as a general rule, it may be 
 omitted with advantage. See, further, supra, p. 21, Form 9. 
 
 Winding Up. 
 
 152. If the CO shall be wound up, and the surplus assets shall be in- Distribution of 
 sufficient to repay the whole of the pd-up capital, such surplus assets ^^^ets. 
 shall be distributed so that, as nearly as may be, the losses shall be 
 borne by the members in proportion to the capital pd up, or which ought 
 to have been pd up, on the shares held by them respively at the com- 
 mencemt of the winding up. But this clause is to be without prejudice 
 to the rights of the holders of shares issued upon special conditions. 
 
 Where the profits are to be divided in proportion to the amount paid up on 
 the shares, it seems not unreasonable to provide that upon a winding up the
 
 lOG AETICLES OF ASSOCIATION. 
 
 Porm 117. losses shallj as in the case of an ordinary partnership, be borne in the same 
 ■ proportions, and the above chxiise is accordingly used. 
 
 In connection with these clauses, it may be well to consider the mode in 
 which surplus assets are dealt with upon a winding-up, in the absence of special 
 provisions. 
 
 It is the duty of the liqiiidators in a voluntary, and the court in a compulsory 
 winding-up, to adjust the rights of the contributories inter se (s. 133, subs. 
 10, and s. 109 of the Companies Act, 1862). 
 
 If all the shares are fully paid up, no difficulty can arise ; the assets are 
 divided pro rata. But very commonly some shares are fully paid up, some not. 
 The question is how in such case to adjust the rights of the contributories. 
 
 It is now well settled (see Maude's case, 6 Ch. 51, and cases there cited) 
 that in the absence of special provisions in the articles, or a special contract 
 made on the issue of the shares, the adjustment should, as far as possible, 
 throw the loss of capital on the niembei's in proi^ortion to the nominal amount 
 of capital held by them respectively, e. g., suppose that there are 1,000 ^10 
 shares fully paid up, and 1,000 ,£10 shares with ^5 paid up, i. e., total 
 paid-up capital ^£15,000, and that, after i^aying the creditors, ,£5,000 only 
 remains — the loss of cajjital (,£10,000) must be borne in proportion to the 
 nominal capital held, viz., ,£5 per share, therefore the ,£5,000 nuist be paid 
 over to the holders of fully paid-up shares. Suppose that the loss is ^£5,000, 
 eqxial to £2 10s. per share, then of the =£10,000 surplus assets £7,500 must goto 
 the fully paid shares, and the rest to the £,5 paid shares. And if the loss is 
 d£15,000, i. e., ,£7 10s. per share, the holders of the ^65 paid shares must pay up 
 .£2 10s. per share, which will be handed over to the holders of fully-paid shares. 
 
 This rule is just where dividends are paid in proportion to the nominal 
 amount of the shares held, for it is only reasonable that profits and losses 
 should be borne in the same proportions, but the rule is not just where \_supra, 
 CI. 116] dividends are payable in proportion to the capital paid up. Assuming 
 that dividends were so payable in the hypothetical cases above mentioned, the 
 holders of the fully paid-up shares would have been taking two-thirds of the 
 profits, and the holders of the =£5 paid shares one third. Why should they not 
 bear the losses in the same proportions, instead of according to the rule half 
 and half ? 
 
 As to preference shares, see p. 189. 
 
 Distribution of 1 53. If tbc CO shall bc woimd up, the liqs (whether voluntary or 
 assets m official) luay, with the sanction of an extraordinary resolution, divide 
 
 among the contribs, in specie, any pt of the assets of the co, and may, 
 with the like sanction, vest any pt of the assets of the co in trustees 
 upon such trusts for the Ijenefit of the contribs, as the liqs, with the like 
 sanction, shall think fit. 
 
 Sometimes power is given to distribute assets in specie, and where the busi- 
 ness of a comj^any includes the acquisition of shares, bonds, or seciirities of 
 other companies, such a power may be useful, for the Liquidation Act, 1868 
 (31 k 32 Vict. c. 68), which authorises a division in specie, only apjilied to 
 liquidations pending in 18G8. It seems, however, that the Court can, in a 
 special case, authorise a distribution in sjjecie. See infra, " Winding up." 
 
 Salcimder 154. If at any time the liqs of the co shall make any sale, or enter 
 
 s. 161 of tlie into any aiTangemt pursuant to section KU of the Companies Act, 1862, 
 
 Act 1862. ^ dissentient member, within the meaning of that section, shall not have 
 
 the rights thereby given to him ; but instead thereof he may, by notice 
 
 in writing, addi'cssed to the liqs, and left at the office not later than 
 
 fourteen days after the date of the meeting at which the special rcsolu-
 
 FOEMS. X(37 
 
 tion, authorising- such sale or arrangemt, was i)assecl, require them to sell Form 117. 
 the shares, stock, or other ppty, option or privilege to which under the "" 
 arranjrenit he would otherwise have become entled, and to pay the net 
 proceeds over to him ; and such sale and paymt shall be made accordingly. 
 Such last mentioned sale may be made in such manner as the liqs thiuk fit. 
 
 The above clause, or one of a similar character, is not uncommonly used now, 
 and enables a company much more effectually to take advantage of section 161 
 of the Act, for the jjurpose of effecting a reconstruction or amalgamation . Ac- 
 cording to the Act, dissenting members are entitled to be j^aid the value of their 
 interests in the selling company as ascertained, in case of dispute, by arbitra- 
 tion. Under the above clause they are only entitled to the selling value of the 
 shares in the purchasing company which would otherwise have been allotted to 
 them. There is no injustice in this, for it may reasonably be assumed that a 
 sale which is sanctioned by special resolution is fair, and at the same time it 
 facilitates matters considerably. In some cases the clause is framed with a 
 view to binding every member to take the shares in the purchasing company 
 agreed to be allotted to him ; but that form is objectionable, for the sale may be 
 in consideration of shares only partly paid up, and it is unreasonable that a 
 dissenting member should be obliged to undertake further liabilities. See 
 further as to Reconstruction and Amalgamation, infra. 
 
 15.5. Any such sale or arrangemt, or the special resolution confirm- Special 
 ing the same, may provide for the distribution or appropriation of the P™^^^*''^- 
 shares, cash, or other benefits to be received hi compensation otherwise 
 than in accordance with the legal rights of the contribs of the co, and 
 in parlar, any class may he given preferential or special rights, or may 
 be excluded altogether or in pt ; but, in case any such provision shall be 
 made, the last preceding clause shall not apply to the intent that a 
 dissentient member in such case may have the rights conferred on him 
 l)y section IGl of the Companies Act, 1862. 
 
 This clause is frequently inserted in order to meet the inconvenience which 
 has resulted from the decision in Griffith v. Paget, 5 C. D. 89i; 6 C. D. 514; 
 viz., that upon a sale under section IGl of the Act, the special resolution cannot 
 define the mode in which the shares are to be appropriated, e. g., two shares in 
 the new company for every preference share in the old, and one share in the 
 new for every ordinary share in the old, or preference for preference, and or- 
 dinary for ordinary. 
 
 Under the above clause such a scheme can be carried out if the requisite 
 majority approve, and dissentients will be paid out. See infra, " Reconstruc- 
 tion." 
 
 150. Every director, manager, secretary, and other officer or servant of Indemnity, 
 the CO, shall be indemnified by the co against, and it shall be the duty 
 of the directors out of the funds of the co to pay, all costs, losses, and 
 expenses which any such ofilcer or servant may incur or become lial^le to 
 by reason of any contract entered into, or act or deed done by him as 
 'such officer or servant, or in any way in the discharge of his duties ; and 
 the amount for which such indemnity is provided shall immediately 
 attach as a lien on the ppty of the co and have priority as between the 
 members over all other claims. 
 
 The above clause is occasionally inserted. See as to the right to indemnity
 
 168 
 
 AETICLES or ASSOCIATION. 
 
 Form 117. f>f directors and other agents, Lindley, 759 ; Hunt's claim, W. N. 1872, 53 ; Be 
 '~ Financial Corporation, 2S W. E. 7G0 ; W.N. 1880, 88; Wilson v. Lord Bury, 
 
 5 Q. B. D. 518 ; Smith v. Duke of Manchester, 24 C. D. 611 ; 32 W. E. 83. 
 
 Individual 
 
 responsibility 
 of directors. 
 
 Marginal 
 notes. 
 
 1.57. Xo director or otlicr officer of the co shall be liable for the acts, 
 receipts, neglects, or defaults of any other director or officer, or for 
 joining in any receipt or other act for conformity, or for any loss or 
 expense happening to the co, through the insufficiency or deficiency of 
 title to any ppty acquired by order of the directors for or on behalf of 
 the CO, or for the insufficiency or deficiency of any security in or upon 
 which any of the monies of the co shall be invested, or for any loss or 
 damage arising from the bankruptcy, insolvency, or tortious act of any 
 person with whom any monies, securities, or effects shall be deposited, or 
 for any other loss, damage, or misfortune whatever which shall happen 
 in the execution of the duties of his respive office or in relation thereto, 
 unless the same happen through his own wilful act or default. 
 
 The above clause is sometimes inserted. See Lindley, 595, as to liability of 
 directors for acts of each other. As to the right to contribution, see Lindley, 
 773, et seq.; and Ashurst v. Mason, 20 Eq. 225. 
 
 In the case last mentioned, shares of a company had (pursuant to an ultra 
 vires resolution of the board) been purchased and transferred into the name of 
 A.., a director, in trust for the company. It was held that A. was entitled to 
 contribution from the directors who concurred in the transaction for calls he had 
 paid. See also Power v. Hoey, 19 W. E. 916 ; and Power v. O'Connor, ibid., 923. 
 
 As to omitting to sue, see Re Forest of Dean, 10 C. D. 452 ; Re Wedgwood Co., 
 47 L. T. 612. As to general position as fiduciary agents, see Pickering v. 
 Stephenson, 14 Eq. 322 ; Marzetti's case, 28 W. E. 541 ; 42 L. T. 206 ; Wilson v. 
 Loiv Bury, 5 Q. B. Div. 519; and infra. Form 339. 
 
 158. The marginal notes hereto shall not affect the construction hereof. 
 
 Sometimes a schedule is added containing a cojiy or draft of an agreement. 
 See supra, p. 115. 
 
 Names, Addresses, and Descriptions of Subscribers, 
 
 See supra, p. 112. 
 
 Dated the 
 
 day of 
 
 Witness to the above signatures. 
 
 Payment of Dividends out of Capital. 
 
 Illegality. It is well settled that in the case of a company limited by shares the pay- 
 
 ment of dividends out of capital is illegal: they can only be paid out of profits. 
 " A limited company, by its memorandum of association, declares that its 
 capital is to be applied for the purposes of the business. It cannot reduce its 
 capital except in the manner and with the safeguards provided by statute, and, 
 looking at the Act 40 & 41 Vict. c. 26 [the Companies Act, 1877J, it clearly is 
 against the intention of the Legislature that any portion of the capital should 
 be returned to the shareholders without the statutory conditions being com- 
 plied with. A limited company cannot, in any other way, make a return of 
 capital : the sanction of a general meeting can give no validity to such a pro- 
 ceeding, and even the sanction of every shareholder cannot bring within the
 
 FORMS. 100 
 
 powers of the company an act which is not within its powers. If, therefore, Form 117. 
 
 the shareholders had all been present at the meetings, and had kno'v\'n all the 
 
 facts and had all concurred in declaring the dividends, the pajanent of the 
 dividends would not be effectually sanctioned." Per Jessel, M. R., Flitcroft's 
 case, 21 C. Div. 533. 
 
 " A payment of dividends out of capital is contrary to the constitution of the 
 company, and is incapable of ratification." Per Cotton, L. J., Flitcroft's case, 
 21 C. Div. o3G. 
 
 "That which is described in the memorandum as the capital cannot be 
 diverted from the objects of the society. It is of course liable to be spent or 
 lost in carrying on the business of the company, but no part of it can be 
 returned to a member so as to take away from the fund to which the creditors 
 bave a right to look as that out of which they are to be paid." Per Cotton, J., 
 Guiness v. Land Corp., 22 C. Div. 375. 
 
 In Macdovgall v. Jerseij Imperial Hotel Co., 2 H. <t M, 528; 12 W. E. 1142, 
 Wood, V.-C, said : — 
 
 *' The bill avers that there are no profits, and that interest has been paid, or 
 is about to be paid, out of capital, that the shareholders have paid-lL per share, 
 and are discharged to that extent, and that they are now about to take back 
 sums equal to ol. per cent, of that very capital in the shape of interest. On 
 grounds of public policy, and on every principle not only of honesty as regards 
 the public generally, but of the interests of this company itself, I feel bound to 
 j)revent this proceeding. This is not in accordance with the contract entered 
 into with the Legislature on behalf of the public, whereby it was determined 
 that the shareholders should be liable to a certain defined amount, and no 
 more, to the creditors of the company, and not in accordance with the contract 
 between the parties whereby each shareholder was protected against creditors 
 to the extent of the contributive liability of all the others." And in Re Alexan- 
 dra Palace Co., 21 C. D. 160, Fry, J., referring to this passage, said : — 
 
 " In my view that lays down the law with perfect precision, and I think no 
 subterfuge by which it is attempted to return capital to shareholders and 
 thereby to diminish their liability, ought to be countenanced for one moment 
 by this Court. I confess it was with some surprise that I heard the argu- 
 ment addressed to me at the bar that the directors were at liberty to pay this 
 money out of capital because otherwise they could not carry on their under- 
 taking." Bent V. London Tramways, 16 C. D. 344, and Lambert \ . Neiichatel Co., 
 30 W. E. 913, are inconsistent with the decisions of the Court of Appeal, and 
 therefore must be disregarded. 
 
 The Court will, at the instance of a single shareholder, interfere by injunc- Injunction to 
 tion to restrain the payment of dividend out of capital : Macdougall v. Jersey restrain. 
 Imperial Hotel Co., 2 H. & M. 528 ; Guiness v. Land Corporation of Ireland, 22 
 C Div. 349 ; Davison v. Gillies, 16 C. D. 347 ; but not at the suit of a mere 
 simple contract creditor: Mills v. Northern Co., 5 Ch. 621. Nevertheless it would 
 seem that there may be cases in which a creditor would have a locus standi. 
 Flitcroft's case, 20 C. Div. 533. 
 
 If a dividend can be paid out of profits only, and not out of capital, it is " Profits." 
 important to determine how profits are to be ascertained. It would seem that 
 they are to be ascertained as in an unincorporated partnership, viz., by pre- 
 paring a fair and honest balance-sheet, " for, after all, these companies are 
 commercial paitnerships, and are, in the absence of express provisions, statu- 
 tory or otherwise, subject to the same considerations." Per Jessel, M. E., 
 Griffith V. Paget, 6 C. D. 515. 
 
 In Helby's case, 2 Eq. 172, Kindersley, V.-C, said : — 
 
 " A balance-sheet or summary of accounts would show on the one hand all 
 the assets, and on the other hand all the liabilities of the company ; and it was 
 only ou that sort of statement that any safe conclusion could be di'awn as to 
 the question whether there had been any profit for the half-year or not, and 
 whether any and what dividend should be declared."
 
 170 ARTICLES OF ASSOCIATION. 
 
 Form 117. ^'"■^ among the liabilities miist be included the liability of the company to 
 
 its members in respect of paid-up capital. This is the universal practice as well 
 
 in the case of ordinary partnerships, as of companies. 
 
 If such a balance-sheet shows that the assets exceed the liabilities, the excess 
 is profit. 
 
 But it does not follow that the whole of the excess is applicable to the pay- 
 ment of dividend, e.g., it may consist in part of a reserve fund of accumulated 
 profits appropriated to specific purposes, or of unclaimed dividends. Such items 
 will be inserted on both sides of the account. In preparing the balance-sheet 
 a bond, fide estimate should be made of the value of the assets, or of the extent 
 of any liability, and an erroneous estimate will not render it fravidulent. Stringer's 
 case, 4. Ch. 475 ; Bance's case, 6 Ch. 10-1 : Burnes v. Pennell, 2 H. L. Cas. 497. 
 As to writini^ In the case of an ordinary partnership it is a common practice where, upon 
 off lost capital, a balance sheet being made out, it appears that a loss of capital has been 
 sustained, to write oS the amount and start afresh with the reduced capital, 
 but in the case of a company limited by shares this cannot be done without the 
 sanction of the Co\irt under the Companies Act, 1877, and accordingly there 
 can be no subsequent profits until the loss has been made good. It is, however, 
 contended by Mr. Buckley in his admirable work (p. 459) that " for the purpose 
 of determining profits you must disregard accretions to or diminutions of 
 capital." But it is submitted that this contention is not well founded. To 
 adopt it is to introduce a rule for ascertaining the profits of a limited company 
 which is not applicable in the case of an ordinary partnership, and that to the 
 detriment of the company's creditors. 
 
 In Robinso7i v. Ashton, 20 Eq. 28, Jessel, M.E,., said " that the rise or fall in 
 the value of fixed plant or real estate belonging to a partnership was as much 
 profit or loss of the partnership as anything else." And in Davison v. Gillies, 
 IG C. Div. 347, the same judge held that there could be no profit until depre- 
 ciation had been made good. 
 
 See also Coltness Iron Co. v. Black, 6 App. Cas. 329, where Lord Blackburn stated 
 that he should not be at all inclined to dispute the sufiiciency of the definition 
 in Mr. McCiilloch's Political Economy, viz., "Profits must not be confounded 
 with the produce of industry primarily received by the capitalist. They really 
 consist of the produce or its value remaining to those who employ their capital 
 in an industrial undertaking after all their necessary payments have been 
 deducted, and after the capital wasted and used in the undertaking has been 
 replaced. If the produce derived from an undertaking, after defraying the 
 necessary outlay, be insufiicient to replace the capital exhausted, a loss has been 
 incurred ; if the capital is merely sufficient to replace the capital exhausted 
 there is no surplus, there is no loss, but there is no annual profit, and the 
 greater the surplus is, the greater the jDrofit." 
 
 Moreover, if a company can pay dividend notwithstanding a loss of cajiital, 
 what, it may be asked, was the object of the Companies Act, 1877, whereby 
 power is given to cancel "capital which has been lost or is unrepresented by 
 available assets " ? As a matter of fact it is notorious that the Act was passed 
 in order to remedy a grievance, viz., that after a loss of capital a company could 
 not, like a partnership, write off the amount and resume payment of dividends. 
 See the Ehhw Vale Co., 4 C. Div. 827, and also the evidence taken by the 
 Select Committee (1877) of the House of Commons on the Companies Act, 1862 
 and 1867, and in particular Ques. and Ans. 328, 335, 369, 371, and 377, in the 
 evidence of Mr. Newmarch, E.E.S. This gentleman, in answer to Question 262, 
 said : " I am entirely in favour of the power proposed to be given of reducing 
 
 the capital of a company Every facility should be given to them 
 
 [companies] which can be given without doing an injustice to third parties ; 
 and therefore in the case of a public company, when the course of its business 
 has been unfortunate, and the balance sheet can only be adjusted by writing off 
 a certain part of the paid-up capital, as would be done by any private partner-
 
 POEMS. 171 
 
 ship, subject to due notice being given to the parties concerned, that should bo Poi'in 117. 
 
 done." — ~ 
 
 Again, Ans. 331 : — " In the case of a limited conapany the operation cannot 
 be exactly in the same form [as in a partnership] ; the public company would 
 have to consult its shareholders, and say to them : ' Gentlemen, your 
 5O0,O00L has been reduced to 100,000?. ; unless you write 100,000L off, you can 
 have no dividend till the 100,000J. is recovered. Which do you prefer, to wait 
 seven, eight, or ten years to recover that, or to reduce the paid-up capital 
 now ?' That seems to me a case where the law should offer every facility." 
 
 Accordingly, after the Act of 1877 was passed, the Ebbw Vale Company again 
 applied to the Court to sanction a cancellation of lost capital, and Jessel, M.R., 
 made the order, saying " that this was a matter which was now very properly 
 left in the discretion of the company, which might desire to reduce its capital 
 by writing off' losses. The power ivas extremely beneficial, inasmuch as it enabled 
 companies to declare dividends in cases where but for the power no dividends would 
 be possible." — Times, 20 Jan., 1878. 
 
 Some persons, whilst admitting that dividends cannot be paid out of capital, " During 
 contend that where a company engages in the construction of works, interest construction, 
 may be paid on cajjital during constiaiction. Thus, in Re Alexandra Palac6 Co., 
 21 C. Div. 149, where dividends on preference shares had been paid during con- 
 struction, it was contended "thatthedividends were notpaid out of capital; and 
 it is quite proper to debit to capital account the interest on capital expended on 
 works, such as buildings, so long as they are tmproductive during the period of 
 construction." But Fry, J., referring to this contention, said that covinsel 
 " has very ingeniously argued that this was really a payment out of profits (so, 
 at least, I understood his argument), because, he says, you are entitled to compute 
 interest on the money you lay out before it becomes remunerative, and to treat 
 that interest as profit, and divide it accordingly among the shareholders. I 
 cannot yield to that argument." And accordingly the directors were held 
 jointly and severally liable to make good the amount. 
 
 As a company may not pay dividends directly ovit of capital, it may not do Through 
 so indirectly, e.g., by entei'ing into a contract with another company or person, contractors. 
 one of the terms of which is that the latter shall jiay interest on the capital of 
 the former. James v. Eves, G H. L. 385 : " There is no doubt that if it cannot 
 be done directly, it cannot be done indirectly." Per Lord Chelmsford, L.C. 
 
 And in Fisher v. Hull ^ Barnsley By. Co., -i Mar. 1881 (25 S.J. 353), where the 
 contractors had agreed to pay interest during construction, Jessel, M.E., granted 
 an injunction restraining the payment, and the company in two subseqvient 
 sessions endeavoured but withoiit success to obtain legislative authority. See 
 also what was said in Wye Valley By. Co. v. Hawes, 16 C. Div. 489. 
 
 The payment of dividends out of capital is regarded as a breach of trust on Liability of 
 the part of the directors, and accordingly they are jointly and severally liable directors, 
 to make good the amount with interest at 5 per cent, per annum, and the Statute 
 of Limitations is no answer. Flitcroft's case, 21 C. Div. 520; Be Alexandra Palace, 
 ibid., 160. 
 
 And they are liable, not only for what they pay themselves, bvit for the whole 
 amount. "I do not see how to make any distinction between what the directors 
 retained and what they paid to other shareholders." Pe?' Cotton, L.J., Flitcroft's 
 case, 21 C. Div. 536. 
 
 It is true that a member who receives a dividend knowing that it is paid out 
 of capital may be liable to make good the amount, for " the money of a company 
 is a trust fund, because it is applicable only to the special purposes of the com- 
 pany in the hands of the agents [i.e. the directors] of the company, and it is 
 in that sense a trust fvmd applicable by them to those special purposes : and a 
 person taking it from them with notice that it is being applied to other pur- 
 poses cannot, in this Court, say that he is not a constructive trustee." Per 
 Jessel, M. E., PMssell v. Wakefield Waterworks, 20 Eq. 479. Holmes v. Newcastle 
 Co., 1 C. D. 682.
 
 172 
 
 AETICLES OF ASSOCIATION. 
 
 Form 117. But even in sucli cases the directors will be primarily ordered to make good 
 the amount, and will be left to recover from the other members if they can. Re 
 Alexandra Palace Co., 20 C. D. ; National Funds, 10 C. D. 118. 
 
 And a member who takes a dividend in good faith, not knowing that it is 
 paid out of capital, is not liable to return the same. Flitcroft's case, 21 C. Div. 
 519 ; C. Denlmm 4' Co., W. N. 1883, 20i ; Wye Valley Railway Co. v. Hawes, 
 16 C. Div. 489. 
 
 This is a common case, for where dividends are paid out of capital the mem- 
 bers can in most cases show that they were deluded by fraudulent accounts. 
 And where the directors represent that profit has been made, members are not 
 bound to investigate. 
 
 " The directors made an express representation to the shareholders that pro- 
 fits had been made, and the effect of that representation cannot be taken away 
 by shewing that documents were laid before the shareholders, a thorough in- 
 vestigation of which would have shewn that the representation was untrue, 
 unless it is also shewn that they did investigate them and discover the untruth." 
 Per Jessel, M. E., Flitcroft's case, 21 C. Div. 532. 
 
 Not only are directors who pay dividend out of capital civilly liable, but they 
 may, at any rate in some cases, be prosecuted for conspiracy. Burnes v. Pennell, 
 2 H. L. Cas. 497. 
 Kecoiniinr'- I^ ^i^l b® borne in mind that where a company has expended on capital ac- 
 
 lirofit expended count monies which would otherwise have been applicable to the payment of 
 on capital. dividend it may raise an equivalent amount by issuing new shares or borrow- 
 
 ing and paying dividend thereout. ^Mills v. Northern, Sfc, Co. 5 Ch. 621. 
 
 And if upon a balance-sheet it appears that there are profits, an equivalent 
 amount may be raised by borrowing or otherwise and applied in paying a divi- 
 dend, even though the profits have not been realized and are arrived at by esti- 
 mating the assets at a value which they may never realize. Stringer's case, 
 4 Ch. 475. But there must be perfect bona fides. As to ascertaining profit 
 for the purpose of income tax, see note at end of Form 199. As to inserting 
 power to pay dividends out of capital, see supra, p. 89. 
 
 And a dividend may be paid out of profits Avhich have not been realised. 
 
 Criminal. 
 
 Form 118. 
 
 Articles of 
 fissociation in 
 ])art adopting 
 Table A. 
 
 The Companies Acts 18G2 to 1879. 
 
 Shares. 
 
 Company Limited by 
 
 Articles of Association of The Company Limited. 
 
 In a good many cases articles of association are framed as in this form, viz., by 
 the adoption of Table A., subject to modifications. See swpra, p. 111. The plan 
 is not to be recommended, for it is extremely desirable to have the regulations 
 in a single document, but it is often adopted to save expense. The clauses of 
 Form 117 are hereinafter referred to. 
 
 rrcliminary 
 iigreement. 
 Allotment of 
 shares. 
 Instalments. 
 
 1. Subject as hereinafter provided, the regulations contd in the 
 Table marked A. in the first schedule to the Companies Act, 1862 (here- 
 i^fter called Table A.), shall apply to this co. 
 
 This clause is commonly inserted by way of reminder, but it is not necessary, 
 for so far as not excluded. Table A. applies. See supra, p. 111. 
 
 2. The following clauses of Table A. sliall not apply to this co, namely. 
 Clauses 10, 22, 20, 27, 28, 37, 44, 52, 58, 54, 72, 1)0, and 91. 
 
 3. The directors may enter into [Clause 3.] 
 
 4. The shares shall be under, &c. [Clause C] 
 
 5. If by the conditions of allotmt, &c. [Clause 8], and the word
 
 FOEMS. 173 
 
 "call "where used in Clauses G, 7, 18, and 19 of Table A. shall be Form 118. 
 deemed to include an instalmt. 
 
 6. The directors may decline to register, &c. [Clause ?>i).'] Transfers. 
 
 7. A fee not exceeding 2s. Gd. may be charged for each transfer. Fee. 
 
 8. 9, 10. [Clauses 27, 28, 29.] ^'^''^ 
 
 11. Upon any sale in purported exercise of the powers respively given Validity of 
 
 by Clause 10 hereof, and Clause 21 of Table A., the directors, &c. ^'^^^^• 
 
 [Clause 30.] 
 
 12 to 17. [Clause 44 to 48.] Alteration of 
 
 ^ „ capital. 
 
 18 to 21. [Clause 49 to 54.] ]]oiTowing. 
 
 22. The quorum of a general meeting shall be three memljers person- Quorum. 
 ally present. 
 
 23. The words " or carried by a parlar majority, or lost," shall l)e Modification of 
 inserted in Clause 42 of Table A. after the word " carried," and the ' "" 
 word " conclusive " shall be substituted for the word " sufficient " hi the 
 
 same clause. 
 
 24. The words "and either at once, or after an interval or adjom'nmt," P*^!!- 
 shall be inserted in Clause 43 of Table A., after the word " manner." 
 
 25. Every share shall confer one vote. Votes. 
 
 26. The number of the directors shall not be less than , nor more dii™tors° 
 than 
 
 ,- m c rni oi -| First directors. 
 
 27. Ihe persons, &c. I Clause 84.1 
 
 -v^ mi T . o 1-/^1 -I Additional 
 
 28. Ihe directors, &c. [Clause 8o.] directors. 
 
 29. There shall be pd, &c. [Clause 90.] Remuneration. 
 
 30. The qualification, &c. [Clause 88.] Qualification. 
 
 31. The words "at the second" shall be substituted for the words j;i.e'^toj.^_ 
 " at the first " in Clause 58 of Table A. Power of 
 
 32. A meeting of directors, at which a quorum, &c. [Clause 109.] ^^"'"^^^ 
 
 33. A resolution in writing, &c. [Clause 113.] Eesolution ia 
 
 34. Subject to the rights, &c. [ Clause IIG.] •' writing. 
 
 35. The company in general meeting, &c. [Clause 117.] Eight to 
 
 36. The directors, &c. [Clause 121.] Dividends. 
 
 37. If any casual vacancy occurs in the office of auditor, the directors Interim 
 
 M., dividends. 
 
 " '^ ^^P- Auditor. 
 
 38. Each holder, &c. [Clause 144 and 145.] Address for 
 
 39. If the company shall, &c. [Clause 152.] service. 
 
 Distribution of 
 In addition to the above clauses it may be deemed desirable to provide for assets, 
 the issue of share warrants ; for division of the original capital into different 
 classes of shares ; enabling directors to contract ; managing directors ; some 
 express powers as in clause 114 ; and for some modification of the provisiori^(|E 
 Table A., as to accounts and audita &c., and winding-up clauses. 
 
 Xames, Aduressks, and Descriptions of Subscribers. 
 {_Supra, p. 112.] 
 Dated, &c.
 
 174 
 
 AETICLES OF ASSOCIATION. 
 
 Form 119. 
 
 Articles of Association of the iV Incorjwrated Land Society. 
 
 i«sociation of These articles can easily be so modified as to suit almost any of the associations 
 society limited I'eferred to supra, p. 78. In the case of a chai-itable association, e.g., a hospital, 
 by guarantee, or a home or trust, the best plan is to provide that " The council may from time 
 to time determine the terms and conditions on which any person shall be ad- 
 mitted as a member of the association/' for in such cases there is generally no 
 reason for having a large number of members so long as the number is kept 
 above seven. It may also be expedient to leave it to the council to fix the 
 annual subscription, if any. 
 
 Preliminary. 
 
 Interprettition. I. In these articles, unless there be something in the subject or context 
 inconsistent therewith, [see supra, p. 114, omitting "the directors".] 
 
 ■J. For the purposes of registration, the society is declared to consist 
 of ;]U0 members. 
 
 Number of 
 members. 
 
 See Supra, p. 111. 
 
 Power to 'J- The council may, when they think fit, register an increase of 
 
 increase. members. 
 
 "Who may 
 
 become 
 
 members. 
 
 Apphcation 
 for member- 
 ship. 
 
 Proposer ami 
 seconder of 
 candidate. 
 
 "When candi- 
 date to be 
 balloted for. 
 
 Members of 
 council to be 
 
 l\lEMnERSHIP. 
 
 4. Any solor in practice in N., or witliin twenty miles of the Town 
 Hall thereof, may, subject to the following regulations, become a member 
 of tlie society. 
 
 i>. Each candidate for membership shall sign, and deliver to the 
 secretary, an applicon in the form or to the effect following : — 
 
 To the Council of the N. Incorporated LaAv Society. 
 Gentlemen, — 
 I desire to become a member of the K Incorporated Law Society ; 
 and I hl)y authorise you, in the event of my being elected, to enter my 
 name in the register of members of the society. 
 
 Dated this day of , 18 — . 
 
 Name in full. 
 
 Address. 
 
 Signature. 
 
 6. Such applicon must be accompanied by a note in writing, signed 
 l)y two members — tbe one pro})Osing, the other seconding the candidate's 
 election. 
 
 7. At the next quarterly meeting of tlie council, which shall be held 
 after tbe expiration of fourteen days from the receipt of any such appli- 
 con, the candidate shall be balloted for by the council, and one black 
 baU in five shall exclude. 
 
 8. The secretary shall, seven days at least before each quarterly
 
 FORMS. 
 
 175 
 
 meeting, give notice in writing to every member of the conncil, stating Form 119. 
 the name and address of each candidate (if any), to be balloted for at ~ 7. 
 
 ^ _ •' ^' given notice 
 
 the approaching meeting, and the names of his proposer and seconder, of applications 
 
 J). The candidate's name shall also be put up in the oJhce or library ^JJ J^^mber- 
 of the society seven days before the meeting of the council at which he Candidates' 
 is to be balloted for. "'■^"^es to be 
 
 10. The rights and privileges of every member shall be personal to office, 
 himself ; they shall not be transferable by his own act, or by oi)eration Kiglits of _ 
 
 r. T member.sliip 
 
 ^''^ ^^'^^'- to he personal. 
 
 11. Any member may withdraw from the society by ginng two Power to 
 
 calendar months' notice in writing to the secretary of his intention so to ^^it}>^'i'^^^' ^'■'^^ 
 
 ^ *' society. 
 
 do, and upon the expiration of the notice he shall cease to be a member. 
 
 An express j)ower to witlidraw ought to be given. 
 
 12. Any person who shall, l>y any means, cease to be a member, shall, Arrears to be 
 vertheless, re 
 lich, at the t 
 to the society. 
 
 nevertheless, remain liable for, and shall pay to the society, all monies ]''^l\ ^^' ^ 
 
 ' ' i- '' 'I ' witiiuiawmg 
 
 which, at the time of his ceasing to be a member, may be due from him members. 
 
 SUBSCRIPTIOXS AND EnTRANCE-FeES. 
 
 13. Every member shall pay to the society an annual subscription of Annual sub- 
 such amount as may be from time to time fixed by the council, with the ''^"^' ^°"''' 
 sanction of a general meeting. 
 
 The subscription will be a specialty debt, see supra, p. 116, note to Clause S. 
 
 14. Until otherwise determined, such annual subscription shall be two Amount. 
 guineas, and shall be payable, in advance, on the 1st day of October in 
 
 each year. 
 
 15. The subscribers hto, and any memljcrs elected on or before the When sub- 
 1st day of October next, shall be liable to pay the annual subscription as ^e"ihbie*° 
 from that day only. 
 
 16. Any member elected after the first day of October next shall be Liability 
 liable to pay the sd annual subscription as from the 1 st day of Octo])er °[ |"k ""° 
 [last preceding his election ; the subscription for the current year to be 
 
 pd by him immediately after his election]. ^ 
 
 Or omit the words in brackets and substitute the words "next following his 
 election." This alteration will make the entrance fee cover the subsci'iption 
 for the current year. t 
 
 17. An elected member shall pay to the society, immediately after Entrance fees. 
 his election, an entrance-fee of such amount as the council shall from 
 
 time to time fix. Until otherwise determined, the entrance-fee shall be 
 three guineas. 
 
 18. An elected member shall not be entled to exercise any of the Elected mem- 
 privileo-es of a member until he shall have pd all moneys payable by ^^^' "?* *° • • 
 
 ' "■ . ^ J f ^ J exercise privi- 
 
 him to the society upon his election, and if he shall, for one calendar leges till pay-
 
 176 
 
 AETIOLES OF ASSOCIATION. 
 
 Form 119. month after his election shall have been notified to him in writing by 
 the society, make default in such paymt, he shall ipso fado cease to be 
 a member. 
 
 [calls.] 
 Occasionally the articles of chambers of commerce, law societies, and other 
 associations of a similar character [^swpra, p. 64], besides a power to increase 
 the annual subscription, contain power for the executive to make calls to a 
 limited extent. The following clauses will serve as an example : — 
 
 ment of en- 
 trance fee, he 
 Provision for 
 default. 
 
 Powers of 
 council as 
 regards mem- 
 bers in arrear. 
 
 CALLS. 
 
 The council may, with the sanction of a g-eneral meeting, from time to time 
 call on the members, -pari passu, to contribute funds for the purposes of the so- 
 ciety or any of them, and each member shall pay every call so made to the 
 persons, and at the times and places appointed by the council ; but no member 
 shall be called on to pay more than 5L in any one year, including the annual 
 subscription for that year. 
 
 A call shall be deemed to have been made at the time when the resolution of 
 the council making the same was passed. 
 
 Twenty-one days' notice shall be given of each call. 
 
 10. If any member shall neglect, for one calendar month, to pay any 
 money due from him to the society, the council may, by notice in 
 writing, request him to pay such money. The notice shall appoint a 
 day and place for paymt, and a C(jpy of this clause shall be subjoined 
 thereto. If the requisitions of such notice are not complied with, the 
 council may suspend the privileges of such member for such period as 
 they think fit, and if he continue in default for twelve calendar months 
 after such notice, he shall upon the expiration of that period cease to be 
 a member. 
 
 Here insert Clauses 20 to 36 as to general meetings ; proceedings thereat, and 
 votes adopted from Form 117. Substitute "coimcil" for " directors," and " mem- 
 ber of the council " for " director." Very commonly it is provided that " every 
 member shall have one vote, and voting by proxy shall not be permitted, and 
 that a poll may be either by open voting or by ballot." All mention of shares 
 and dividends will be omitted. 
 
 Officers. 
 
 The council 
 
 First ofiicers. 
 
 Officers. — The Couxcil. 
 
 o7. There shall be the following officers of the society, namely, a pre- 
 sident, a vice-president, a treasurer, a secretary, two auditors, and twelve 
 ordinary members of the council. The afsd officers shall act without 
 remuneration. 
 
 ;>8. The council shall consist of fourteen members, namely, the presi- 
 dent, the vice-president, and twelve ordinary members. 
 
 Tlie treasurer and secretary may also bo made members. 
 
 ;5i). Until the annual meeting in the year , the following shall be 
 
 the officers of the society : — 
 
 President, A., of ; vice-president, B., of ; treasurer, C, of 
 
 secretary, D., of 
 
 auditors, E., of 
 
 Ordinary members of the council, A., B., C, D., &c.
 
 FOEMS. 177 
 
 40. All the officers of the society shall retire at the annual meeting Form 119. 
 
 in the year , and at each subsequent annual meeting- the presideiit, R^tiremenToT" 
 
 the vice-president, the treasurer, the secretary, and the auditors of the officers. 
 society, and four ordinary members of the council shall retire. 
 
 In some cases the regulations provide that the president and vice-president 
 shall be selected by the council out of their o^vn body, instead of, as in these 
 articles, vesting the right of selection in the society at large. 
 
 41. The four ordinary members of the council to retire at the annual Whicb mem- 
 meeting in each year shall, unless the members of the council agree ^^^'^ *° ^'®^'^'^' 
 amctng themselves, be determined by lot. 
 
 Sometimes it is provided that all the. officers shall be elected annually. 
 
 42. Xo person shall Ije eligible as an officer of the society who is not Kestrictimi 
 a member. A retiring officer shall be eligible for re-election. Nogf^^^gj"'^ 
 member shall at the same time be treasurer, secretary, or auditor of the 
 
 society and a memljer of the council. Any officer of the society ceasing 
 to be a member thereof shall q^so facto vacate his office. 
 
 43. At each annual meeting the society shall fill up the places vacated As to fining 
 
 by the retiring officers of the society, "^' vacancies 
 
 •' ° _ _ •' in omces. 
 
 44. If at any meeting at which an election of officers ought to take Provisions in 
 place, the places of the vacating officers are not filled up, the meeting ^^^^ vacancies 
 shall stand adjourned till the same day in the next week, at the same 
 
 time and place ; and if at suclv adjourned meeting the places of the 
 vacating officers are not filled up, the vacating officers, or such of them 
 as have not had their places filled up, shall continue in office until the 
 annual general meeting in the next year, and so on fi'om time to time 
 until their places are filled up. 
 
 4"). If any casual vacancy shall occur in the office of president, the As to casual 
 vice-president shall ipso facto liecome president, and the council shall o^^^of '" 
 thereupon elect from among the members thereof some person to be president. 
 vice-president. 
 
 4(). Any casual vacancy in the council, or in the offices of treasurer, Council may 
 secretary, or auditors of the society, may be filled up by the council. vacancieTiu 
 
 other offices. 
 
 Peocedure of Council. 
 
 47. The council shall meet quarterly, in the months of , , J^Ieetings of 
 
 , and , in each year, and at such other times as they shall ' ^ 
 
 appoint. The council may make such regulations as they think proper 
 
 as to the summoning and holding of meetings, and for the transaction 
 of business thereat, and they may adjourn any meeting, and may fi-om 
 time to time fix the quorum necessary for the transaction of business ; 
 but, until they shall otherwise determine, five members of the council 
 shall form a quorum. 
 
 48. The president alone or any two memlx-rs of the council may at "^Vho may 
 any time summon a meeting thereof. ^^"oTclTcu" 
 
 N
 
 178 
 
 ARTICLES OF ASSOCIATION. 
 
 Form 119. 
 
 Chairman. 
 
 How questions 
 to be aecided 
 at meeting of 
 council. 
 
 Power for 
 council to act 
 notwithstand- 
 ing vacancies. 
 Powers to 
 resign office. 
 When council 
 may declare 
 office of mem- 
 ber vacant. 
 
 49. The president, or, in his absence, the vice-president, shall take the 
 chair at all meetings of the conncil ; and if at any meeting neither of 
 them be present within ten minutes after the time appointed for holding 
 the same, the meml^ers present shall choose some one of their numV)er to 
 be chairman of the meeting. 
 
 50. Questions at any meeting of the council shall be decided by a 
 majority of votes, and, in case of an equality of votes, the chairman shall 
 have a second or casting vote. The voting as to the election of members 
 of the society shall be by ballot. 
 
 51. The conncil may act, notwithstanding any vacancy in their body, 
 so that the number be not reduced below . 
 
 52. A member of the council may at any time resign by giving notice 
 in wi'iting to the secretary. 
 
 5;1 If any member of the council shall, without leave of absence 
 gxanted by the council, be absent from the meetings thereof for a period 
 
 of consecutive months, the council may declare his office vacant, 
 
 and he shall thereupon cease to be a member of the council. 
 
 Powers of the 
 society vested 
 in council. 
 
 Powers of the Cottntil. 
 
 54. The mauagemt of the business and the control of the society shall 
 be vested in the council, who, in addition to the powers and authorities 
 by these articles expressly conferred, upon them, may exercise all such 
 powers and do all such acts and things as may be exercised or done by 
 the society, and are not hereby or by statute expressly directed or required 
 to be exercised or done by the society in. general meeting. 
 
 As to the effect of this clause, see supra, p. 151. 
 
 Specific powers 
 vested in 
 council. 
 
 55. Without prejudice to the general powers conferred by clause 54 
 hereof, the council shall have power : 
 
 (a.) To take or lease any buildings for the pposes of the society. 
 
 (&.) To pchase or otherwise acquire any books, newspapers, and 
 documents. 
 
 (f.) To determine from time to time the conditions on which members 
 may use the lil)rary and remove books, but so that no member 
 not practising within the town of N. shall be allowed to remove 
 any book from the library. 
 
 (d.) To determine what persons (if any), not being members of the 
 society, shall be allowed to use the library (without the privilege 
 of removing books), and to make, and from time to time repeal 
 and alter, rules and conditions as to such user. 
 
 {e.) To appoint and from time to time remove a librarian, and to fix 
 the remuneration to be pd for his services. 
 
 (/.) To delegate, subject to such conditions as they think fit, any of 
 their powers to committees, consisting of such member or 
 members of the council as they think fit, and to make such
 
 FOEMS. 170 
 
 regulations as to the proceedings of such committees as may Form 119. 
 seem expedient. " 
 
 See supra, p. 148. 
 
 (g.) To peton Parhamt in the name of the society. 
 (/i.) To enter into such contracts and do all such acts and things as 
 they think expedient for the pposes of the society. 
 
 Accounts. 
 
 5G. The council shall cause true accounts to be kept of the monies Accounts, 
 received and expended by the society, and the matters in respect 
 of which such receipt and expenditure takes place, and of the 
 assets, credits, and liabihties of the society. 
 
 57. The accounts shall be closed on the day of in each Annual 
 
 year, and a balance-sheet containing a summary of the ppty and 
 liabilities of the society on that day shall be made out. 
 
 58. Seven days before each annual meeting the accounts for the year Accounts to 
 
 ending with the day of last preceding such meeting, with all ^^ audited. 
 
 vouchers and receipts, and also the balance-sheet, shall be examined l)y 
 
 the auditors, who shall report thereon to such meeting. 
 
 50. A printed copy of the balance-sheet shall, previously to each Copy of 
 
 annual meeting, be sent to the members in the manner in which notices [jala^ice-sbeet 
 "' _ to be sent to 
 
 are hereinafter directed to be givefi. members. 
 
 Exclusion. 
 
 GO. Any member who shall fail in the observance of any regulation of Exclusion, 
 the society, or of any regulation or order of the council, or who shall in 
 the judgmt of the council have been guilty of any act or practice or 
 conduct calculated to bring discredit on the profession or to lower its 
 status, may be excluded fi'om the society by an extraordinary resolution. 
 Such member shall have seven clear days' notice sent him to attend the 
 meeting. Any member so excluded shall thereupon cease to be a member, 
 but without prejudice to Clause 12 hereof. 
 
 Any irregularity in the proceedings will invalidate the expulsion. Fisher v. 
 Keane, 11 C. D. 353. As to whether such a rule can be introduced by amend- 
 ment, Dawkins v. Antrohus, 23 Sol. J. 681; Labouchere v. Earl of WharncUffe, 
 13 C. D. 3iG ; see also Russell v. Russell, It C. D. 133. 
 
 XOTICER. 
 
 CI. A notice may be served by the society upon any member either Notices, 
 personally or by sending it througli the post in a prej^aid letter addi'essed 
 to such member at his registered address. 
 
 02. Any notice sent by post shall be deemed to have been served at As to sending 
 the time when the letter containing the same would be delivered in the ^If^^^ ^' 
 
 N 2
 
 180 
 
 AETICLES OF ASSOCIATION. 
 
 Form 119. ordinary course of the post ; and in proving such service ifc shall be 
 sufficient to prove that the letter containing- the notice was pro])crly 
 addressed and put into the post-office. 
 
 Names, addresses, and descriptions of subscribers. 
 
 Dated the day of . 
 
 WiTNP^.ss to the above signatures. 
 
 ,of . 
 
 Form 120. 
 
 Power to 
 acquire 
 
 business. 
 
 ]\Il,SCELLANEOUS CLAUSES. 
 
 For nse in Articles of Associafion. 
 1 . The directoi's may pchase or acquire upon such terms and under 
 such stipulations as to guarantee or otherwise, as may be agreed upon, 
 the business and goodwill of the sd Messrs. ■, as the same now stands. 
 
 The above was the authority given to the directors of Overend, Gurney, & Co., 
 Limited. " There is the largest possible power given to these gentlemen to buy 
 this, which was, in itself, a speculative business, and they are to do it entirely 
 in such manner as they may think expedient." Per Lord Hatherley, Overend, 
 ^c, v. Gurney, 1 Ch. 715. 
 
 It was held that the above power authorised the directors to purchase the 
 business and to undei'take the liabilities thereof. " I have no doubt whatever," 
 said Lord Chelmsford, " that the words ' as the same now stands ' must mean 
 that the business is to be taken over with its credits and liabilities, that is, as 
 the biisiness appeared in the books of the comimny." S. C, 5 H. L. 505. How- 
 ever it is usual in emj)owering directors to acquire a business, exjjressly to refer 
 to the liabilities. 
 
 Form 121. The directors may pchase, or otherwise acquire, and undertake, upon 
 Another power ^^^ch terms and conditions as they think fit, the business of a -, now 
 
 to acquire 
 business. 
 
 carried on by Messrs. 
 
 & Co., at , and all, or any pt of the 
 
 ppty and liabilities of the sd firm in connection with the sd business. 
 
 Form 122. The directors may, upon such terms and conditions as they think fit, 
 
 acquire all or any pt of the land and buildings known as the 
 
 Works, at , and of the j^Iant, machinery, fixtures, stock-in-trade, 
 
 chattels, and eflfccts, rights and privileges, in or about the sd works or 
 
 otherwise belonging to , in connection with the business carried on 
 
 there by him, and undertake all or any of the contracts and liabilities of 
 the sd , in relation to the sd business. 
 
 Another ijower 
 to acquire 
 business. 
 
 Form 123. 1- The holders of the preference shares shall be entled to receive out 
 Prefereiice^iml ^'^ ^^^^ profits of the CO, as a first charge, a cumulati\e preferential divi- 
 deferred dend at the rate of 10 p. c. p. a. on the amount, for the time l)eing, pd 
 
 .s ares. ^^^ ^^^ j.j^^ preference shares held by them respi\ely. 
 
 2. Tlie holders of the deferred shares shall l)e entled to receive out of 
 the profits of the co, as a second charge, a cumulative dividend at the rate 
 of 5 [). c. p. a. on the nominal amount of the defeiTcd shares held by them 
 respivcly.
 
 FOEMS. 
 
 181 
 
 ?>. The surplus profits shall be applicable to the paymt of dividend to Form 123. 
 the members in proportion to the nominal amount of the capital held ' — 
 by them respively. 
 
 Where the original capital of a company is divided into several classes of 
 shares, it is usual to insert clauses defining the rights of the holders in the pro- 
 fits, near the beginning of the articles of association, or justbefoi'e the dividend 
 clauses. 
 
 These clavises are usually entitled " Preference and Deferred Shares," or as 
 the case may be, and generally commence with a statement as to the capital, 
 e. g., " Of the capital mentioned in the memorandum of association, 10,000 
 shares shall be called preference shares, and 10,000 shall be called deferred 
 shares," and then proceed to define the rights of the holders. But where the 
 division is effected by the memorandum of association, the clauses defining 
 the rights of the shareholders can be intituled, " Appropriation of Profits," and 
 inserted near the beginning of the articles, or just before the dividend 
 clauses. 
 
 As to the form of the dividend clause wliere there are preference shares, <S:c., 
 see sinjra, p. 157, note to clause IIG. 
 
 In defining the rights of the holders of preference shares in regard to 
 dividends, it is necessary to ascertain whether the dividend payaVjle to them is 
 to be non-cumulative, i. e., contingent on the profits of each year being sufficient, 
 or cumulative, i. e., so that the deficiency of any one year is to be made uji out 
 of the profits of subsequent years. 
 
 Prima facie where one class of shares is to carry a dividend at a fixed rate in 
 preference to another class, the dividend will be cumulative, and therefore 
 payable out of the profits whenever accrxiing. Thus in Webb v. Earlc, 20 Eq. 
 557, jjreferencft shares had been created with a preferential dividend of lOL 
 per cent, per annum payable half-yearly, and it was held, that if the profits 
 of any year were insufficient to pay the dividend in full to the preference 
 shareholders, the deficiency ought to be made good out of subsequent profits. 
 See also Henry v. Great Northern Ry. Co., 5 De G. & J. COG ; G W. K. 87 ; 
 Matthews v. Great Northern Ry. Co., 28 L. J. Ch. 375; 7 W. R. 233; and 
 Forms 214, 215, infra. 
 
 Sometimes the word " cumulative " is used as above ; and there can be little 
 doubt that the addition of that word precludes any question as to the right of 
 the holders of preference shares to be paid arrears of dividends out of jjrofits 
 whenever accruing. See Webb v. Earle, ubi supra. 
 
 Not uncommonly where a dividend is intended to be cumulative it is 
 expressly j^rovided that the holders of the shares shall have " a right to resort 
 to the profits of subsequent years to make up any deficiency in the dividend 
 of preceding years." 
 
 If a dividend is intended to be non-cumulative, the clause must either be so 
 framed that there is no room to contend that it is cumulative, infra. Form 12G, 
 or it may be expressly provided that there shall be no right, in case of 
 deficiency, to resort to subsequent profits. 
 
 As to giving a preference in the distribution of assets, see Form 140. 
 
 1. Of the shares mentd in the memorandum of association of the co, Form 124. 
 
 10,000 shall Ije called preference shares, and 10,000 shall be called ~'^ : 
 
 ^ rreierence and 
 
 ordinary shares. ordinary 
 
 2. The holders of the preference shares shall be entled to receive out ^li^^'es- 
 of the profits of each year a preferential dividend for such year at the 
 
 rate of 6 p. c. p. a. on the amount for the time being, pd up on the 
 preference shares held by them res[)ively.
 
 182 
 
 AETICLES OF ASSOCIATION. 
 
 Form 124. 3. The surplus profits in each year shall be applicable to the paynit of 
 dividends to the holders of the ordinary shares in proportion to the 
 capital pd up thereon. 
 
 Sometimes where preference shares are to carry a non-cumulative dividend 
 it is thouofht better to frame the chiuse as above rather than expressly to 
 provide that there shall be no claim for arrears in case of deficiency in the 
 profits of any one year. 
 
 Form 125. 1- The holders of the guaranteed preference shares shall he entled to 
 
 'Z ~ , a cumulative preferential dividend of 8 p. c. p. a. on the nominal amount 
 •jTuaranteed ^ , 1 1 , • i 
 
 preference and of the preference shares held by them respu'cly. 
 
 ordinary .). Hubject to the rights of the holders of the guaranteed preference 
 
 shares, the holders of the ordinary shares shall be entled to be pd, out of 
 
 the surplus profits in each year, a dividend at the rate of 10 p. c. p. a. 
 
 for that year on the amount credited as pd up on the ordinary shares 
 
 held by them respively. 
 
 3. The residue of the surplus i)rofits in each year shall belong to and 
 ]>e divided among the members in proportion to the shares held by them 
 respively. 
 
 ■1. If at any time before the day of , 18 — , the dividends pd 
 
 to the holders of the guaranteed preference shares in respect thereof 
 (wheth(.'r the same shall have been pd out of the profits of the co, or 
 
 under the sd agrcemt of the day of ), shall amount in the 
 
 aggregate to 80 p. c. on the nominal amount thereof, then, and in such 
 case, the preference hinbefore gi\en to such shares shall cease to exist, 
 and thenceforth the guaranteed preference and ordinary shares shall rank 
 2)riri /iass2( for dividend. 
 
 It is hj no means uncommon to insert such a clause as above. 
 
 Contingent 
 termination 
 of preference. 
 
 Form 126. 
 
 Clause ]iro- 
 viding for 
 approjn-iation 
 of profits. 
 
 As already mentioned {sujrra, p. 181), the provisions as to payment of pre- 
 ferential dividends are sometimes inserted in a clause introduced in that part 
 of the articles which relates to the payment of dividends. The two following 
 clauses are examples : — 
 
 1. The profits of the co made during the financial year, or other period 
 comprised in the accounts sulanitted to the ordinary general meeting in 
 each year, shall be applical)le in oi'der of priority and manner following : — 
 
 First. To the paymt of a cumulative preferential dividend at the rate 
 of (I yi. c. p. a. on the capital pd nj) on the A. shares. 
 
 Secondly. To the paymt of a dividend for such period at the like rate 
 on the capital pd up on the B. shares. 
 
 Thirdly. Tho residue shall be applicable to the paymt of a further 
 dividend on the pd-up capital, or may l)e carried to reserve, or otherwise 
 dealt with as the co in general meeting determines. 
 
 Form 127. First. To the paymt of a divideiul at the rate of G p. c. p. a. for such 
 Another fonnT period on the capital pd up on the preference shares.
 
 FOEMS. ] 83 
 
 Secondly. Of the surplus sucli pt (not exceeding 10 p. c.) as the Form 127. 
 directors determine may be carried to the reserve fund to be established ' 
 psuant to clause hereof. 
 
 Thirdly. The balance, or a competent pt thereof, shall be applicable 
 to the paymt of a dividend for such period on the cajjital pd up on the 
 deferred shares at the rate of 5 p. c. i). a. 
 
 Fourthly. "What remains shall be applicable [as in Form 12G]. 
 
 First. To the paymt of a preferential dividend for such period at the Form 128, 
 rate of Ki p. c. p. a. on the capital pd up on the shares (other than the Another^ ^ 
 founders' shares). 
 
 Secondly. Of the surplus, four-fifths shall be applicable to the paymt 
 of further dividend on such pd-up capital. 
 
 Thirdly. The residue shall be divided rateably among the holders of 
 the founders' shares. 
 
 First and secondly, as in Form 12G. Form 128a. 
 
 Thirdly. Of the surplus, 10 p. c. shall be pd to the directors as further 
 reniuneratiou for their services ; 20 p. c. shall be caiTied to the redemp- 
 tion fund to be estabhshed as afsd ; and 70 p. c. [as in Form 12G, 
 
 The profits, &c., as in Form 12G. 
 
 1. In paying- to the members a dividend for such year or other period Form 129. 
 at the rate of G p. c. p. a. on the pd-up capital. Special form. 
 
 2. Of the residue, three-fourths shall be divided among such of the 
 members holding not less than five shares each as shall have contributed 
 to the co's business during such year or other period rateably in pro- 
 portion to the amount of the ft-eight contributed by them respively. 
 
 3. What remains shall be divided among the members in proportion 
 to the nominal amount of the shares held by them respively. 
 
 Occasionally profits are divided so as to j^ive members an inducement to deal 
 "with the company. This plan has sometimes been adopted with great success. 
 
 Redemption of Preference Shares. 
 
 (1) Each member entled to any of the preference shares mentd in the Form 130. 
 Memorandum of Association of the co shall hold the same subject to R^cjoinption 
 redemption out of the profits of the co applicable to that ppose as herein- 
 after provided, 
 
 Eedemption out of profits does not of course amount to a reduction of capital, 
 and would not seem open to objection, but it may be desirable to make the re- 
 demption one of the objects of the company. 
 
 (2) The redemption of the sd i)reference shares shall be effected by Redemptiou 
 the operation of a redemption funj^irwirich shall be created and formed ^"'"^
 
 184 
 
 ARTICLES OF ASSOCIATION. 
 
 Form 130. by means of the appropriation to that ppose of the proportion of net 
 profits of the co specified in clause hereof. 
 
 The dh'cctors shall invest the monies from time to time carried to the 
 credit of the redemption fund in or upon such investmts as they think 
 proper, with full power from time to time to ^'ary sucli investmts and to 
 realize the same as occasion may require. 
 
 {ij) AVhenever the sd redemption fund shall amount to 200/. or more 
 the directors shall apply the same in the re;lemption of so many of the 
 sd preference shares as it shall be competent to redeem upon the footing 
 that the sum payable for the redemption of each share shall be 10 p. c. 
 beyond the amount pd up thereon. 
 
 (4) The parlar preference shares to be redeemed on each occasion 
 shall be selected by lot in such manner as the directors may determine. 
 
 (5) The selection shall be made on such day and at such place as the 
 directors shall appoint, notice thereof being given in some London daily 
 newspaper at least one week previously, and every holder of a preference 
 share may attend thereat. 
 
 (G) Forthwith, after such selection, notice of the distinguishing 
 numbers of the preference shares drawn for redemption shall be given 
 to the members in manner hereinafter provided, or, if the directors think 
 fit, l:)y advertiscmt in a London daily newspaper. 
 
 (7) Where any preference share has been selected for redemption, the 
 CO shall, at any time after the expiration of one month after the selection, 
 upon demand in writing by the person entled to such share, pay to him 
 the redemption monies, and in the meantime such share shall cease to 
 carry dividends, and to confer a right of voting, or any other rights of 
 membership, but the directors may ai)ply any such redemption monies in 
 satisfon^jro fanfo of any lien the co may have on the share under clause 
 hereof. 
 
 (8) Upon paymt of the redemption monies payable in respect of any 
 preference share, the same shall, if recpiired by the directors, be sur- 
 rendered or transferred as they shall direct. 
 
 (9) If the redemption monies payable in respect of any share are not 
 by reason of the co's default pd within fourteen days after such demand 
 as afsd, they shall carry interest till paymt at the rate of 5 p. c. y>. a., 
 but in no other case shall such monies carry interest. 
 
 (10) Every preference share redeemed in manner afsd shall thence- 
 forth be deemed the p])ty of the co, and may be sold, re-allotted, or 
 otherwise disposed of by the directors as they think fit. 
 
 Investment. 
 
 Application to 
 redemption 
 and bonus of. 
 £10 per cent. 
 
 Selection. 
 
 How selection 
 made. 
 
 Notice of 
 drawing. 
 
 Payment at the 
 registered 
 office or 
 bankers of the 
 company. 
 
 Surrender. 
 
 Interest. 
 
 Effect of 
 redemption. 
 
 Form 131. There shall be jid to the directors as remuneration for theii- services, 
 
 the sum of /. per annum, and also the share of surplus jii-ofits specified 
 
 in clause hereof, [See Form 128.] Such remuneration shall be 
 
 Share of 
 surplus profits 
 to directors. 
 
 divided among them in such manner as the directors may fi-om time to 
 time agree [or in such manner that the chairman's sliares shall be double 
 that of any other director].
 
 FORMS. ]85 
 
 There shall be pd to the directors as remuneration for their services, Form 132. 
 -/. per annum, and also, in each year in which a dividend is paid to commission to 
 
 the members exceeding (I p. c. on the amoimt pd up on the shares held directors, 
 by them, the sum of [Kjc]/., in respect of every one p. c. of dividend so 
 pd in excess of G p. c. 
 
 The directors shall receive, by way of remuneration, in each year the Form 133. 
 
 sum of /., and such further sum as may be equal to 5 p. c. of the j)^g^.tyj.7 to 
 
 net profits of the co in that year, payable out of the surplus remaining have percent- 
 after paymt of the preferential dividend to the holders of A shares, and ^'-^^ °'^ i'™*^**- 
 of a di\"idend of 7 p. c. p. a. on the amount pd u[) on the ordinary 
 shares, so far as such surplus will extend, and all such remuneration 
 shall be divided so that there shall be given to the chairman of the 
 
 directors equal pts thereof, and to each of the other directors one 
 
 oqual pt thereof. 
 
 The directors may, from time to time, a})point a general manager of Form 134. 
 the business of the co, and may remove and discharge any such person Mana'^ers. 
 and appoint a substitute, and the directors shall take such security (if 
 any) for the good conduct and satisfactory discharge of the duties of 
 such general manager as they shall in their discretion think sufficient. 
 
 See Evans v. Coventry, 8 De G. M. & G. 835 ; 25 L. J. N. S. Ch. 191, as to 
 taking security. For appointment of firm see Form 270. 
 
 1. The sd shall be the first manager of the co, and shall not; Ije Form 135. 
 
 removable from office otherwise than by his own resignation or by special Appointment 
 resolution, and shall, while holding that office, devote the whole of his of first 
 time and attention to the business of the co, and shall exercise and per- ° 
 form the functions and duties prescribed by the directors. 
 
 2. The salary of the sd as such manager shall be at the rate of 
 
 /. i)er annum, payable monthly, on the first day of every month : 
 
 he shall also, while holding such office, be entled to a commission equal 
 to 5 p. c. on the net profits of the co in each year in which the same 
 
 shall be more than sufficient to pay a dividend at the rate of p. c 
 
 on the pd-up capital of the co. 
 
 3. The decloii of the directors, as to the amount of the net 
 X^rofits of the co in each year, shall be conclusive as against the sd . 
 
 1. The directors may, from time to time, provide for the managemt Form 136. 
 of the attairs of the co abroad in such manner as they shall think fit, and L,jeai mana^e- 
 the provisions contd in the four next fohowing clauses sliall be without ment. 
 l^rejudice to the general powers conferred by this clause. 
 
 2. The directors from time to time, and at any time, may establish Local Board. 
 any Local Boards or agencies for managing any of the affairs of the co 
 
 abroad, and may appoint any persons to be members of such local Board, 
 or any managers or agents, and may fix their remuneration. 
 
 3. The directors from time to time, and at any time, may delegate to
 
 186 
 
 ARTICLES OF ASSOCIATION. 
 
 Delegation. 
 
 Powei-s of 
 attorney. 
 
 Form 136. any person so appointed any of the powers, authorities, and discretions 
 for the time being vested in the directors, and may authorise the mem- 
 bers for tlic time being of any such Local Board or any of them to fill up 
 any vacancies therein, and to act notwithstanding vacancies, and any 
 such appointmt or delegation may be made on such terms and subject to 
 such conditions as the directors may think fit, and the directors may at 
 any time remo\'e any person so appointed, and may annul or vary any 
 such delegation. 
 
 4. The directors may at any time, and from time to time, by power 
 of attorney under the seal, appoint any })ersons to l)e the attornies of the 
 CO for such pposes and with such powers, authorities, and discretions 
 (not exceeding those vested in or exercisable by the directors under these 
 I)resents), and for such period ami subject to such conditions as the 
 directors may from time to time think tit, and any such appointmt may 
 (if the directors think fit) be made in favour of the members or any of 
 the members of any Local Board estal)lished as afsd, or in favour of any 
 CO, or of the members, directors, nominees, or managers of any co or 
 firm or otherwise in favour of any fluctuating body of persons, whether 
 nominated directly or indirectly by the directors, and any such power of 
 attorney may contain such provisions for the protection or convenience 
 of persons dealing with such attornies as the directors think fit. 
 
 In carrying on business abroad it is generally found that a wide power 
 of attorney under the company's common seal is requisite, and hence the 
 importance of providing accordingly. The same instrument can authorise the 
 attornies to exercise the powers of the Acts below mentioned, and to exercise 
 any other jjowers which it may seem desirable to delegate to them. See 
 s. 55 of the Act of 18G2, and s. 8 of the Conv. Act, 1882, 45 & 4G Vict. 
 c. 39. 
 
 Sub-delega- 
 tion, 
 
 Seals Act. 
 
 Form 136a, 
 
 Colonial 
 register. 
 
 5. Any such delegates or attornies as afsd may be authorised liy the 
 directors to sub-delegate all or any of the powers, authorities, and discre- 
 tions for the time being vested in them. 
 
 G. The CO may exercise the powers conferred by the Companies' Seals. 
 Act, LS04, and such powers shall accordingly be vested in the directors. 
 And the co may cause to be kept in any colony in which it transacts 
 business a branch register of members resident in such colony, and the 
 word " colony " in this clause shall have the meaning assigned thereto 
 by the Companies (Colonial llegisters) Act, 18S;> ; and the directors may 
 fi'om time to time make such provisions as they may think fit respecting- 
 the keeping of any such branch register. 
 
 The following is a more elaborate form : — ■ 
 
 ] . The CO may cause to be kept in Queensland, or in any other colony 
 in Australasia in which it transacts business, a branch register or registers. 
 of members resident in Queensland, or in such other colony as the case 
 may be. And the directors may from time to time ai)])oint an authority 
 in (Queensland, or in any other colony in which a branch register is kept, 
 to a])prove of or reject transfers, and to direct the registration of ap- 
 proved transfers in the branch register of such colony, and every such
 
 FOEMS. 187 
 
 authority may, iu respect of transfers or other entries proposed to be Form 136a. 
 rejjistercd iu the lu'anch register for which such authority is appointed, 
 exercise all the jiowers of the directors iu the same manuer and to the 
 same extent aud effect as if the directors themselves \Yere actually present 
 in the colony and exercised the same. 
 
 '1. Subject to the provisions of the Companies (Colonial Eegisters) Act, 
 1H>:>3, and to the foregoing pro\isions, the directors may, from time to 
 time, make such provisions as they may think tit respecting the keeping 
 of such branch reu-ister or registers. 
 
 Any mtge, bond, or other security bearing the common seal of the co Form 137. 
 aud issued for ^■alual)le conson, shall be l)iuding on the co, not- -^yi^.^^^ 
 Avithstauding any irregularity touching the authority of the directors to securities 
 issue the same [and no person taking any such security shall be bound be^leemed 
 to ascertain that the amount then due l)y the co on mtge or other se- valid. 
 curities d()es not exceed one-half of the nominal capital of the co]. 
 
 The words in brackets will of course be modified to suit the circumstances. 
 The above clause is occasionally inserted. In re Patent File Co., G Ch. 85. 
 But it would seem to be merely the expression of the rule settled in a series of 
 cases, of which Royal British Bank v. 2\irquand, G E. & B., is a leading one. 
 The rule is that where a company is regulated by an Act of Parliament, 
 general or special, or by deed of settlement or memorandum and articles of 
 association registered in some public office, persons dealing with the directors 
 are bound to read the Act and registered documents, and to see that the pro- 
 posed dealing is not inconsistent therewith, but that is all : they need not 
 inquire into the regularity of the proceedings. They may assume that all is 
 being done regularly. Thus where the articles give power to borrow with the 
 sanction of a general meeting, a lender need not inquire whether the resolution 
 has been passed. Royal British Bank v. Turquand, ubi su])ra ; Agar v. Athenwum 
 Society, 3 C. B. N. S. 725 ; G W. E. 277. And see Ex parte Eagle Co., 4 K. & J. 
 549 ; G W. E. 779, as to execution of policies. In re Land Credit of Ireland, 4 
 Ch. 4G0, it was held that as the company had power to accept bills, certain ac- 
 ceptances could not be impeached on the ground that they were irregularly 
 issued. So also it has been held that the pviblic is entitled to assume that a 
 person ostensibly acting as the comjmny's agent or director has been duly ap- 
 pointed. Smith V. Hull Glass Co., 11 C. B. 897; In re County Life, 5 Ch, 288 ; 
 Mahoney v. East Holyford Co., L. E. 7 H. L. 8G9. 
 
 But it would seem that a i>erson is not entitled to assume that a special 
 resolution has been passed. Irvine v. Union Bank, 2 App. Cas. 379. 
 
 No pchase, sale, conti-act, or agreemt, made or entered into by Form 138. 
 the directors, or act done l»y the directors, to which the assent of the ^^^^^ ^^^^^^g^ 
 CO iu general meeting shall be given, shall be afterwards impeached or to by company 
 objected to by reason that the same is not within or is opposed to the "^pej^ched as 
 business and objects of the co, or that a dissolution of the co may be uJfra vires. 
 therel)y rendered necessary, or on any other ground whatsoever. 
 
 A clause to the above effect is sometimes inserted. See Marshall v. Glamorgan 
 Iron and Coal Co., 7 Eq. 137, in which Giffard, V. C, assumed that it was valid. 
 But having referred to the Ashhury Co. v. Riche, L. E. 7 H. L. G53, it seems ex-
 
 188 
 
 AETIC'LES OF ASSOCIATION. 
 
 Form 138. tremely doubtful whether it would be held valid. See also Hope v. International 
 " Financial Society, •!■ C. Div. 327 ; and Garden Gully, ^c, Co. v. McLister, 1 Aiip. 
 
 C'as. 54. 
 
 Form 139. In cunsoii of tlic great labour, expenses, and risk ^vhicli A. B., 
 
 Remuneration ^''^^^ ^^ ^^^^ subscribers of the inenioranduni of association, has incurred 
 
 of promoter, and been put to in and relating to the promotion and formation of the 
 
 CO, and in registering the memorandum and articles of association thereof, 
 
 the CO shall when and so soon as shares shall have been allotted, 
 
 pay to the sd A. B., his exs, ads, or assigns, the sum of ■ /. 
 
 See Croshey v. Bank of Wales, 1 Giff. 317 ; Madrid Bank v. PeUy, 7 Eq. U2 ; 
 Englejield Colliery Co., 8 C. Div. 388. 
 
 As between the company and a person who is not a party to the articles of 
 association such a clause as the above does not amount to a contract on which 
 the company could be sued at law. Melbado v. Porto Allegro Ry. Co., L. R. 9 
 C. P. 503 ; Eley v. Positive Government Co., 1 Ex. Div. 88. But if the company 
 adopts and takes the benefit of the acts of its promoters they may, at any rate 
 Avhere the regulations provide that they shall be paid out of the funds of the 
 company, have an equitable right to be paid accordingly. Thus in Terrell v. 
 Hutton, i H. L. 1093, the regulations (Art. 41) jDrovided that a sufficient part 
 of the funds should be a^jpropriated in payment of the pi-eliminary exi^enses, 
 and the solicitor who had acted anterior to and after the formation was held 
 entitled to prove. The Lord Chancellor said, " Quite independently of the 
 Winding-up Acts it has been long ago established (Lord Cottenham eniinciated 
 the proposition m.any times) that these companies caiinot take the benefit of 
 what has been done by those who have formed them without thereby incurring 
 responsibilities to those persons. Now that observation, which has been 
 extended to a very great class of cases inider the Winding-up Acts, aj^plies in 
 my mind pre-eminently to a solicitor who is doing that without which the 
 company never could have existed. It is an old and well-known principle in 
 the law that when one person does an act as an agent for some other person, 
 though then quite unknown to that other, if afterwards the latter adopts the 
 Act, it is just the same as if he had authorised it from the beginning. I 
 think that principle will, with the aid of the 44th article, enable your 
 Lordships safely and distinctly to come to a conclusion here. I am not certain 
 that it would not have been sufficient without that article. That which was 
 done for the necessary purpose of forming the company, or in the jirosecution 
 of the necessary business of the company after it was formed, is to be treated 
 as a debt of the company ab initio." Lord Brougham and Lord St. Leonards 
 concurred, the latter saying i^iter alia that " any argument to show that there 
 would be a difficulty, in the way of recovering at law ... is of itself a 
 sufficient reason for giving the party relief in equity if the demand constitutes 
 an equitable debt." And see Hereford Engineering Co., 2 C. Div. 021 ; and 
 comj^are with Empress Engineering Co., IG C. Div. 125 ; and Ex parte Pearce 4' 
 Co., 32 W. R. 131. Tlie two last-mentioned cases go to show that where a 
 company agrees with A. [e.g. the vendor] to pay B. a sum of money [e.g. for 
 the preliminary expenses] B. cannot sue the company for the amount under the 
 contract, though he may be entitled to make some claim on the footing that 
 the company has taken the benefit of his services. Terrell v. Hutton was not 
 cited in these cases. But B. can sue if a trust can be made out, e.g. if it is 
 declai-ed that A. is trustee for B. Empiress Engineering Co., ubi supra. And 
 see 3Iurray v. Flavell, 49 L. T. G90. 
 
 Form 139a. Every director, manager, auditor, trustee, member of a committee, 
 Secret claufiT ^^^^^^'> Servant, agent, accountant, or other person employed in the
 
 FOEMS. 189 
 
 business of the co, sliall, l)efore entcriiiti: upon his duties, sign a de- Form 139a. 
 clon, pledging himself to observe a strict secrecy respecting all trans- "~ 
 
 actions of the co with the customers and the state of accounts with 
 individuals and in matters relating thereto and shall ])y such declon, 
 pledge himself not t(j reveal any of the matters which may come to his 
 knowledge in the discharge of his duties, except when required so to do 
 by the directors or by any meeting, or by a court of law, or l)y the person 
 to whom such matters relate, and, except so far as may be necessary, in 
 order to comply with any of the provisions in these presents contained. 
 
 The surplus assets of the co upon the winding up thereof shall be Form 140. 
 applied : first, in repaying to the holders of the sd preference shares the hq^ surplus 
 amount pd up thereon ; then, in repaying to the holders of the defen'ed ''^^^ets to be 
 and other shares the amount pd up on such shares ; and the residue (if 
 any) shall be divided among the meml)ers in proportion to the nominal 
 amount of the capital held by them respively. 
 
 In the absence of special provision the holders of preference shares stand in a 
 winding up on a level with the holders of the ordinary shares. In re London 
 Indiaruhher Co., o Eq. 519 ; Griffith v. Bagot, G C. D. 511. See sujyra, p. 16G. 
 
 If the CO shall be wound up the surplus assets shall be applied, in the Form 141. 
 first place, in repaying to the holders of the A. shares the amount pd up p,-eference to 
 thereon, and the residue shall l)elong to the holders of the B. shares. liolders of A. 
 
 shares. 
 
 In the event of the co being wound up the surplus assets remaining Form 142. 
 after the return of the whole of the pd-up capital shall belong as to nine- Founders' ' 
 tenths to the holders of the shares other than the founders' shares, and as shares, 
 to the residue to the holders of the founders' sliares. 
 
 In the event of the co being wound up the surplus assets thereof shall Form 143. 
 be applied : first, in repaying to the holders of the shares other than g gj^j_ * 
 
 those to be issued pursuant to the said agreemt of the day of , 
 
 the full amount pd up on the shares held by them respectively ; secondly, 
 in paying to the holders of the shares, to be issued pursuant to the sd 
 agreemt, the amount credited as pd up thereon ; and the residue (if any) 
 of such surplus assets shall belong to and be di\"ided among the members 
 in proportion to the nominal amount of capital held by them.
 
 EESOLUTIONS. 
 
 mTRODUCTORY NOTES. 
 
 Ordinary tj\^^^ rc<2:ulatioiis of a company <2;ciiera]]y provide that divers acts shall 
 
 he done hy the company in general meeting — e.ff., that officers shall be 
 appointed at the ordinary general meeting, or that the directors may 
 borrow money or declare a dividend or convert shares into stock with 
 the consent of the company in general meeting. In such cases the act 
 will be done on the consent given by a resolution of the memljers 
 present in person, or by proxy, where ju-oxies are allowed, at a general 
 meeting of the company. AVhether the meeting should be an ordinary 
 or an extraordinary one must depend on the nature of the business and 
 the regulations \_stq)ra, p. 135]. The meeting must have been duly 
 called [sup-a, p. 1?)4]. A proper quorum must be present [s7q/m, 
 p. 1:55]. If a poll is duly demanded regard must be had to the number 
 of votes to which each member is entitled by the regulatious of the 
 company. 
 
 With regard to "special" and "extraordinary" resolutions: — It is 
 extremely common to provide by the regulations that certain acts shall 
 only be done by special resolution of the company, or l>y extraordinary 
 resolution. And, moreover, the Acts of 18(!2 and 1SG7 require or 
 eual)le a company to do various things by special or extraordinary 
 resolutions, as will be seen in the note? to the following resolutions. See 
 also index under " Special Resolution." 
 
 It will be convenient here to state what is meant by the expressions 
 special resolution and extraordinary resolution respectively ; — 
 
 j^j , . 1. As to a special resolution : Section 51 of the Act of 18C2 provides 
 
 passing .spcuiul that t 
 
 resolution. 
 
 " A resolution passed by a company under this Act shall he deemed to be 
 special whenever a resolution has been passed by a majority of not less than 
 three-fourths of such members of the company for the time being entitled ac- 
 cordino- to the regulations of the company to vote, as may be present in person 
 or by proxy (in cases where Vjy the regulations of the company proxies are al- 
 lowed), at any general meeting of which notice specifying the intention to jn-o- 
 pose such resolution has been duly given, and such resolution has been confirmed 
 by a majority of such members for the time being entitled according to the 
 regulations of the compauy to vote, as may be present 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
 
 INTRODUCTORY NOTES. Iq^ 
 
 date of the meeting at -which such resolution was first passed : at any nieetin'^ 
 mentioned in this section, unless a poll is demanded by at least five memVjcrs. 
 a declaration of the chairman that the resolution has been carried shall be 
 deemed conclusive evidence of the fact, without proof of the number or pro- 
 portion of the votes recorded in favour of or against the same : notice of any 
 meeting shall, for the purposes of this section, be deemed to be duly given and 
 the meeting duly held, whenever such notice is given and meeting held in 
 manner prescribed by the regulations of the company : in computing the ma- 
 jority 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. 
 
 Not less than fourteen days in the above section means fourteen clear days. 
 
 '2. As to an extraordinary resolution : Section 121) of the Act of 18G2 What is an 
 provides that :— extraordinary 
 
 ^ resolution. 
 
 " For the purposes of this Act any resolution shall be deemed to be extraor- 
 dinary which is passed in such manner as would, if it had been confirmed by a 
 subsequent meeting, have constituted a special resolution as hereinbefore 
 defined." 
 
 As regards the quorum of a meeting to pass a special or extraordinary Quorum. 
 resolutioTv, the section provides that the meeting shall he deemed to be 
 duly held whenever it is held in manner prescribed by the regulations, 
 and it follows that such quorum as the regulations prescribe must be 
 present. Camhrian Co., 23 AV. R. 405 ; 31 L. T. X. S. 773. 
 
 Sometimes the quorum of a general meeting provided by the articles 
 is so large that all the existing members if assembled would not consti- 
 tute a quorum, e.g., where the quorum is to consist of a fixed numl)er of 
 members, say 1<), holding a fixed proportional of capital, e.g., ](),00(>/., 
 and the company proves abortive. But in such case it is conceived 
 that as it is impossible to comply with the clause it becomes inoperative, 
 and section 52 of the Act applies. Brick ^- Stone Co., W. X., ]S78, 14U; 
 22 S. J. ()25. That section is as follows : — 
 
 In default of any regulations as to voting every member shall have one vote, 
 and in default of any regulations as to summoning general meetings a meeting 
 shall be held to be duly summoned, of which seven days' notice in writing has 
 been served on every member in manner in which notices are required to be served 
 by the Table marked A. in the first schedule hereto, and in default of any regula- 
 tions 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 Vje chairman 
 of such meeting it shall be competent for any person elected by the members 
 present to preside. 
 
 Where a question is put by the chairman, it is usual, in the first Show of hands, 
 instance, to take a show of hands, and, unless the regulations otherwise 
 provide, this course should be adopted. In. re Horhury Bridge Co., 11 
 €. Div. 109. And it appears from this case that upon a show of hands 
 2)roxies are not to be regarded^ — uuless, indeed, the regulations otherwise 
 provide— and the number of hands only is to be counted. See also The 
 Queen v. Government Stock Co., 3 Q. B. D. 442 ; Pulbrook v. New Civil 
 Servile, 2G AV. R. 11. 
 
 As to notices convening meetings to pass resolutions, whether special, Notices of 
 extraordinary, or otherwise, see infra, Form 183, ct seq^. meetmgs.
 
 192 
 
 KESOLUTIONS. 
 
 Notices to 
 registrar. 
 
 Chainium's 
 declaration. 
 
 As to notices to be given to registrar of joint-stock companies upon 
 passing of special resolutions, see infra, Form 10."», el soq. 
 
 The regulations generally provide tliat where a i)oll is not demanded, 
 the chairman's declaration shall ])e sufficient or conclusi\'e evidence. 
 See si/jiir/, p. loC. And it will be observed that in the case of a si)ecial 
 or extraordinary resolution the Act makes the declaration conclusive. 
 Sec section 5] al)ovc. 
 
 It has been held that the word "conclusi\"e" operates for all purposes, 
 e.g., so as to exclude evidence that there was no quorum. Re Brynmmrr 
 Coal Co., W. N., 1877, 45. However, too much reliance must not be 
 placed on that decision, for section 'A merely jnakes the declaration con- 
 clusive when it is made "at any meeting mentioned in this section," and it 
 seems more than doubtful whether a meeting, at which a quorum is not 
 jireseut, or not duly convened, can ]:»e considered such a meeting. How- 
 ever, it is expedient to ol)tain the declaration in all cases where a poll is 
 not duly demanded. 
 
 Where the declaration is made at a meeting duly called and con- 
 stituted, it is no doubt conclusive that the requisite majority has voted 
 in favour of it, and accordingly where the regulations merely say that the 
 declaration is to be "sufficient evidence," th^i mQim'&j^rimd facie evidence. 
 Re Horlnn'H Ptmhje Co., vVi siqyra.
 
 EE SOLUTIONS. 
 
 That the articles of association be altered in manner following : — Form 144. 
 
 ia.) Article 5 shall be cancelled. 77;^ ~. , 
 
 ^ -' Alteration of 
 
 (b.) In article 7 the word "fonr" shall be snl)stituted for the word articles. 
 
 "seven." 
 (c.) The following article shall be substituted for Article 20, namely, 
 
 " The CO may," &c. 
 (d.) The following- article shall lie inserted after Article 24, namely, 
 
 '2ia, " The directors may," &c. 
 (f.) The directors may at any time, &c., and Article 30 shall l)c 
 
 modified accordingly. 
 
 Section 50 of the Act provides thiit : — 
 
 " Subject to the provisions of this Act, and to the conditions contained in the 
 memorandum of association, any company formed under this Act, may, in 
 general meeting from time to time, by passing a special resolution in manner 
 hereinafter provided, [see supra, p. 190], alter all or any of the regulations of 
 the company contained in the articles of association or in the table marked A. 
 in the first schedule, where such table is applicable to the company, or make 
 new regulations to the exclusion of or in addition to all or any of the regu- 
 lations of the company, and any regulations so made by special resolution shall 
 be deemed to be regulations of the company of the same validity as if they 
 had been originally contained in the articles of association, and shall be 
 subject in like manner to be altered or modified by any subsequent special 
 resolution." 
 
 A company cannot by special resolution authorise or ratify an act ultra vires, 
 in the sense being beyond the objects, of the company. Ashhury, ^'c, Co. v. 
 Rlche, L. E. 7 H. L. 653 : Hope v. International Financial Society, 4 C Div. 327. 
 Nor can it by special resolution infringe the rights of any member, e.g., by 
 creating preference shares where there is no power (Hutton v. Scarborough Cliff 
 Hotel Co., 13 W. R. 1059), or by converting shares of one class into shares 
 of another, whei'e there is no power ; or by imposing any further liability 
 (Teasdale's case, 9 Ch. 54), or by capitalizing arrears of dividends; or by 
 depriving any member of the right to vote, that being an individual right of 
 property. Pender v. Liishington, (j C. D. 70 ; see Harper v. Paget, infra, p. 197 ; 
 Fox's case, 6 Ch. 170 ; Bird v. Bird's Co., 9 Ch. 358. But with these restric- 
 "tions a company can alter its regulations as it thinks fit. Walker v. London 
 Tramways Co., 12 C. D. 705, notwithstanding a prohibition therein contained. 
 
 Where a resolution is intended to authorise or effect something not authorised 
 by the regulations as they stand, it is desirable, in the first place, to alter the 
 regulations so as to give the necessary authority and then to exercise that 
 authority. See Imperial Hydropathic Co. v. Hampson, 23 C. Div. 1, where Cotton, 
 L. J., said, " In my opinion it is an entire fallacy to say that because there is 
 power to alter the regulations, you can by a resolution which might alter the 
 
 O
 
 194 
 
 EESOLUTIONS. 
 
 Form 144. regulations, do tliat which is contrary to the regulations as they stand in a 
 
 -particular and individual case." See, however, what Mellish, L. J., said in 
 
 Teasdale's case, 9 Ch. 51. Accordingly where it is desired to remove an officer 
 and the articles give no power, first pass a special i-esohition to the effect that the 
 company in general meeting may remove any officer, and then by ordinary resolu- 
 tion exercise the power. There wovild not seem to be any objection to passing the 
 resolution for removal at the meeting at which this special resolution is confirmed, 
 or at a meeting held immediately afterwards. So when the articles restrict the 
 borrowing powers, and it is desired to borrow in excess, first the articles must 
 be alterecVand then the authority given. 
 
 Form 145. 
 
 New regula- 
 tions. 
 
 New articles 
 adopted. 
 
 That the regulations coiitd in the printed documt snhmitted to the 
 meetino-, and for the ppose of identification subscribed by the cliairman 
 thereof, be and the same are hby approved, and tliat such reg'ulations be 
 and they are hby adopted as the regulations of the co, to the cxclusiou 
 of all the existing regulations thereof. 
 
 Where a large number of alterations have to be made, it is generally more 
 convenient to adopt new regulations. And this course may be expedient where 
 the wisdom of the alterations is apparent to the board ; but it is not desired 
 to point out the exact nature of the proposed alterations. Where this course 
 is adopted, a copy of the new regulations should lie for inspection at the 
 office, and the notice convening the meetings should state the fact ; and in. 
 some cases it may be deemed exjjedient to send out printed copies with the 
 notices. Where it is desired that the meeting shall be at liberty to amend 
 the draft at the meeting, the notice miist be specially framed, e. g., let it con- 
 vene the meeting (1) to consider and, if thought fit, approve the di-aft new 
 regulations which will be submitted to the meeting ; and in the event of the 
 approval thereof, with or without modifications, (2) to consider and, if thought 
 fit, to pass a resolution to the effect " that the new regulations already approved 
 by this meeting, and for the purpose," &c., as in Form 145. 
 
 When new regulations are adopted, care must be taken not to insert any 
 claiise not warranted by the memorandum and original regulations, e. g., if 
 there was originally no power to create preference shares, the power cannot be 
 taken by special resolution. See infra. 
 
 Form 146. That the regulations contd in Table A, in so far as they apply to 
 
 ^r 7^7 — ; — ^, this CO, be altered as follows : — ■ 
 Alodification of 
 
 Table A. 1. In clause, itc. 
 
 Form 147. 
 
 Increase of 
 ctiintal. 
 
 That the capital of the co be increased to 50,000/., by the creation of 
 2,000 new shares of 5/. each. 
 
 The power to increase the cajjital is generally made exerciseable by the 
 company in general meeting, i. e., by a simple resolution, or by special or 
 extraordinary resolution, or by the comijany simply. In the last case the 
 directors can generally exercise the power under their general powers. See 
 p. 151, suj)ra. 
 
 See further as to inci-ease of capital and creation of jireference shares, sui^-a, 
 p. 181, et seq. 
 
 Whether the capital be increased by resolution of the company, or by 
 resolution of the directors, notice to the registrar must be given within fifteen 
 days from the date of the passing of the resolution, or in default the company 
 and every director and manager will be liable to a penalty of 5L per day. See 
 further, infra, p. 217, s. 31 of the Act. 
 
 Upon increasing the capital, it is not necessary to purport to alter the memo- 
 randum of association. Camjibell's case, 9 Ch. 21.
 
 POEMS. 195 
 
 As to the Issue of Preference Shares. Forni 147. 
 
 Power to increase capital can, as already mentioned [supra, p. 129], be 
 taken by special resolution where the articles do not contain the necessary 
 authority. 
 
 But the new shares cannot be given any preference or priority over the 
 shares in the original capital, unless the memorandum, or articles as originally 
 drawn, contains the necessary authority. 
 
 If both memorandum and articles of a company are silent on the subject, 
 it is an implied condition that the members shall be entitled to rank equally 
 as regards dividend without any preference or priority between themselves, 
 and as s. 12 of the Act (see sujjra, p. 70), prohibits, with certain exceptions, 
 any alteration of the conditions contained in the memorandum, this condition 
 is unalterable. The implication, however, does not arise when the memo- 
 randum provides for the issue of preference shares ; and it is rebutted where 
 the articles registered at the same time as the memorandum award pre- 
 ferential rights, or authorise the issue of preference shares. Hutton v. Scar- 
 borough Cliff Hotel Co., 2 Dr. & Sm. 51 1 (1) ; 13 L. T. 57 ; 13 W. K. 1059 ; 
 Melhado v. Hamilton, 29 L. T. N. S. 3G1 ; 21 W. S. G19 ; Harrison v. Mexican 
 Railway Co., 19 Eq, 3G8 ; Bangor, t\'c., Co., 20 Eq. 59; Pulhrook v. Neiv Civil 
 Service Co., 2G W. R. 11. 
 
 Not to be able to issue preference shares is often found a serious incon- 
 venience and loss to a company. 
 
 And it is now well settled that a power to issue preference shares inserted 
 in the articles is sufficient (Harrison v. Mexican Ry. Co., vhi supra), the practice 
 which at one time was not uncommon of refen-ing to the issue of preference 
 shares in the capital clause of the memorandum has, to a considerable extent 
 been abandoned. See supra, p. 70. 
 
 Power in the articles to increase the capital " by the issue of new shares of 
 such nominal amount, and on such conditions as such resolution may deter- 
 mine," is not sufficient to authorise the issue of preference shares. Melhado v. 
 Hamilton, 21 W. E. G19 ; 29 L. T. N. S. 3G1. 
 
 But where the articles aiithorise an increase of capital by the issue of new 
 shares " with such rights and privileges, or with such restrictions and on siich 
 terms and conditions as the company in general meeting directs," preference 
 shares can be created. Wehb v. Earl, 20 Eq. 5.5G. 
 
 Where there was power to increase the capital in siich manner, and to 1>e 
 issued with and subject to such rules, regulations, privileges and conditions as 
 the company, &c., should think fit, the Master of the Rolls held that the words 
 "privileges and conditions "were words of extensive meaning, and fully autho- 
 rised the issue of new shares with a preference both as regards dividends and 
 in a winding up. Harrison v. Mexican Ry. Co., itbi supra. 
 
 Of course a company may only have power to give a preference as regards 
 dividends. But it may be very desirable, especially Avhere new shares are to be 
 issued, to provide that the holders thereof shall be repaid their capital out of 
 the assets in priority to the other members. See the observations on this point 
 of Malins, V.-C, Eclipse Gold Mining Go., 17 Eq. 190. 
 
 Whether the company can confer this privilege must depend on the con- 
 struction of the articles. Power for the company to increase its capital " upon 
 such terms, and either with or without special privileges or 2>references to the 
 holders of the shares in such increased capital as it may from time to time 
 deem expedient," enables it to give a preference as regards capital as well as 
 dividends. In re Bangor, dij'c., Co., 20 Eq. 59. 
 
 But there is a great distinction between creating shares having a jireference 
 over those already issued, and in creating shares with deferred rights. And 
 it would seem that shares with only a deferred right to dividend may be 
 issued without any special authority in the articles as originally framed, for 
 the persons who take such shares will be bound by their contract, and so will 
 their transferees. Ashton Vale Iron Company v. Abbot, W. N> 187G, 119. 
 
 o 2
 
 19G 
 
 EESOLUTIONS. 
 
 Form 148. 
 
 Preference 
 shares. 
 
 The followiiifif arc sonic examples of resolutions creatin<( preference 
 shares of ditt'erent kinds : 
 
 Tliat the capital of the co he increased to 25,000/. l)y the creation of 
 2,(H»0 new shares of 5/. each, to be called preference shares, and to confer 
 on the holders thereof the rij^ht to a fixed cumulative preferential divi- 
 dend at the rate of (! p. c. p. a. on the amount for the time being pd up 
 
 on such shares [which dividend shall be i)ayable half-yearly on the • 
 
 day of and day of j. 
 
 Another form. 
 
 Form 149. ^' That the capital be increased to 30,000/. Ijy the creation of 10,0(>0 
 new shares of 1/. each. 
 
 2. That the new shares be called preference shares, and that the 
 holders thereof l)e entid to a preferential dividend, at the rate of 5/. p. c. 
 p. a., payable out of the jirofits of each year, without any right in case of 
 deficiency to resort to the ])rofits of subsequent years. 
 
 3. That in the event of the co being wound up, the holders of the sd 
 preference shares shall be entld to have the surplus assets of the co 
 applied in the first place in repaying to them the amount pd up on the 
 preference shares held by them respively, l)ut that the residue of such 
 surplus assets shall belong to and be divided among the other members 
 of the CO. 
 
 Form 150. 
 
 Variation. 
 
 The following may be used instead of Clause 2 above : — 
 That the new shares shall be called ]ireference shares, and that the 
 holders thereof shall be entld to be pd out of the profit of each year a 
 preferential dividend for such year at the rate of 5/. p. c. 
 
 It is sometimes preferred because it does not expressly call attention to the 
 contingency of the profits being deficient. In either case the dividend will be 
 non-ciimnlative. See supra, p. 195. 
 
 Form 151. 
 
 A. and B. 
 shares. 
 
 1. That the capital of the co be increased to 100,000/. by the creation 
 of 3,000 new shares of 10/. each. 
 
 2. That the new shares be called A. shares, and that the holders thereof 
 be entld to a cumulative preferential dividend at the rate of fi p. c. p. a. 
 on the nominal amount of such shares, which dividend shall he payable 
 half-yearly, on the day of and day of . 
 
 3. That the co shall be entld to create further new shares to rank in 
 all reB\icctfi pari jxissu with the said A. shares, l)ut so that the aggregate 
 amount of the A. shares for the time being issued, and of such further 
 new shares, shall not at any one time exceed one-half the amount of the 
 pd-up capital of the co. 
 
 Where it is desired to reserve such a power as above, express jjrovision should 
 be made accordingly, otherwise the company will not be permitted [unless 
 indeed the articles contain a clause as above, Form 117, cl. 45a.j to derogate 
 from the rights of the holders of the preference shares. Thus in the recent 
 oase of the Argentine Tramways Co., Limited, the capital was divided into pre- 
 ferred and deferred shares. The latter (100,000L) had been issued as paid-up
 
 FORMS. 
 
 197 
 
 to the vendor. Arrangements were made by the directors for the surrender of Form 151. 
 
 the deferred shares in consideration of 20,000L new preferred shares to rank in ^^ — 
 
 all respects equally with the original preferred shares. Pursuant to this ar- 
 rangement a resolution for the creation of the new shares was unanimously 
 passed at an extraordinary meeting of the company, and a further meeting for 
 its confirmation was called. Meantime the action of Harper v. Paget was 
 brought by one of the holders of original preferred on behalf of himself and all 
 other the preferred shareholders in the company against Lord Alfred Paget 
 and other directors and the company, seeking for an injunction to prevent the 
 carrying of the resolutions into effect. And the injunction was granted. See 
 "Orders," infra. 
 
 Sometimes it is considered better to give an implied power to modify the 
 rights attached to the holders of preference shares, e.g., " No new share entitled 
 to rank jMri passu with or to any preference over the said A. shares shall [before 
 
 the day of ] be issued by the company without the consent in wi-iting 
 
 of the holders of two-thirds of the A. shares for the time being outstanding." 
 
 4. That tlic A. shares shall not confer any right of votiiiu- at any 
 j:,'oneral meeting of the co, nor shall they (|nalify any person to be a 
 director of the co. 
 
 "). That in the event of the co being wonnd up, the surplus assets 
 thereof shall be api)lied in the first place in repaying to the holders of 
 the A. shares, and of any other shares entld to rank pi/ri passu with 
 them, the full amount pd up thereon, and that subject as afsd, such 
 surplus assets shall l)elong to and be divided among the other members 
 of the CO. 
 
 0. That the directors be and they are hby authorised to issue the sd 
 4,o(i0 shares to such persons, and to be pd for by such instalmts or 
 otherwise as they think fit, and without being bound to offer the same or 
 any of them to existing members of the co. 
 
 1. That the capital, &c. Form 152. 
 '2. That the sd new shares be called " new preference guaranteed Guaranteed 
 
 shares," and that the holders thereof be entled to a cumulative ])vc- P»"efereuce 
 
 . . shares. 
 
 ferential dividend at the rate of 12 p. c. p. a., on the amount for the time 
 being pd up on such shares, such dividend to be payable in priority to 
 all other dividends except those payable to the holders of the existing 
 preference shares. 
 
 3. That in the event of the co being wound up [siquv, p. lltC, 
 iUKfa fis mv fa n (US']. 
 
 Sometimes a power to convert preference into ordinary shares is given. Form 153. 
 Thus :— 
 
 Any holder of such shares may give the co six calendar months' 
 notice in writing of his desire to convert the preference shares held by 
 him or any pt thereof, into ordinary shares, and upon the expiration of 
 such notice the same shall be deemed to l)e converted accordingly, and 
 shall thenceforth confer the same rights and privileges as the other 
 ordinary shares in the co's capital.
 
 198 
 
 EESOLUTIONS. 
 
 Conversion of 
 shares into 
 stock. 
 
 Form 154. That the lo,(iOO shares in the capital of the co which have been issued 
 and fully pd up be converted into stock. 
 
 By section 12 of the Act of 18G2, any company limited by shares may so far 
 modify the conditions contained in its memorandum of association, if authorised 
 so to do by its regiilations as originally framed or as altered by special resolu- 
 tion as (inter alia) to convert its paid-up shares into stock. 
 
 The articles generally empower a company to convert any of its paid-up 
 shares into stock. Sometimes the sanction of the company in general meeting 
 or by special or extraordinary resolution is required, but where this is not the 
 case the directors can generally exercise the power under such a clause as lit 
 of Form 117. 
 
 As to notice of conversion to be given to Registrar of Joint- Stock Companies, 
 see infra. 
 
 Form 155. That the whole of the preference shares in the capital of the co be 
 T^Tj^'^; converted into stock, to be called preference stock. 
 
 Form 156. 
 
 Consolidation 
 of shares. 
 
 1 . That the shares in the capital of the co be consolidated in such 
 manner that every five of the existing shares shall constitute one r>/. 
 share, upon which the sum of oZ. shall be credited as having been pd up. 
 
 •J. That the existing certificates of shares be called in by the directors 
 and cancelled, and that new certificates be issued, subject to the provi- 
 sions contd in clauses of the articles of association. 
 
 Section 12 of the Act of 18(32 permits any company limited by shares so far 
 to modify the conditions contained in its memorandum of association, if 
 authorised to do so l)y its regulations as originally framed, or as altered by 
 special resolvition in manner hereinafter mentioned, as to {inter alia) consoli- 
 date and divide its capital into shares of larger amount than its existing shares. 
 It is usual to insert the necessary authority in the ai'ticles, (see supra. Form 
 117,) although it is but seldom exercised. Even though not inserted, a single 
 special resolution is sufficient. 
 
 Form 157. 
 
 Subili 
 
 That each of the existing 10/. shares be di\ided into two 5/. shares, 
 upon each of which the sum of 41. shall be credited as pd up. 
 
 Sections 21 and 22 of the Act of 18G7 provide as follows : — 
 
 Any company limited by shares, may by special resolution, so far modify the 
 conditions contained in its memorandum of association, if authorised so to do 
 by its I'egulations as originally framed, or as altered by special resolution, as, 
 by subdivision of its existing shares or any of them, to divide its cajntal, or any 
 part thereof, into shares of smaller amount than is fixed by its memorandum of 
 association. 
 
 Provided that in the subdivision of the existing shares the proportion between 
 the amount which is paid and the amount (if any,) which is unpaid on each 
 share of reduced amount .shall be the same as it was in the case of the existing 
 share or shares from which the share of reduced amount is derived. 
 
 Section 22 provides that : The statement of the number and amount of the 
 shares into which the capital of the company is divided, contained in every 
 copy of the memorandum of association issued after the passing of any such 
 special resolution, shall be in accordance with such resohition ; and any com- 
 pany which makes default in complying with the jirovisions of this section 
 shall incur a jjenalty not exceeding IL for each copy in respect of which 
 such default is made, and every director and manager of the company who
 
 FORMS. 
 
 knowingly or wilfully authorises or permits such default shall incur the like 
 penalty. 
 
 Before this enactment it was illegal to subdivide shares. Holmes' case, 2 Ch. 
 714.; Fielding and Remington s case. Ibid. See also Sewell's case, 3 Ch. 131. 
 
 For clause to be inserted in articles giving the requisite power, see supra, 
 p. 131. 
 
 The power is to be exercised by special resolution ; hence if the articles do 
 not contain the necessary authority, two special resolutions are necessary, as in 
 the case of a reduction of capital. 
 
 Notice of a special resolution subdividing the shares must be given to the 
 Kegistrar of Joint-Stock Companies. See infra, p. 21G. 
 
 199 
 Form 157. 
 
 That each of the existing 50/. shares l)e divided into five fully pd up Form 158. 
 10/. shares. 
 
 That each of the existing shares of the co bo divided into two shares Form 159. 
 of 5/. each, one of which shall he called a preference share, and the other 
 an ordinary share ; and that the holders of the sd ])reference shares 
 shall be entld to be pd out of the profits of each year a ju-eferential 
 dividend at the rate of '> p. c. for such year, aud that the surplus profits 
 of each year shall be applied in payment of dividends on the sd ordinary 
 shares. 
 
 The above resolutions would not seem to offend against the principles on 
 which Hutton v. Scarborough Cliff Hotel Co. was decided. See supra, p. 195. It 
 would not seem to be an alteration of the constitution of the company, or a 
 fraud on the minority, or otherwise ultra vires the company. However, the 
 point remains to be decided. The Anglo-American Telegraphic Company, 
 Limited, passed sjjecial resokitions, in 1876, for the division of its capital 
 (stock) into preferred and ordinary stock ; but the division was not compiilsory : 
 the resolution merely authorised the dii-ectors to receive the surrender of his 
 stock from any member willing to surrender, and to issue to him jjreferred and 
 ordinary stock in equal moieties to same nominal amount. See supra, j). 131, 
 for express power. 
 
 That the ca])ital of the co be reduced from 100,000/., divided into Form 160. 
 10,000 shares of 10/. each, to 50,000/., divided into 10,000 shares of Reduction of 
 71. 10s. each. liability. 
 
 In this case the liability is reduced by 21. 10s. per share. 
 infra, as to reduction of capital. 
 
 See " Petitions," 
 
 That the capital of the co be reduced from 50,000/., divided into Form 161. 
 5,000 shares of 10/. each, to 30,0()0/., divided into 5,000 shares of 3/. Return of ' 
 each, and that such reduction be effected by returning to the holders of capital, 
 the 4,200 shares that have been issued pd up capital to the extent of 2/. 
 per share, and by reducing the nominal amount of all the shares fi'om 
 5/. to 3/. 
 
 That in respect of each share in the co's capital, upon which the sum Form 162. 
 of 4/. 105. has been pd up, capital be pd off to the extent of 1/. upon the lieturn liable 
 
 to recall.
 
 200 EESOLUTIONS. 
 
 Form 162. footiiif;; that tlie amount returned or any ])t thereof, may he called up 
 "^ — j^g.^j,j_ Kortlimoor Co., confirmed, Dth Feh., 188P), Kay, J. For 
 similar order, see CoJdIiurst Co., Hall, Y.-C, Jan. 1SS2. 
 
 Some comijanies have acted on the notion that capital can be paid off as 
 above without the sanction of the Court, but Flitcroffs case, 21 C. Div. 519, 
 explodes this notion. "Looking to the Act (10 i 11 Vict. c. 20 ; i.e., the Com- 
 panies Act, 1S77), it clearly is against the intention of the Legislature that any 
 portion of the capital should be retvirned to the shareholders without the statu- 
 tory conditions being complied with." Per Jessel, M. E., ibid., p. 533. 
 
 In the two cases above referred to, orders were made sanctioning a return 
 upon such a footing, the Court being of opinion that its sanction was requisite. 
 
 The V.-C. of the Lancaster Palatine Court takes the same view, as ajjpears 
 from the following and many other orders : — 
 
 *' That, in respect of each of the shares in the capital of the company upon, 
 which the sum of 3L 10s. or more has been paid-up, capital be paid off or. 
 
 returned to the extent of 21. per share on shares, Sec, so as to reduce the 
 
 capital paid up on all such shares to the sum of 3/. jjer share, upon the footing 
 that the amount paid off or returned on each share, or any part of it, may be 
 called up again in the same manner as if it had never been paid." Re West- 
 wood Spinning Co., confirmed by order of Lancaster Palatine Court, 3 Aug. 1883. 
 
 Form 163. That the capital of the co be reduced from .")()( i,0( id/., divided into 
 Cancellin"- lost 500,000 shares of 1/. each to 125,(K)0/. divided into 500,000 shares of bs. 
 capital. each, and that such reduction be effected by cancellinf^ capital which 
 
 has been lost, or is unrepresented by available assets, to the extent of 
 15s. per share upon each of the 203,727 shares which haxe been issued, 
 and are now outstanding, and by reducing the nominal amount of all 
 the shares in the co's capital from 1/. to o.s. per share. 
 
 In cancelling capital which has been " lost or is unrepresented by available 
 assets," it is usual to use those woi'ds in the resolution, but they may be 
 omitted, if desired, and the words " paid-ui) capital " can be substituted. 
 
 Form 164. That the ca])ital of the co be reduced from 400,000/., di\ided into 
 Confirming 4,000 sliares of 100/. each, of which 1,00(1 are preference shares and 
 past retuins, 2,000 are ordinary shares, to 200,000/., divided into 2,r)0o ordinary 
 shares of 100/. each, and that such reduction lie effected ]»y cancelling 
 so many of the sd preference shares as have not been taken or agreed to 
 be taken Ijy any ])erson, and by paying off as capital in excess of the 
 wants t»f the co the capital pd up and not yet repaid, on so many of the 
 sd preference shares as have been taken, aiul by confirming, and the co 
 does hby confirm the re})aymt of the capital on so many of the sd pre- 
 ference shares as haAc already been pd oflF, and that the preference shares 
 upon which the capital pd uji has been, or shall be, repaid as afsd lie 
 cancelled. Poiic & Pearson, Lhntd, confirmed 24th Dec, 1H81, by the 
 HighCt. 
 
 Where capital has been improperly x-eturned, it is desirable to get the sanc- 
 tion of the Court as above, so as to get rid of the liability on the part of the 
 <liroctors for the breach of trust.
 
 FORMS. 201 
 
 That the capital ho reduced from, &c., to, &c., hy caucelhng 10,00(> of Form 165. 
 the existin<i: preference shares, which liave nut been taken or agreed to Cancellation of 
 be taken by any person. unissued 
 
 shares. 
 Under s. 5 of the Companies Act, 1877, a special resolution as above operates 
 ■without the sanction of the Court. And where the regulations give the requi- 
 site power (e.g., by resolution of a general meeting), a special resolution is not 
 requisite. 
 
 That the capital be reduced, &c., by cancelling- the shares numbered Form 166. 
 which have been surrendered to the co. Caiu'ellatiou i>i 
 
 In such a case the sanction of the Court must be obtained, but if the shares 
 are fully jiaid up, and nothing has been paid for the surrender, the consent of 
 creditors will not be requisite. See s. 1 of the Companies Act, 1877. See 
 Llynvi Co., 2G W. R. 55 ; 37 L. T. 373. 
 
 That the 205 fully pd-up shares already pchased by the directors out Form 166a. 
 
 of the reserve fund be cancelled, and that the capital of the co be reduced cancellation of 
 
 by the sum of 2,i'>i)i)L being the nominal amount of such shares, ac- purchased 
 
 T 1 , „ , shares, 
 
 cordingly be conhrmed. 
 
 Moule's Patent Co., confirmed 4 May, 1883. 
 
 That out of the accumulated profits of the co there be returned to Form 167. 
 each member a sum e(iual to K) it. c. on the capital pd up on the shares p.^^.jj,„ ^^- 
 held l)y him in reduction of such capital, and to the intent that the un- capital out 
 paid capital may be increased by a similar amount. ^ ^'" 
 
 S. 3 of the Companies Act, 1880, provides that — 
 
 " When any company has accumulated a sum of undivided profits which with 
 the consent of the shareholders may be distributed among the shareholders in 
 the form of a dividend or bonus, it shall be lawful for the company by special 
 resolution to return the same, or any part thereof, to the shareholders, in 
 reduction of the paid-up capital of the company, the unpaid capital being 
 thereby increased by a similar amount. The powers vested in the directors of 
 making calls upon the shareholders in respect of moneys unpaid upon their 
 shares shall extend to the amount of the unpaid capital as augmented by such 
 reduction." 
 
 S. 5 of the Act empowers any shareholder, within one month after the 2)ass- 
 ing of the resolution, to require the company to retain moneys payable to him 
 under any such resolution, and to invest and pay him the interest. S. G re- 
 quires the amount returned to be specified in the annual returns. See Buck- 
 ley, 529. 
 
 Chaxge of ISTame. 
 That the name of the co be changed to the Co, Limtd. Form 168. 
 
 As to change of name, see s. 13 of the Act of 1802. The proper course Change of 
 is to pass a special resolution as above and then apply to the Board of Trade name. 
 for liberty to make the change. LiVjerty is readily granted. The change is 
 not complete until the new certificate of incorporation for which the section 
 provides is issued. Shackle/ord, Ford cf Co. v. Dangerfield, L. E. 3 C. P. 407. 
 
 That the directors be and they are hby authorised to create and issue Form 169. 
 debentures providing for the paynit of principnl sums not exceeding Resolution as
 
 202 
 
 RESOLUTIONS. 
 
 to issue 
 debentures 
 
 Form 169. 50,00(1/. with interest at tlic rate of 5 p. c. p. a., such dehcn- 
 tures to be in such form and to l)e secured in such manner, and to 
 be issued to such persons and on such terms as the directors think 
 expedient. 
 
 When debentures are to be issiied, the sanction of a general meeting may by 
 the reguhitions be necessary ; and even when it is not, directors sometimes 
 think it expedient to ask for the sanction. 
 
 Form 170. 
 
 Creation of 
 
 debenture 
 
 stock. 
 
 Form 171. 
 
 Debenture 
 
 .stock. 
 
 Form 172. 
 
 That the directors be and they are hby authorised to create and 
 issue a debenture stock of the nominal amount of 100,000?., such stock 
 to 1)0 called Perpetual 5 p. c. Debenture Stock, and to carry interest 
 at the rate of 5 p. c. p. a., and to be represented by debentures, certi- 
 ficates, or otherwise, as may seem expedient, and to be payable or 
 redeemable in such events, and to be secured in such manner, and 
 g-enerally to be issued on such tei'ms as the directors think fit. 
 
 It should be seen that there is nothing in the regulations inconsistent with 
 the issue of debenture stock. If there is, the requisite alterations should be 
 made. See further, infra, " Debentures." 
 
 That the directors be and they are hby authorised from time to 
 time to create and issue mtge debenture stock of the co to an amount 
 not exceeding one-third of the pd capital of the co f(»r the time being, 
 upon the footing that the aggregate amount of the sd stock for the time 
 outstanding and the interest thereon shall rank j/arl passu as a first 
 charge on the undertaking and revenue of the co, the stock to be issued 
 at such times in such amounts and on such terms and conditions as the 
 directors shall from time to time determine for the ppose of redeeming 
 by exchange or other^^'ise the outstanding debentures of the co, and any 
 other ])poses to Avhich capital of the co shall be lawfully applical)le. 
 
 That the directors be and they are hby authoi'ised to make such 
 provisions as they think fit for efibctuating the sd charge and for 
 the registration and transfer of the sd stock and for the delivery of cer- 
 tificates thereof and for the issue of stock warrants to bearer, transfer- 
 able by delivery and of interest coupons attached to such Avarrants or 
 otherwise, and for the conversion of warrants to bearer into registered 
 stock, and of registered stock into warrants to bearer, and generally as 
 to the form and incidents of all documts relating to the stock. 
 
 That the directors be and they are hby authorised fi'om time to time 
 to pchase in the market, and hold and deal with any amount of such 
 stock for the ppose of any reserve fund or investmt of the co, and with 
 the sanction of a general meeting to apply other monies of the co to the 
 ])cliase in the market of any such stock for cancellation, and with the 
 like sanction afterwards to re-issue stock in lieu of all or any of the 
 stock so caricelled, pro\'ided that the amount of the stock for the time 
 being outstanding shall never exceed tlie prescribed limit. 
 
 Resolution declaring the ccniditions on which share warrants will be 
 issued.
 
 FOEMS. 203 
 
 The following are conditions suitable to be made by the directors binder Clause Form 172. 
 
 32, supra, j). 128. If the words within brackets in that clause are not struck out " ■• 
 
 the conditions must be submitted to the company in j^eneral meeting for its 
 approval. 
 
 That the following conditions as to the issue of share warrants l^e Upon whose 
 made jmrsnant to Clause of the articles of association of the co. Avan-ant to 
 
 1. Xo share warrant shall be issued except upon a request in writing be issued. 
 l)y the person for the time being upon the register of members as the 
 liolder of the share or stock in respect of which the share warrant is to 
 
 be issued. 
 
 'For form of share warrant, see infra, " Certificates." » 
 
 There can be no doubt that if the company issue a share warrant to a person 
 who is not entitled, it will be estopjied from denying the right of any jixirchaser 
 from him. See further, introductory notes to "Certificates." The iitmost care 
 ought therefore to be used. Sometimes these clauses are embodied in the 
 articles of association. 
 
 2. The request shall be in such form, and authenticated by .sucli Regulations as 
 statutory declon or othei" evidence as to the identity of the person ^" ''si^is^t- 
 making the same, and of his right or title to the share or stock, as the 
 directors shall from time to time require, and shall l)e lodged at the 
 
 office of the co. 
 
 3. Before the issue of a share wai'rant the certificate (of any) then Certificates to 
 outstanding in respect of the shares or stock intended to be included in ^f j^""^"^" 
 
 it shall be delivered up to the directors unless they dispense with this 
 condition. 
 
 If the certificate is left outstanding it will be more or less a risk of the 
 company, and the directors may reasonably require an indemnity. 
 
 4. Any person applying to have a share waiTant issued shall at the Stamp duty, 
 time of applicon pay to the directors the stamp duty payable in respect 
 thereof, and also such fee, not exceeding 1.?., for each share Avarrant as 
 
 the directors shall fi'om time to time fix. 
 
 By virtue of the Companies Act, 18G7, s. 33, "There shall be charged on every 
 share warrant a stamp duty of an amount equal to three times the amount of 
 the ad valorem stamp duty which would be chargeable on a deed transferring 
 the share or shares of stock specified in the warrant, if the consideration for 
 the transfer were the nominal value of such share or shares or stock." 
 
 By 33 & 31 Vict. c. 97, s. 127 : — " If a share warrant is issued without being 
 duly stamjied, the company issuing the same, and also every person who at the 
 time when it is issued is the managing director, or secretary, or other principal 
 officer of the company, shall forfeit the sum of oOl. 
 
 5. Share warrants shall be issued under the seal and be signed by one Execution, 
 (lirector and countersigned liy the secretary or some other officer in the 
 
 l^lace of the secretary appointed by the board for that ppose. 
 
 C. Each share warrant shall contain such mimber of shares or amount Number, 
 of stock and lie in such laniiuage and form as the directors shall think
 
 204 
 
 KESOLUTTONS. 
 
 Form 172. 
 
 Coupons. 
 
 Number of 
 coupons. 
 
 Payment of 
 dividends. 
 
 Bearer of 
 coupon alone 
 recii>rnised. 
 
 As to worn 
 or defaced 
 warrants. 
 
 As to lost <i 
 
 destroyed 
 
 ■vvaiTant. 
 
 Fee on issue 
 of new- 
 warrant. 
 
 On wli.'it fiiii- 
 ditions holder 
 of warrant 
 may mAc 
 
 fit. The miiiibor originally attached to cacli share shall he stated in the 
 share warrant. 
 
 7. Coupons ])ayahle to hearer of such nuuiljcr as the directors shall 
 think fit, shall be attached to share warrants providing for the paymt 
 of the dividends or interest upon and in respect of the shares or stock 
 included therein, and the directors shall provide as they shall from time 
 to time think fit for the issue of fresh coupons to the bearers for the time 
 being- of share warrants when the coupons attached thereto shall be 
 exhausted. 
 
 <S. p]ach couiHin shall be distinguished by the number of the share 
 warrant to which it l)elongs, and by a number showing the i)lace it 
 holds in the series of coupons belonging to the warrant. The coupons 
 shall not l)e expressed to be payable at any parlar period, nor shall they 
 contain any statemt as to the amount which shall be payal)le. 
 
 '.). Upon any dividend or interest being declared to be payable upon 
 the shares or stock specified in any share warrant the directors shall pub- 
 lish an advcrtisemt in one daily newspaper published in London, and 
 in sucii other newspapers, if any, as they shall think fit, stating the 
 amount per share or p. c. payable, the date of paymt, and the 
 serial number of the coupon to be presented, and thereu])on any person 
 presenting and delivering up a coupon of that serial number at the 
 ])lace or one of the places stated in the coupon, or in the sd advertisemt, 
 shall be entitled to receive at the expiration of such number of days (not 
 exceeding five) after so delivering it up as the directors shall from time 
 to time direct, the dividend or interest payal)le on the shares or stock 
 specified in the share warrant to which the sd coupon shall l)elongv 
 according to the notice which shall have l)een so given by advcrtisemt. 
 
 10. The CO shall be entled to recognise an absolute right in the 
 bearer for the time being of any coupon so advertised as afsd for paymt 
 to such amount of dividend or interest on the share warrant whereto the 
 sd coupon shall belong as shall have been as afsd declared payable upon 
 presentation and delivery of the coupon, and the deli\'ery of such coupon 
 shall be a good discharge to the co accordingly. 
 
 1 1 . If any share Avarrant or coupon be worn out or defaced, the 
 directors will, up(»n the surrender thereof for cancellation, issue a new 
 one in its stead, 
 
 1 2. If any share warrant or coupon be lost or destroyed, the directors 
 will, ui)on the loss or destruction being established to their satisfaction, 
 and uj)on such indennuty being given to the co as they shall think 
 ade(|uate, issue another share warrant or coupon in lieu thereof. 
 
 ]:•). In every case provided for by conditions 11 and 12 a fee of 2.s. Gd., 
 exclusive of all expenses attending the investigation of evidence of loss 
 or destruction, and of an indemnity to the co, shall be pd to the co by 
 the ])erson availing himself of those conditions. 
 
 14. No person shall as bearer of a share warrant be entled to attend, 
 or vote, or exercise in resjjcct thereof any of the rights of a member, at 
 any general meeting of the co, or sign any requisition for or aid in call-
 
 FOEMS. 205 
 
 ing auy general meeting, unless three days at least before the day Form 172. 
 appointed for the meeting, in the first case, and unless before the requi- 
 sition is left at the office, in the second case, he shall have deposited the 
 share warrant at the office, or such other place as the directors a])puint, 
 together with a statemt in writing of his name and address, and unless 
 the share warrant shall remain so deposited until after th(; general meet- 
 ing, or any adjournmt thereof shall have been held. The names of more 
 than one as joint holders of a share warrant shall not be received. 
 
 This and the following clause are found to work well. They prevent perso- 
 nation, and are convenient both to the holders of share wai'rants and to the 
 company. The certificate requires no stamp. 
 
 l."». There shall be delivered to the person so depositing a share war- Certificate of 
 rant a certificate stating his name and address, and the number of '^ ^i'*'*^''- 
 shares or the amount of stock, represented by the share warrant so 
 deposited by him, and such certificate shall entitle him to attend and 
 vote at a general meeting in the same way as if he were a registered 
 member of the co in respect of the shares or stock specified in the 
 sd certificate. Upon delivering up of the sd certificate to the co 
 the share warrant in resi)ect whereof it shall have been given, shall be 
 returned. 
 
 The certificate may be as follows : — 
 
 The Co, Limtd. 
 
 Xo. . 
 
 This is to certify that A. B., of , has, in accordance with the 
 
 regulations of the co, dcjiosited the undermentioned share Avarrants, in 
 respect of which he is entled to attend the general meeting of the co, to 
 l)e held at . , on the day of . 
 
 Dated, &c. 
 
 Particulars of share wai'rants deposited. 
 
 -, Secretary. 
 
 10. Xo person as liearer of any warrant shall V)e entled to exercise When warrant 
 nny of the rights of a member (save as hinbefore expressly provided in t° ^^ produced, 
 respect of general meetings), without producing such warrant and stating 
 Ids name and address, and (if and when the directors so requii'c) per- 
 mitting an indorsemt to be made thereon of the fact, date, ppose, and 
 consequence of its production. 
 
 The above clause is occasionally used. 
 
 17. If the bearer of a share warrant shall surrender it to be cancelled, Surrender of 
 iind shall therewith lodge at the office a declaration in writing, signed 
 l)y him, in such form, and authenticated in such manner as the directors 
 require, requesting to be registered as a member in respect of the shares 
 r)V stock specified in the sd share wairant, and stating in such declara- 
 tion his name, address, and occupation, he shall be entled to have his
 
 206 
 
 EESOLUTIONS. 
 
 Form 172. name entered as a member in the register of members of the co in 
 res]:)ect of the shares or stock specified in the share warrant so surren- 
 dered. 
 
 Section 29 of the Act of 1867 provides that " The bearer of a share warrant 
 shall, subject to the regulations of the company, be entitled on surrendering 
 such warrant for cancellation, to have his name entered as a member in the 
 register of members, — (hence it is necessary to provide for the surrendei",) — 
 and the company shall be responsible for any loss incurred by any jierson by 
 reason of the company entering in its register of members the name of any 
 bearer of a share warrant in resjject of the shares or stock specified therein 
 without the share warrants being surrendered and cancelled." 
 
 Cleaning of 18. In the above conditions share "warrant means a warrant in respect 
 
 share wan ant. ^^|> ^ (^\y^Y^, or shares, or of stock of the CO, issued pursuant to the Com- 
 panies Act, 1807, and the articles of association of the co. 
 
 Form 173. 
 
 Registration 
 of existing 
 company. 
 
 Form 174. 
 
 Application for 
 registration 
 with limited 
 liability. 
 
 That the co be registered under the Companies Act, 18G2 [as a co 
 
 limtd l)y shares, and that the co's name be changed to The Co, 
 
 Limtd.] 
 
 As to the registration of existing companies, see Part VII. of the Companies 
 Act, 1862. 
 
 The words in brackets should be omitted where the company is going to 
 register as an unlimited company, and even where it is to x-egister as a limited 
 company they would seem unnecessary, though commonly used. 
 
 Tlie following are the ordinary forms of application : — 
 
 The Companies Act, 1862. 
 
 Applicon for a certificate of incorporation as a limtd co by The Co. 
 
 The Co constituted by [deed of settlemt], dated the , desires to 
 
 register itself as a co limtd by shares under the Companies Act, 1862, by the 
 
 name of The Co, Limtd, and for that ppose presents the undermentd 
 
 documts for registration under the sd Act. Dated, &c. 
 
 Doeumts presented for registration with the foregoing applicon : — 
 
 1. Copy of the [deed of settlemt] constituting the co. 
 
 2. List of the members of the co made up to the day of . 
 
 ',]. Statemt showing the nominal capital (if any) of the co, its division into 
 shares, the number of shares taken, and the amount jxl on each share ; 
 also the name of the co and the situation of its registered office. 
 •4. Copy resolution of the co assenting to its registration as a limtd co, and 
 adding the word " Limtd " to its name. 
 
 o. Declon by of the co verifying the parlars set forth in the documts 
 
 above mentd. 
 Where the co is already registered, e.g. under 7 & 8 Vict. c. 110, the words 
 " constituted by deed of settlemt " in the above form will be altered to " com- 
 pletely registered imder the Act 7 & 8 Vict. c. 110 ; " [or, as the case may be] 
 and item 1 of the documt will be omitted. 
 
 The applicon is to be signed by a director, secretcxry, or other authorised 
 officer of the co. 
 
 The Companies Act, 1862. 
 
 Form 175 Applicon for certificate of incorporation by the . 
 
 ■ The Co constituted by , dated [or, completely registered, Ac] 
 
 Apphration for desires to register itself under the Companies Act, 1862, and for that jipose 
 regis r.ttion as pj-^ggj^^^g ^j^g undermentd documts for registration under the sd Act. Dated, (to.
 
 FORMS. 
 
 207 
 
 Documts presented for registration with the foregoing applioon : — Form 175. 
 
 1. Copy of the constituting the co. ' ; ^ 
 
 2. List of members of tlie co made up to the day of . 
 
 . '■ '' company. 
 
 '3. Statemt of the registered office of the co. 
 
 4. Copy resohxtion of the co assenting to its registration. 
 
 5. Declon by — — - of the co verifying the parhxrs set forth in the documts 
 
 above mentd. 
 Where the co is ah-eady registered, items 1 & 1 will be omitted. 
 
 The Companies Act, 1862. 
 Limtd Co. 
 
 Statemt of the nominal caintal of The Co, its division into shares, the Form 176. 
 
 number of shares taken, and amount fixed thereon as at the day of . 
 
 Also the name and registered office of the co. 
 
 Amount of nominal capital. 
 
 Number of shares into which it is divided and amount of each share. 
 
 Number of shares taken up to the day of . 
 
 Amount i^aid on each share. 
 
 Name of company. 
 
 Registered office. 
 
 Dated . 
 
 [The above is to be registered with the application for incorporation as a 
 limited company. See s. 183. It should be signed in the same manner as 
 Form 17-i.] 
 
 We of and of , being two of the [directors of the Co], Form 177. 
 
 Do solemnly and sincerely declare that the parlars set forth in the several docu- 
 
 ments accompanying this declon, and marked respively with the letters — — are , ^.^ ^^^ 
 true ; and we make this solemn declon conscientiously believing the same to i-gfristration 
 be true, and by virtue of the j^rovisions of an Act of Parliament made and 
 passed in the sixth year of the reign of his late Majesty, intituled "An Act to 
 repeal an Act of the present session of Parliament," intituled " An Act for the 
 more effectual abolition of oaths and affirmations taken and made in various 
 departments of the State, and to substitute declons in lieu thereof, and for the 
 more entire sup2>ression of voluntary and extra-judicial oaths and affts, and to 
 make other provision for the abolition of unnecessai-y oaths." 
 
 Declared, &c. 
 
 [As to the above form, see s. 180 of the Act. The declaration should be made 
 by two of the directors or other principal officers of the company.] 
 
 As to rcg-istration midcr the Companies Act, 1871', 42 & 40 Yict. 
 c. 7(5. 
 
 Under this Act any companj' registered before or after the passing of the 
 Act as an unlimited company may register under the Companies Acts, 18G2 to 
 1879, as a limited company, s. 4. The chief object of this enactment was to 
 enable banking companies already registered as unlimited to re-register as 
 limited companies, and most of these companies have already availed themselves 
 of the power. 
 
 On the registration in pursuance of the Act of 1879, of a comimny which has 
 already been registered, the registrar is to close the former registration, and 
 may [and usually does] dispense with the delivery of copies of any documents 
 with copies of which he was furnished on the original registration ; but save as 
 aforesaid the registration is to take place in the same manner and have the
 
 208 
 
 EESOLUTIONS. 
 
 Form 177. same effect as if it were the first registration of the company : s. 9. Accord- 
 ingly the above forms can with slight modifications be adojited. 
 
 A simple resolution for registration under the Act of 1879, will follow the 
 terms of Form 173, supra, p. 20G, substituting the words " Acts 18G2 to 1883," 
 for the words " Act of 18(32." 
 
 But usually the powers conferred by s. 5 of the Act of 1879 are exercised. 
 That section is as follows : — 
 
 " An unlimited company may by resolution passed by the members when 
 assenting to registration as a limited company under the Companies Acts, 1802 
 to 1879, and for the purpose of such registration or otherwise, increase the 
 nominal amount of its capital by increasing the nominal amount of each of its 
 shares. Provided always that no part of such increased capital shall be 
 capable of being called uji except in the event of and for the purposes of the 
 company being wound up. And in cases where no such increase of nominal capital 
 may be resolved upon, an unlimited comi)any may, by such resolution as afore- 
 said, provide that a portion of its uncalled ca^jital shall not be capable of being 
 called up, except in the event of and for the purposes of the company being 
 Avound uj). A limited company may by special resolution declare that any por- 
 tion of its capital which has not been already called up shall not be capable of 
 being called up, except in the event of and for the purposes of the company 
 being wound up ; and thereupon such portion of capital shall not be capable of 
 being called up, except in the event of and for the purposes of the company 
 being wound up." 
 
 The following is an example of a resolution for registration and increase of 
 Ciipital, pursuant to s. 5 : — 
 
 rorm 178. Tliat this co, uow registered under the Companies Act, 1802, as an 
 unlimtd co, be registered under the Companies Acts, 18G2 to 1871), as a 
 CO limtd by shares : And that for the ppose of such registration the 
 nominal amount of tlie capital be increased from 2,000,000/. to 
 3,000,000/., by increasing the nominal amount of each share from i'tOl. 
 to 75/. : And that no part of such increased capital shall be capable of 
 being called up except in the event of and for the pposes of the co being 
 
 wound up, and that the name of the co be changed to the Co, 
 
 Limtd. 
 
 For resolution where capital is not increased, see infra. Form 173. 
 
 It is conceived that s. 188 of the Companies Act, 18(12, applies where a bank- 
 ing company re-registers under the Act of 1879, and this view has been generally 
 acted on. The following are copies of the circular letters issued by the London 
 and County Bank previously to registration. 
 
 Sir, — I am desired by the directors of the company to give you notice that .at 
 an extraordinary meeting of the shareholders of the company held on the 20tli 
 day of February, 1880, the following resolution was passed : — " That the London 
 snid County Banking Company be registered as a limited company under the 
 Oomj^anies Acts, 1802 to 1879, that the name of the company l^e changed by 
 adding thereto the word Limited, and that of the capital uncalled upon the 10(),0(X) 
 shares of HOI. each, constituting the capital of the company, the sum of 10?. per 
 share shall not be capable of being called up except in the event of and for the 
 purposes of the comjjany being wound up. 
 
 And that it is intended to register the company as a limited company accord- 
 ingly. This notice is given in compliance with s. 188 of the Companies Act, 
 1802. 
 
 I .am. Sir, your obedient servant. 
 
 To , Gcner.al Manager.
 
 FOEMS. 2li9 
 
 The above was accompanied by a letter as follows : — Form 178. 
 
 Sir, — I am requested to forward to you the notice on the other side, by 
 which you will observe that it is intended to register this Bank as a limited 
 company under the Act of the last session of Parliament. This course has 
 been adopted by this Bank in common with most of the other unlimited 
 London Banks, and in order to give the most ample security to customers it 
 has been determined to increase the subscribed capital of the Bank, and issue 
 additional shares. 
 
 The present subscribed capital of .3,750,OOOL will be increased to S,000,OOOZ., 
 whilst the paid-up capital and Eeserve Fund will be increased from 2,250,000?. 
 to 3,000,000L The result of the arrangements Avhen completed will be that 
 in addition to the whole of the property and assets of the Bank the cus- 
 tomers will be secured by the liability of the shareholders to the extent of 
 5,000,000?. A copy of the last balance-sheet is annexed, and I am requested 
 to inform you that the business of the Bank will be conducted in all respects 
 as heretofore. 
 
 I am, &c.,
 
 NOTICES. 
 
 mTRODUCTORY NOTES. 
 
 The ref^ulatious of a company generally provide that notice shall be 
 given to the members of all general meetings, and also upon or in' 
 relation to divers other matters. The mode of ser\-ing or giving such 
 notices is duly provided for by the articles {supra, p. 103), or by Table 
 A, when it applies {snpra, p. 111). 
 
 By section G4 of the Act, " any summons, notice, order, or proceeding- 
 requiring authentication by the company, may be signed by any director, 
 secretary, or other authorised officer of the company, and need not bo 
 under the common seal of the company, and the same may be in writing 
 or in print, or partly in writing and partly in print." The foll(jwing arc 
 some of the forms of notices in general use : — 
 
 The Co, Limtd. 
 
 Xo. — . 
 
 Form 179. ^^^> — I 9,m directed to inform you that, in compliance with your 
 
 ;.^ T ', applicon, dated, &c., shares of 10/. each in The Co, Limtd, 
 
 Notice of - 
 
 allotment of have been allotted to you. 
 
 ^^^'"■es- I am, &c., 
 
 , Secretary. 
 
 To • , &c. 
 
 This requires a penny stamp. See Stamp Act, 1870. But an iinstamped 
 letter may be a notice siifEcient to bind the allottee. Whiteley Partners, 42 
 L. T. 11, 28 W. R. 2-tl. 
 
 For the ordinary form of application, see svj^ira, p. 183. 
 
 Sometimes before allotment the directors find that some material statement 
 in the prospectus is not correct. The discovery ought to be communicated to 
 applicants. Scottish Petroleum, 23 C. Div. •1-13. 
 
 And it is sometimes desirable so to frame the notice of allotment that it will 
 oblige the allottee to signify his assent to the allotment notwithst.anding the 
 discovery. This can readily be done, e.g., by adding a statement to the effect 
 that "the allotment is conditional on your signing and returning the enclosed 
 form within seven days." Unless the applicant complies with the condition he 
 is not bound. Leeds Banking Co., 2 Dr. & Sm. 115 ; 3 D. J. & S. 30. AddinelVs 
 case, 1 Eq. 225 ; Beck's case, 9 Ch. 392. 
 
 Sometimes a like discovery is not made until after allotment. In such case 
 it may be expedient to send out a circular fairly disclosing the facts incidentally 
 or otherwise, and asking the recipients to sign and return a proxy or some 
 other document which if signed will operate as a waiver of this right to rescind.
 
 FORMS. 211 
 
 Where an allottee who has a right to rescind a contract for misrepresentation Form 179. 
 
 acts as a member after knowledge of the facts, he loses his right. Ashley's case, " ' 
 
 9 Eq. 2G3 ; Kent v. Freehold Land Co., 4 Eq. 588 ; Whitehouse's case, 3 Eq. 79t ; 
 Scoley V. Central Co., 9 Eq. 2GG ; Shapley v. Louth Ry. Co., 2 C. Div. 084 ; 
 Pollock, 507. 
 
 It is very desirable to obtain some acknowledgment of the circular on the 
 part of the allottee, for otherwise he may swear he never received the circular, 
 and it has been held that the ordinary jirovisions in the articles as to the service 
 of notice do not ai^jily to such a circular. In re London 4' Staffordshire, 24 C. D. 
 149. If by admission of an allottee or otherwise the i-eceipt of the circular is 
 proved, he will be presumed to have read the contents. Scholey v. Central Ry. 
 9 Eq. 26G. 
 
 It will be borne in mind that a person is a member " who has agreed to 
 become a member." Section 23 of the Act of 18G2. Accordingly if a company 
 allots shares and sends notice of allotment, and the allottee accepts the same, 
 he will be bound just as much as if he had applied. 
 
 The Co, Limtd. 
 
 Xo/ — , Street, &c. 
 
 Sir, — I beg to give you notice that at a meeting of the directors of Form 180. 
 
 tliis CO held here on, &c., a call of -I. per share was made upon all ^ .. ^ ' ,. 
 
 the members, and that the same will Ite payable at the Bank, 
 
 Xo. — , Lombard Street, Loudon, E.C., or at the office of tlie co, ou the 
 
 day of next. 
 
 The amount payable by you in respect of such call on the shares 
 
 held by you is /. 
 
 I am, &c., 
 
 , Secretary. 
 
 To . 
 
 I beg to give you notice that at a meeting, &c., it was resolved : — Form 181. 
 
 " That a call of /. per share be made on all the members, payal)le ^^^^^jj^^.j, 
 
 on the of at ." The sum payable by you is /., and 
 
 I am directed to remind you that in accordance witli clause — of the 
 co's articles of as.sociation, if the amount is not pd on or before the day 
 appointed for the paymt thereof, you will l)e liable to pay interest for 
 the same at the rate of [10] p. c. p. a,, from the day appointed for the 
 paymt thereof to the time of the actual paymt. 
 
 The Co, Limtd. 
 
 Xo. — , Street, &c. 
 
 Sir, — In my letter of the • day of , I gave you notice that at Form 182. 
 
 a meeting, &C. Notice before 
 
 I am now instructed to inform you, that the directors require you on forfeiture for 
 
 or before the day of , to pay the sd sum of /., together ^f ^aii. 
 
 with interest thereon, at the rate of p. c. p. a. from the sd day 
 
 of , and that in the event of non-paymt of the sd call and interest, 
 
 p 2
 
 
 NOTICES. 
 
 Form 182. on or before the sd 
 
 day of 
 
 at the place afsd, the shares in 
 
 respect of which such call was made, will be liable to be forfeited. 
 
 I am, &c., 
 To , &c. , Secretary. 
 
 The 
 
 Co, Limtd, 
 
 Form 183. 
 
 Notice of 
 ordiiiiuy 
 genenil 
 meeting. 
 
 meeting of 
 
 Street, 
 
 o'clock 
 
 Notice is hby given that the fourth ordinary general 
 
 The Co, Limtd, will be held at the Hotel, • 
 
 London, E.G., on Monday, the day of , 1884, at • 
 
 in the afternoon [for the pposes following, namely, to receive and con- 
 sider the annual statemt of accounts and balance-sheet, and the reports 
 of the directors and auditors thereon, to elect directors and other officers 
 in the place of those retiring by rotation, to sanction the declon of a 
 dividend and] to transact the [other] ordinary business of the co. 
 
 The transfer books of the co will be closed from day the th 
 
 to day the th, both days inclusive. 
 
 Dated, &c. 
 
 No. — , — 
 
 Street, &c. 
 
 By order. 
 A. B., Secretary, 
 
 Form 184. 
 
 Xotice of ex- 
 traonlinary 
 general 
 nieetincr. 
 
 If the articles only require the objects of an extraordinary meeting to be 
 specified in notices calling general meetings, the words in brackets can be 
 omitted. 
 
 The Co, Limtd. 
 
 Notice is hby given, that an extraordinary general meeting of The 
 Co, Limtd, will be held at, &c., on, &c., at o'clock in the 
 
 Form 185. 
 
 Another form. 
 
 afternoon, when the subjoined resolution will be proposed. 
 
 Resolution. 
 
 That, &c. \_sct it ovt.'\ 
 
 No. — , Street, &c. By order. 
 
 [Office of Co]. A. B., Secretary. 
 
 The Co, Limtd. 
 
 Notice is hby given that an extraordinary meeting of the above-named 
 
 co will be held at, &c., on, c^-c, at 
 
 o'clock in the afternoon, for the 
 
 ppose of considering, and, if thought fit, passing a resolution [or, when 
 a resolution will be proposed] authorising the directors [^.<7., "to raise 
 the sum of 1. by the issue of mtge debentures or otherwise."] 
 
 Dated, &c. By order. 
 
 No. «&c. A. B., Secretary. 
 
 The 
 
 Co, Limtd. 
 
 Form 186. 
 
 Notice of ex- 
 traordinary 
 ^eneral meet- 
 
 Notice is hby given that an extraordinary general meeting of The 
 — ■ Co, Limtd, will be held at \_c.[i., " The Terminus Hotel, Cannon 
 
 Street, in the City of London," or " the registered office of the co, No." 
 Tng for passing &c.], ou day of , 1884, at o'clock in the afternoon, when 
 
 special resolu- 
 tion. 
 
 the subjoined resolution will be proposed.
 
 POEMS. 
 
 21: 
 
 Should the rcsohitiou Ix; passed by the required majority, it ^vill be Form 186. 
 submitted for confirmation as a special resolution to a second extra- 
 ordinary meeting which will l)e subsequently convened [or which in the 
 
 absence of further notice will be held on the day of at the 
 
 same time and place]. 
 
 Resolution. 
 That, &c. 
 
 [ffere set out the resolution.^ 
 
 Dated . By order of the Board. 
 
 No. — , Street, . A. B., Secretary. 
 
 Where it is intended to pass a special resolution, the notice of the first meet- 
 ing ought to inform members expressly or impliedly of the fact. But some 
 resolutions imijly the intention, e. g., a resolution purporting to alter the 
 articles. It has not been settled whether the exact terms of the proposed reso- 
 lution must be set out in this notice. Section 51 of the Act says, "of which 
 notice sj^ecifying the intention to propose such resolution has been duly given," 
 [supra, p. 190] but it is conceived that this will not be strictly construed, and 
 that provided fair notice of the subject-matter of the proposed resolution is 
 given it is suflicient. See Imperial Bank v. Bk. of Hind. 5 Eq. 91. And where 
 the notice is framed in general terms it would seem that an amendment might 
 properly be proposed, provided that the amended resolution falls within the 
 notice. See Imperial Hydropathic v. Hampson, 23 C. Div. p. 9. 
 
 But if a notice points exclvisively to a specific resolution, e. g., "to increase 
 the capital to lO.OOOL by the creation of 5,000 new shares of IL each," it would 
 seem that no modification or amendment of such resolution could be made at 
 the meeting. Where it is desired to leave room for amendment the words 
 " either with or without modification " should be inserted before the word 
 " passing," or the notice should be framed more generally. It would seem 
 that a resolution cannot be confirmed so as to become a special resolution, unless 
 the notice of the first meeting gave direct or indirect notice that it was in- 
 tended to proceed by special resolution. 
 
 As regards the use of the words in brackets at the end of the above notice, 
 there would not prim'h facie appear to be any objection to convening the two 
 meetings by the one notice, but of course if the first meeting is adjourned so 
 that there would not be fourteen clear days between the two meetings, a fresh 
 notice may be requisite. And occasionally the regulations provide that " not 
 less than seven days, and not more than twenty -one days notice shall be given"; 
 this may interfere with a simple notice. 
 
 The Co, Limtd. 
 
 Notice is hby given, that an extraordinary general meeting of The Form 187. 
 
 Co, Limtd, will be held at, &c., on the 10th February, 1884, when Zrr.~~~ T 
 
 ' . , . J} > JNoticeof meet- 
 
 the suljjoined resolution, which was passed at the extraordinary general ing to confirm 
 
 meeting of the co held on the th of January, 1884, will be submitted ^l""''^'^ '''''"'''* 
 
 for confirmation as a specuil resolution. 
 
 That, &c. 
 
 [Set out resolution as passed."] 
 
 Dated, &c. By order. 
 
 No. — , Street, &c. A. B., Secretary. 
 
 It seems clear that no modification of the resolution can be permitted at the
 
 :14 
 
 NOTICES. 
 
 Form 187. confirmatory meeting'. It must either be passed or rejected. There must be 
 an interval of fourteen clear days between the two meetings. See section 51, 
 supra, p. 190. 
 
 The 
 
 Co, Limtd. 
 
 Porm 188. Notice is hl)y o-iveii, that an extraordinary general meeting;- of The 
 
 Notice of onli- ^^^' Limtd, will bc held at, &c., on, &c., at o'clock in the 
 
 nary aud aftcruoon, whcii the .subjoined resolution, ■which was passed at the extra- 
 
 general meet^ ordinary meetinu- of the co, held on, &c., will be submitted for confirma- 
 ings to be liuld tiou as a Special resolution. 
 
 on same < ay. j^^^ notice is hby also given that at the same place, and on the same 
 day, at o'clock in the afternoon, or so soon afterwards as the extra- 
 ordinary general meeting shall be concluded, the fourth ordinary general 
 meeting of the co will be held for the ppose of [see supra, p. i(»4] trans- 
 acting the ordinary business of the co. 
 
 Dated, &c. By order. 
 
 No. — , — — Street, &c. A. B., Secretary. 
 
 Sometimes it is found convenient to convene an extraordinary meeting fox" 
 the same day as the ordinary meeting, but it must be borne in mind that a 
 separate proxy is reqviisite for each of two meetings though held the same day^, 
 supra, p. 140. 
 
 Whei-e two successive siJecial resolutions have to be passed it is not unusual 
 to pass them in three meetings, or to hold the two central meetings on the 
 same day, as follows. See Form 1S9, infra. It seems better to adopt the 
 course last mentioned, for it might be contended that a special resolution does. 
 not become effective until the close of the meeting. 
 
 Notice of ifoefimi. 
 The Co, Limtd. 
 
 Form 189. 
 
 Notice is hby given, that an extraordinary general meetiug, &c., when 
 the subjoined resolution will be proposed. 
 
 Should the sd resolution be passed by tlie required majority, it will 
 be submitted for confirmation as a special resolution to a second extra- 
 
 Notice of 
 
 extraordinary 
 .general meet- 
 ings for pass- 
 ing two special Ordinary meeting to be subsequently con\'ened. 
 
 I'e.-iohitions in 
 
 liiree nieetings, -n ■# . • 
 
 Resolimon. 
 
 That the articles of association of the co be altered by the insertion 
 therein immediately after Article 10 of the following Article, namely : — 
 1(1^/. The CO may from time to time reduce the capital. 
 
 Form 190. 
 
 Siibsc'inent 
 notice. 
 
 The 
 
 Co, Limtd. 
 
 Notice is hby given, that an extraordinary general meeting of The 
 
 Co, Limtd, will be held, &c,, when the resolution. That [«s ahove\ 
 
 which was passed at the extraordinary meeting of the co held on the 
 
 inst., will be submitted for confirmation as a special resolution. Should 
 such resolution l)e duly continued, the following resolution will 1)C i)ro- 
 poscd at the same meeting, and, if passed by the requisite majority, will
 
 FORMS. 
 
 215 
 
 be submitted for confirmation as a special resolution to a subsequent Form 190. 
 
 extraordinary <i-eueral meeting, which will be held on the day of 
 
 at the same time and place. 
 
 Resolution. 
 
 That the capital of the co be reduced fi'om 1, divided into 
 
 shares of 1. each, to 1, divided into ■ shares of /. each. 
 
 Dated, &c. ]jy order. 
 
 No. — , SzQ. A. B., Secretary. 
 
 If there are to be four meetings, the notice will provide for two 
 meetings on the same day, as in Form 189, mutatis mutandis. 
 
 To the Directors of the Co, Limtd, 
 
 "VVe, the undersigned meml)ers of the above-named co, holding in the Form 191. 
 
 aggregate shares and upwards in the capital thereof, do hby, in K^TuisitioiToT 
 
 psnance of the provisions in this behalf contd in the articles of members for a 
 association of the co, require you to convene an extraordinary general Sonera ^ 
 
 meeting of the co, to be held on Monday, the th day of June, 1884, 
 
 at six o'clock in the afternoon, for the ppose of considering, and, if 
 thought fit, passing, the subjoined resolntion. 
 
 Resolutio7i. 
 
 That, &c. \_sct it o?/i.] 
 Dated, &c. 
 
 See supra, p. 1.3 1, Clause GO. 
 
 iSTotice [_as in Form 184, adding .-] 
 
 This notice is given by the undersigned members of the co [or by the Form 192. 
 direction of the members of the co specified in the schedule hto and] ^^ .. , 
 holding in the aggTegate upwards of one-fifth of the capital in exercise members 
 
 of the power conferred by article of the co's articles of association, ^'■^^^^^'i ">^et- 
 
 the directors having failed for days after the deposit of a requisition 
 
 in accordance with such articles of association to convene a meeting for 
 the pposes above meutd. 
 
 Dated, &c. \_Names of conveners.'] 
 
 If the words in brackets are used, a schedule of names will be added, and 
 the notice will be sitrned by some person on behalf of the conveners. In either 
 case printed signatures would probably be sufficient. 
 
 Winding up Notices. 
 
 See infm. Winding up. 
 
 Sometimes in view of a winding up it is desirable to send out a circular to 
 shareholders making grave statements as to the directors and promoters, &c. 
 See Quartz Hill Co. v. Beall, 20 C. Div. 501 ; 30 W. E. 58i, and Plating Co. v. 
 Farquharson, 17 C. D. 19, as to restraining such circulars.
 
 c)iQ NOTICES. 
 
 Form 192. 
 
 Notices to the Registrars of Joint-Stock Companies. 
 
 The Act requires a considerable number of notices to be given to the regis- 
 trar. Every such notice requires a 5s. stamp. See Table B. in the first 
 schedule to the Act of 1862, and suxira, p. 73. The notices are in many cases 
 made out on skeleton forms supplied by the registration agents. 
 
 The following are some of the cases in which a notice must be given : — 
 
 Notice to Office. 
 
 Section 39 of the Act provides that : " Every company under this Act shall 
 have a registered office, to which all communications and notices may be ad- 
 dressed. If any company under this Act carries on business without having 
 such an ofiice, it shall incur a jienalty not exceeding five pounds for .every day 
 during which business is so carried on." 
 
 And section -10 jirovides that : " Notice of the situation of such registered 
 office, and of any change therein, shall be given to the registrar, and recorded 
 by him. Until such notice is given, the company shall not be deemed to have 
 complied with the provisions of this Act, with respect to having a registered 
 office." 
 
 The ordinary form of notice is as follows : — 
 
 The Co, Limtd. 
 
 Form 193. To the Registrar of Joint Stock Cos : — 
 
 The Co, Limtd, hby give you notice, in accordance with the 
 
 Companies Act, 1862, that the registered office of the co is situated 
 at, &c. 
 
 Dated, &c. A. B., Secretary. 
 
 The notice on change of office is the same as above, only that the word 
 " now " is inserted before the word " situated." 
 
 Notice of Consolidation of Shares and Conversion of Shares into Stock. 
 
 By section 28 of the Act : " Every company under this Act having a capital 
 divided into shares, that has consolidated and divided its capital into shares of 
 larger amount than its existing shares, or converted any portion of its capital 
 into stock, shall give notice to the registrar of joint-stock companies of such 
 consolidation, division, or conversion, specifying the shares so consolidated, 
 divided, or converted." 
 
 Notice of Increase of Capital or in Number of Members. 
 
 Section 3i of the Act is as follows : " Where a company has a capital divided 
 into shares, whether such shares may or may not have been converted into 
 stock, notice of any increase in such capital beyond the registered capital, and 
 where a company has not a capital divided into shares, notice of any increase 
 in the number of members beyond the registered member, shall be given to the 
 registrar in the case of an increase of capital, within fifteen days from the date 
 of the passing of the resolution by which such increase shall have been autho- 
 rised, and in case of an increase of members within fifteen days from the time 
 at which such increase of members has been resolved on or has taken jjlace ; 
 and the registrar shall forthwith record the amoiint of such increase of capital 
 or niemliers : if such notice shall not be given within the period aforesaid, the 
 company in default shall incur a penalty not exceeding five pounds for every 
 day during which such neglect to give notice continues, and every director and
 
 FORMS. 237 
 
 manager of the company who shall knowingly and wilfully ai^thorise or jiermit Foritl 193. 
 
 such default shall incur the like penalty." 
 
 The usual form of notice is as follows : — 
 
 The Co, Limtd. 
 
 To the Registrar of Joint Stock Cos :— Form 194. 
 
 The Co, Limtd, hbj give you notice, that by a resolution of the Notice of 
 
 <'0 in general meeting, passed the day of [ilte form vwst he increase of 
 
 varied if the increase is effected by special resohdion, or ly resolution of ' 
 the directors'], the nominal capital of the co has been increased by the 
 
 addition thereto of the sum of 1., divided into shares of 1. 
 
 each, beyond the registered capital of /. 
 
 Dated, &c. A. B., Secretary. 
 
 In addition to a 5s. registration stamj), a notice of increase of capital or in 
 number of members must be stamped as above mentioned, p. 216. 
 
 Notice of Special Resolution. 
 
 By s. 53 of the Act it is provided that : " A copy of any special resolution 
 that is passed by any company under this Act shall be printed and forwarded 
 to the registrar of joint-stock companies, and be recorded by him. If such copy 
 is not so forwarded within fifteen days from the date of the confirmation of the 
 resolution, the comj^any 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 manager of the company who 
 shall knowingly and wilfully authorise or permit such default shall incur the 
 like penalty." 
 
 The following is the form used : — 
 
 (Copy.) 
 
 Special Resolutions. 
 
 The ~^^ Co, Limtd. 
 
 Passed — th , 1877. Confirmed — th , 1877. 
 
 At an extraordinary general meeting of The Co, Limtd, duly Form 195. 
 
 convened and held at, &c., on the — th day of , 1884, the subjoined „^ ^ ^^ suecial 
 
 special resolution was duly passed, and at a subsequent extraordinary resolutions, 
 general meeting of the sd co, also duly convened and held at the same 
 
 place on the — th day of , 188-1, the subjoined special resolution 
 
 was duly confirmed. 
 
 " That," &c. , Secretary. 
 
 A special or extraordinary resolution need not be advertised in the Gazette 
 unless it is for winding up. 
 
 The Co, Limtd. 
 
 Xo. — . 24, Street, S.W. 8th August, 1883. 
 
 To , 
 
 Form 196. 
 
 The directors, by virtue of the powers given to them by clause — of Notice of 
 the articles of association, having determined to pay an interim dividend warrant.
 
 218 NOTICES. 
 
 Form 196. of — p. c. [fi'co of income tax] upon the ordinary shares [or the pcl-up 
 capital]. 
 
 I beg to hand you herewith a warrant [or draft] for /., the 
 
 amount of such dividend in respect of ■ lU/. shares [upon which the 
 
 sum of /. has been pd]. 
 
 This half-sheet is to l)e retained by the shareholder, who must sign 
 the warrant at the foot hereof, and pass that only through a banker for 
 paymt. 
 
 The 
 
 Co, Limtd-. 
 
 Interim Dividend, I880. 
 
 To the Bank, Limtd. 3rd August, 1888. 
 
 Pay to the owner of the sum of 1. 
 
 For the above-named co, 
 
 , Directors. 
 
 Signatures of Shareholders, , Secretary. 
 
 Form 197. Herewith I beg to hand you a warrant for the dividend at the rate 
 
 Anotlier *^^ — P- ^-J ^^P^^^ shares in respect of which the sum of /. 
 
 has been pd at meeting, with the interim dividend of — p. c. pd on 
 
 the last, the dividend of 8 p. c. p. a. for the year ending , 
 
 1883. 
 
 The 
 
 Co, Limtd. 
 
 Form 198. I ani instructed to forward you the subjoined statemt for tlie amount 
 Anotlier. '^f the dividend on the shares therein mentd, free of income tax, and tho 
 
 warrant annexed for the amount. 
 
 Dividend Statement. 
 
 Description 
 of Shares. 
 
 Rate per 
 cent. 
 
 Number of 
 Shares. 
 
 Period. 
 
 Amount. 
 
 
 
 
 
 
 This dividend statemt to be retained by the proprietor. 
 
 Total £■ 
 
 X.B. — Proprietors are requested to give to secretary early notice of 
 any change of address.
 
 rOEMS. 210 
 
 The Co, Limtd. Form 19Sa. 
 
 Xo. — . Twexty-Third Dividend. AnotUcr. 
 
 Dividend for the half year ending — June, 188 — , at the rate of 
 
 eight pounds [8/.] p. c. p. a., payable on and after th August, 
 
 188—, at tlie Bank, Street, E.C. 
 
 £ s. d. 
 Six Months on [lo] fully pd up 10/. shares, each at 
 
 ds. per share 
 
 Less income tax at the rate of — (J. in the /. 
 
 The ahove claim stands in the name of 
 
 This portion to he retained by the shareholder. 
 The warrant to be torn oft", and presented at the bankers after being 
 signed at the foot. 
 
 / hhij ccriifij that I hare deducted fur income tax, the amoinii set forth 
 ill the above statemt, and that the amovnt so dedvcted witj he 2^d hij me to 
 the pro2>er officer for receijd of taxes. 
 
 , Secretary. 
 
 X.B. — Persons requiring repaymt of income tax are informed that 
 the inland revenue will receive this statemt as a voucher in claiming 
 taxes. 
 
 See as to income-tax, note, infra, p. 220. 
 
 To the Registrar of Joint Stock Cos:— Form 189. 
 
 I, the undersigned, being the liq of the A. Co, Limtd, give you notice consent to 
 that the sd co is in course of being dissolved, and I hl;)v, under the mo- "^"' co'"iw".v 
 
 . 1 "i 1 IP /• 1 using luime ot 
 
 visions of the Companies Act, 18G2, section 20, and on behali oi the co, oi,i. 
 testify its consent to the registration of a new co, by the name of the A. 
 Co, Limtd. 
 
 C. D,, Secretary. A. B., Liquidator. 
 
 Dated, &c. 
 
 The above is the ordinary form. The registrar requires it to be signed by 
 the liquidator, or by two of the directors, or by the whole of the members, 
 Avhen the subscribers to the memorandvim of association are the only members, 
 or by any other person duly authorised at a general meeting, the date of which 
 should be given, and to be countersigned by the secretary (if any). 
 
 See further infra, introductory notes to " Eeconstruction " and "Amalgama- 
 tion." 
 
 For other notices, see Index. 
 
 Income-Tax. 
 
 By Schedule D. to the 2nd section of 10 & 17 Vict. c. 31., duties are granted 
 to the Crown (inter alio) — 
 
 " For and in respect of the annual profits or gains arising or accruing to any
 
 220 
 
 NOTICES. 
 
 Form 199 person residing in the United Kingdom from any kind of property whatever, 
 
 '- whether situate in the United Kingdom or elsewhere, and for or in respect of 
 
 the annual profits or gains arising or accruing to any person residing in the 
 United Kingdom from any profession, trade, employment or vocation, whether 
 the same shall be respectively carried on in the United Kingdom or elsewhere, 
 and to be charged for every twenty shillings of the annual amount of such 
 profits and gains. 
 
 " And for and in respect of the annual profits or gains arising or accruing to 
 any person whatever, whether a subject of Her Majesty or not, although not 
 resident within the United Kingdom, from any property whatever in the 
 United Kingdom, or any profession, trade, emijloyment or vocation exercised 
 within the United Kingdom, and to be charged for every twenty shillings of 
 the annual amount of such profits and gains." 
 
 And by s. 5 the duties imposed by that Act are directed to be assessed under 
 the regulations of 5 & 6 Vict. c. 35, and the Acts therein mentioned or re- 
 ferred to. 
 
 By 5 & G Vict. c. 35, s. 40, it is enacted that "all ... . companies . . . ., 
 whether corporate or not corporate, shall be chargeable with such and the like 
 duties as any persons," and certain officers thereof are required [s. 5-i] to make 
 the requisite returns. 
 
 By s. 12, any person not resident in Great Britain, whether a subject of Her 
 Majesty or not, shall be chargeable in the name of any trustee . . . ., or of any 
 factor, agent, or receiver having the receipt of any pi-ofits or gains arising as 
 herein mentioned and belonging to such persons 
 
 By s. 100 the duties granted by s. 1, Schedule D. (corresponding with Sche- 
 dule D. above referred to) are directed to be assessed under certain rules, of 
 which the following may be given : — 
 
 First. The duty to be charged in respect thereof shall be computed on a 
 sum not less than the full amount of the balance of the profits or gains of such 
 trade, manufacture, adventure, or concern upon a fair and just average of three 
 years ending on such day of the year immediately preceding the year of 
 assessment on which the accounts of the said trade, manufacture, adventure, 
 or concern shall have been usually made uiJ, or on the 5th day of April pre- 
 ceding the year of assessment, and shall be assessed, charged, and paid without 
 other deduction than is hereinafter allowed : Provided always, that in cases 
 where the trade, manufacture, adventure, or concern shall have been set up 
 and commenced within the said period of three years, the computation shall 
 be made for one year on the average of the balance of the profits and gains 
 from the period of first setting uj? the same : Provided also, that in cases where 
 the trade, manufacture, adventure, or concern shall have been set up and 
 commenced within the year of assessment, the computation shall be made 
 according to the rule in the sixth case of this schedule. 
 
 Second. The said duty shall extend to every person, body politic, or cor- 
 poi-ate fi'aternity, fellowship, comijany, or society, and to every art, mystery, 
 adventure, or concern carried on by them respectively in Great Britain or 
 elsewhere as aforesaid, except always such adventui-es or concerns on or about 
 lands, tenements, hereditaments, or heritages as are mentioned in Schedule (A.), 
 and directed to be therein charged. 
 
 Third. In estimating the balance of profits and gains chargeable under 
 Schedule (D.), or for the purpose of assessing the duty thereon, no sum shall 
 be set against, or deducted from, or allowed to be set against or deducted from 
 such profits or gains on account of any sum exiDended for repairs of premises 
 occupied for the purpose of such trade, manufacture, adventure, or concern, 
 nor for any sum expended for the suiij^^y of repairs or alterations of any imple- 
 ments, utensils, or articles employed for the puri^ose of such trade, manufac- 
 ture, adventure or concern beyond the sum usually exjDended for such pui-poses 
 according to an average of three years jireceding the year in which such 
 assessment shall be made, nor on account of loss not connected with, or arising
 
 FOEMS. 221 
 
 out of such trade, manufacture, adventure or concern, nor on account of any Form 199. 
 capital withdrawn therefrom, nor for any sum employed, or intended to be 
 employed, as capital in such trade, manufacture, adventure or concern, nor for 
 any capital employed in improvement of premises occupied for the purposes of 
 such trade, manufacture, adventure or concern, nor on account nor under pre- 
 tence of any interest which might have been made on such sums, if laid out at 
 interest, nor for any debts except bad debts, proved to be such to the satis- 
 faction of the commissioners respectively, nor for any average loss beyond the 
 actual amount of loss after adjustment, nor for any sum recoverable under an 
 insurance or contract of indemnity. 
 
 Fourth. In estimating the amovint of the profits and gains arising as 
 aforesaid, no deduction shall be made on account of any annual interest, or 
 any annuity or other annual payment payable out of such profits or gains. 
 
 The following rules which apj^ear in the same section may also be mentioned : 
 
 First — In estimating the balance of the profits or gains to be charged accord- 
 ing to either of the first or second cases, no sum shall be set against or deducted 
 from or allowed to be set against or deducted from such profits or gains for any 
 disbursements or expenses whatever, not being money wholly and exclusively 
 laid out or expended for the purposes of such trade, manufacture, adventure, 
 or concern, or of such profession, employment, or vocation, nor for any disburse- 
 ments or expenses of maintenance of the parties, their families, or establish- 
 ments, nor for the rent or value of any dwelling house or domestic offices, or 
 any part of such dwelling house or domestic offices, except such part thereof as 
 may be used for the purposes of such trade or concern not exceeding the pro- 
 portion of the said rent or value hereinafter mentioned, nor for any sum ex- 
 pended in any other domestic or private purposes distinct from the purposes of 
 such trade, manufacture, adventure, or concern, or of such profession, emjiloy- 
 ment, or vocation. 
 
 Second — The computation of the duty to be charged in respect of any trade, 
 manufacture, adventure, or concei-n, or any profession, whether carried on by any 
 person singly, or by one or more persons jointly, or by any corporation, company, 
 fraternity, or societ j% shall be made exclusive of the profits or gains arising from 
 lands, tenements, or hereditaments occupied for the purpose of such profession, 
 trade, manufacture, adventure, or concern. 
 
 By 5 & 6 Vict. c. 80, s. 2, " All persons intrusted with the payment of 
 annuities or any dividends or shares of annuities payable out of the revenue of 
 any foreign state to any persons, corporations, companies or societies in Great 
 Britain, or acting therein as agents, or in any other character," are to make a 
 return of the same as therein mentioned, are to pay the duty on such annui- 
 ties, &c., out of the monies in their hands on behalf of the persons entitled to 
 the same, and by IG & 17 Vict. c. 34, s. 10, these provisions are extended 
 to " all interest, dividends, or other annual payments payable out of or in 
 respect of the stocks, funds, or shares of any foreign company, society, 
 adventure or concern," and intrusted to persons in the United Kingdom for 
 payment. 
 
 And by s. 9 of 29 Vict. c. 3G, the last mentioned provisions are extended to 
 dividends and interest when the title of the person to whom the same may be 
 payable is shown by registration or entry of the name of such person in any 
 book or list ordinarily kept in the United Kingdom. 
 
 By subsequent Acts the duties are continued. See the Customs and Inland 
 Eevenue Act, 1883, iG Vict. c. 10. 
 
 As to the duties on mines, quarries, docks, waterworks, cana'.s. Sec, see 5 & G 
 Vict. c. 35, s. GO, and Mersey Docks v. Lucas, 8 App. Cas. 89G, and Ee Ryhope 
 Colliery Co., 7 Q. B. D. 185. 
 
 The following cases may be mentioned : Registration in England is not con- 
 clusive evidence that the company resides here, but, " if you find that a com- 
 pany which is registered in a particular country, acts in this country, has its 
 office and receives dividends in this country, you may say that those facts, coupled
 
 222 NOTICES. 
 
 Form 199. with registration, lead you to tlic conclusion that its residence is in that 
 country." Hviddlestone, B., Calcutta Jute Mills, 1 Ex. D. •lo3. But in no case 
 has it been held that a comjjany registered here is not a resident. Ceserea Co., 
 ibid.; Alexandria Water Co. v. Musgrove, 11 Q. B. Div. 171. As to "exercising 
 a trade " in England, see Eiichsen v. Last, 8 Q. B. Div. 41 1, a foreign tele- 
 graph company. 
 
 A company resident here and carrying on business abroad must pay duty 
 on all its profits, whether made at home or abroad. Alexandri<i Water Co. ; 
 Calcutta Jute Mills, ubi supra; and also on dividends intrusted to it for distri- 
 bution here ; but not so as to be doubly charged. Alexandria Water Co., ubi 
 supra. 
 
 As to deductions : none can be allowed for depreciation of buildings, 
 plant, &c. Forder v. Handyside, 1 Ex. D. 233 ; or for depreciation of leases, 
 Watney v. Musgrove, 5 Ex. D. 241 ; or for interest, Mersey Docks v. Lucas, 8 App. 
 Cas. 891 ; Alexandria Water Co. v. Musgrove, 11 Q. B. D. 174 : in the case last 
 mentioned the interest was payable abroad to bondholders. See also Coltness 
 Iron Co. V. Black, G App. Cas. 315, that no allowance for sinking new pits can be 
 made. A foreign company residing abroad, but having an agency here, must 
 pay on all its profits made here, and on any dividends intrusted to the agency 
 here for distribution. Atty.-Gen. v. Aleacander, L. E. 10 Ex. 20 ; Gilbertson v. 
 Ferguson, 7 Q. B. Div. 5G2. Accordingly it is sometimes found expedient, 
 where a company is carrying on a concern .abroad, to vest it in a local company, 
 in which the parent company will hold shares ; by so doing the parent company 
 avoids the duty on undivided profits, and on profits applied in making good 
 depreciations, extending works, &c. 
 
 As to the position of a British partnership carrying on business here and 
 abroad, see what was said in Gilbertson v. Ferguson, 7 Q. B. Div. 568 ; and as 
 to position of foreign partnership, see Sulley v. Atty.-Gen., 5 H. & N. 711 ; 29 
 L. J. Ex. 4G4. 
 
 As to the effect of change in partnership and conversion of concern into com- 
 pany, see Ryhope Colliery Co., 7 Q. B. D. 485. 
 
 As to assessing an undertaking as a quarry or mine, see Jones and The 
 Cvsmorthan Co., 5 Ex. Div. 93.
 
 CERTIFICATES. 
 
 IXTRODUCTORY NOTES. 
 
 By section 31 of the Act : A certificate under tlie common seal of tlie Certificates 
 company, specifying any sliare or shares or stock held by any member of •?"■."'"' •^'^'"'^ 
 a company, shall he prima facie evidence of the title of the memlter to title, 
 the share or shares or stock therein specified, and section ;->2 j^vovides 
 for the keeping of a rogistei' of members. " This power of granting 
 certificates is to give shareholders the opportunity of more easily deal- 
 ing with their shares in the market, and to afford facilities to them of oiiject of. 
 selling their shares by at once showing _a marketable title, and the effect 
 of this facility is to make the shares of greater value. The power of 
 giving certificates is, therefore, for the lienefit of the company in general ; 
 and it is a declaration by the coni})any to all the world that the person in 
 whose name the certificate is made out, and to whom it is given, is a 
 shareholder in the company, and it is given by the company with the 
 intention that it should be so used l)y the person to whom it is given, 
 and acted upon in the sale and transfer of shares." Per Cockburn, C J. 
 In re Baliia, dr., Rij. Co., L. R. 3 Q. B. 595 ; Smith's L. C, Vol. II.. 
 
 "While, however, the benefit is as above stated, it behoves the directors Re.-ponsi- 
 to use the utmost care in issuing certificates, for on the principle !''''*'<?^ ^^ 
 
 '- '^ issuing. 
 
 illustrated by Piclcard v. Scars, G Ad. & E. 409, and Freeman v. Cooke, 
 
 2 Ex. 054, the compauy is estopped from denying the truth of the 
 
 representation contained in the certificate as regards any person dealing 
 
 with the shares in reliance thereon. Thus in the case of In re BaJna, Forged 
 
 <J-r,, Fi/. Co., nU supra, the company acting upon a forged transfer, *™"'^^^''- 
 
 issued a certificate to the transferee. A., in reliance on this certificate. 
 
 purchased and })aid for the shares specified in it, and they were duly 
 
 transferred into his name. The forgery AAas subsequently discovered, 
 
 and the company was, under section 35 of the Act, ordered to restore 
 
 the name of the real o\\iier to the register. It was held in an action by Liability of 
 
 A., against the company, that he was entitled to recover as damages for company. 
 
 the loss of the shares, the value of the shares at the time the company 
 
 first refused to recognise him as a memljer, with interest at 4 per cent. 
 
 from that time. 
 
 See also Hart v. Frontino, L. R. 5 Ex. Ill ; EaglesfieJd v. J/arqui.'^ 
 of LondonderriJ, 4 Ch. Div. G93 ; Cottam v. Eastern Counties Rij. Co., 
 1 J. & H. 243 ; and Johnson v. Betiton, 9 Eq. 181 ; Seton 1345.
 
 o.>4 CERTIFICATES. 
 
 The rule, however, does not apply where the person to whom the 
 certificates are issued is a trustee for the company. In such a case the 
 company may refuse to register the transfer, Shrojjshire Union, &c., Co. 
 V. The Qumi, L. R. 7 H. L. 400. 
 
 And it must be shown that the party acted on the certificate, for if 
 he merely relies on a forged transfer, and is registered and receives a 
 certificate of title, the company is not estopped as against him. Shnm 
 V. Anglo-American Telegraph Co., 5 Q. B. Div. 188, and see Coates \\ 
 L. & S. W. Ry. Co., 41 L. T. 553. Where a certificate has been issued 
 describing a share as fully paid up or partly paid up, a purchaser of the 
 share acting on the faith of the certificate, is entitled to hold the share 
 as paid up. Burhinshaiv v. NichoUs, 3 App. Cas. 1004. And see svpra, 
 p. 13. But where A., being entitled to an allotment of paid-up shares 
 under a contract which requires filing but is not filed, procures an allot- 
 ment to B., who receives a certificate accordingly, the company is not 
 estopped as against B. RowJcmcVs Case, W. N. 1880, 80 ; 42 L. T. 785. 
 
 Stamp. A certificate that a person is the holder of shares or stock in a company 
 
 does not require any stamp. It is not a deed. The Queen v. 3Iorton, 
 
 Scrip certi- L. R. 2 C. C. R. 22. But a scrip certificate or other document entitling 
 any person to become the proprietor of any share of any company or pro- 
 posed company, requires a If?, stamp, and any person who executes, 
 grants, issues, or delivers out any such document before the same is 
 stamped, is liable to a penalty of 201. Stamp Act, 1870, section 101. 
 See clauses as fo certificates, siqmt, p. 117, et seq. 
 
 ficate.
 
 CEETIFICATES, 
 
 The Co, Limtd. 
 
 Incorporated under the Companies Acts, 18G2 and 18G7. Form 200. 
 
 Capital 100,000?., divided into 5,000 shares of 20/. each. o^dh^ 
 
 No. . 207. shares. certificate. 
 
 This is to certify that A. B., of , is the holder of shares, 
 
 numbered to inclusive, in the above-named co, subject to the 
 
 articles of association thereof, and that the sum of /. has been pd 
 
 up upon each of the sd shares. 
 
 Given under the common seal of the sd co, this day of . 
 
 The common seal of ttie sd co ■svas hereunto affixed in the presence of — 
 Directors. 
 Secretary. 
 
 Occasionally an abstract of the clauses contained in the articles of associa- 
 tion which regulate the right of transfer [^supra, p. 117], and give the company 
 a lien [stipra, p. 12-i], is indorsed on the certificate. 
 
 The Co, Limtd. 
 
 No. 
 
 Form 201. 
 
 Capital 100,000?., divided into .5,000 preference shares of 10?. each, 
 and 5,000 ordinary shares of 10?. each. preference 
 
 This is to certify that A. B., of , is the holder of of the shares. 
 
 above-mentd preference shares, numbered, &c., in the Co Limtd, 
 
 subject to the articles of association thereof, and that upon each of the 
 sd shares the fuU amount of 10?. has been pd up. 
 
 Given, &c. 
 
 In the case of preference shares, the certificate sometimes states the i-ate of 
 dividend, and whether cumulative or not.
 
 226 
 
 CEETIFICATES. 
 
 Form 202. 
 
 Certificate of 
 stock. 
 
 The Co, Limtd. 
 
 Capital 100,000/. stock 
 
 No. . 
 
 This is to certify that A. B., of - 
 
 — /. 
 
 -I., is the holder of the sum of 
 -I. stock of the above-named co, subject to the articles of association 
 
 thereof. 
 Given, &c. 
 
 The 
 
 Co, Limtd. 
 
 Form 203. No. 
 
 Another form 
 of certificate 
 of i^reference 
 shares. 
 
 Capital 50,000/., divided into 4,000 ordinary shares of 10/. each, and 
 1,000 10 p. c. preference shares of 10/. each, which preference shares 
 were created by the special resolution of the above-named co, passed the 
 day of , a copy of which is indorsed hereon. 
 
 This is to certify that A. B., of, &c., is the holder of of the 
 
 sd preference shares, numliered to inclusive, in the above- 
 named co, subject to the articles of association thereof, and that the sum 
 of /. has been pd up upon each of the sd shares. 
 
 Given, &c. 
 
 The 
 
 Form 204. 
 
 Form of share 
 •warrant. 
 
 Co, Limtd. 
 
 No. 
 
 Capital, &c. 
 Share "Warrant. 
 
 -/. shares. 
 
 — /. each, in the above-named co, subject to 
 and to the conditions indorsed hereon. [See 
 
 This is to certify that the bearer of this wan'ant is entled to 
 fully pd up shares of — 
 the regulations of the co. 
 siqn^a, p. 203.] 
 
 Given, &c. 
 
 As to share warrants, see supra, pp. 128, 203. 
 
 By s. 33 of the Act of 18G7 : " There shall be charged on every share warrant 
 a stamp duty equal to three times the amount of the ad valorem duty whicli 
 would be chargeable on a deed transferring the share or shares or stock speci- 
 fied in the warrant, if the consideration for the transfer were the nominal value 
 of such share or shares or stock." 
 
 For the ad valorem duty on transfers, see the Schedule to the Stamp Act, 
 1870, under " Conveyance or Transfer on Sale." It is as follows : — 
 
 £ s. d. 
 Where the amount or value of the consideration for the sale does not 
 
 exceed £5 .... 
 Exceeds £5 and does not exceed ,£10 
 10 .. „ 15 
 
 15 
 20 
 25 
 50 
 75 
 100 
 
 20 
 25 
 50 
 
 100 
 
 125 . 
 
 And so forth. 
 
 
 
 
 
 6 
 
 
 
 1 
 
 
 
 
 
 1 
 
 6 
 
 
 
 2 
 
 
 
 
 
 2 
 
 6 
 
 
 
 5 
 
 
 
 
 
 7 
 
 6 
 
 
 
 10 
 
 
 
 
 
 12 
 
 6
 
 FOEMS. 227 
 
 So that tlie proper stamp for a share warrant issued in respect of one lOJ. Form 204. 
 share will be 3s. ~ 
 
 By s. 127 of the Stamp Act, 1870, it is provided that : " If a share 
 warrant is issued without being duly stamped, the company issuing the same, 
 and also every person who, at the time when it is issued, is the managing 
 director or secretary, or other principal officer of the company, shall forfeit 
 the sum of 50L" 
 
 The Co, Limtd. 
 
 Share Warrant to Bearer. 
 ^Q Form 205. 
 
 Coupon, No. . First Dividend. Coupon to 
 
 Payable at the go's office. «^a^« warrant. 
 
 Secretary. 
 
 It is not uncommon to annex to a share warrant a series of coupons numbered 
 consecutively. When they are exhausted fresh coupons are issued. They 
 require no stamp. Where such coupons are issued it is desirable in the con- 
 ditions [supra, p. 203] to provide that the delivei-y of a coupon shall be a good 
 discharge to the company for the corresponding dividend. Sometimes a note 
 is added to the coupons stating that: "This coupon must be brought to the 
 company's office iipon the dividend being declared, in order that it may be ex- 
 amined and vouched." 
 
 On the day of , and at the expiration of each succeedino- Form 206. 
 
 period of ten years, the bearer, upon presentation of the appropriate y' j^^. 
 voucher, will be entled to a fresh sheet of coupons and a new voucher. fresh coupon.^. 
 
 Where share warrants are likely to be dealt in abroad they ai-e generally 
 printed in two or more languages side by side. 
 
 I HEREBY CERTIFY that The Co, Limtd, is this day incorporated Form 206a. 
 
 under the Companies Acts, 180 2 to 1883, and that this co is limtd. Certificate of 
 
 Given under my hand this day of . incorporation. 
 
 Section 18 of the Act of 1862 makes the registrar's certificate of the incor- 
 poration conclusive evidence that all the requisitions of the Act in respect of 
 registration have been complied with. See supra, p. 64. 
 
 I HEREBY CERTIFY that A. B. & Co., Limtd (which was constituted Form 207. 
 by articles of association, dated 18th April, 1883), is this day incorpo- certificate on 
 rated under the Companies Acts, 1802 to 1880, and that this co is limtd. registration 
 
 (liven under my hand at London tliis 10th day of May, 1883. Yll^'^ ^' 
 
 See s. 192 of the Act as to conclusive character of certificates. When the 
 deed is called a "deed of settlement," the certificate is framed accordingly. 
 
 Q 2
 
 PEOSPECTUSES. 
 
 INTRODUCTORY NOTES. 
 
 Prospectus. Where it is intended to appeal to the public for the capital to work a 
 
 company, the usual course is to issue a prospectus inviting applications- 
 for shares. Formerly a prospectus was almost always issued hpfore the 
 formation of a company ; hut since the Act of 18G2, which has 
 rendered the formation of a company so inexpensive and simple a 
 matter, it has become the general practice to issue the prospectus after 
 the formation {i.e., the registration) of the company. And it is desir- 
 able to continue this practice, since it prevents many disputes and 
 difficulties which used to arise under the old practice. 
 
 How prepared Jn most cases the prospectus is prepared by or under the direction of 
 pu s et . ^j^^ promoters before the company is formed, and after its formation is 
 submitted to the directors of the company, who pass a resolution 
 approving of it, with or or without modification, and directing it to be 
 issued. The mode in which the prospectus is brought to the notice of 
 the public varies considerably. In some cases the parties rely almost 
 entirely on the gratuitous circulation of printed copies of the pro- 
 spectus, but generally the document, or an abridgment thereof, is 
 advertised more or less extensively in the newspapers. 
 
 FoiTD. A prospectus is usually headed with the name of the company, and 
 
 generally states the nominal capital, the number and descrijition of the 
 shares offered, the terms of issue, the names of the directors, bankers, 
 sohcitors, brokers, auditors, and secretary, or of some of them, the objects 
 and prospects of the company, how applications for shares are to be made, 
 what contracts have been made, and where copies of the prospectus and 
 of the memorandum and articles of association and of the contracts can 
 be seen. 
 
 Skill required The preparation of a prospectus requires both skill and judgment, 
 
 bmtyTnvolved. ^"^^ involves great responsibility ; for not only does the success of the 
 company's appeal to the public depend to a considerable extent on the 
 attractiveness of the document, but, if it is improperly framed, the com- 
 pany, its directors and promoters, may be exposed to litigation and 
 liabilities of the most harassing and serious character. 
 
 Practice, As already mentioned, the prospectus is usually prepared by or under 
 
 the direction of the promoters, and with the privity of the directors. 
 Very commonly legal advice is taken on the draft, for ignorance of
 
 INTEODUCTOEY NOTES. 229 
 
 law or waut of judgmeut on the part of those who issue a prospectus 
 may lead to the most unfortunate and even ruinous consequences. As 
 appears below, lona fides and honesty are not a sufficient protection. 
 A person may be fully aware that he is bound to state all material facts ; 
 but from his position, perhaps blinded by his sanguine expectations, he 
 may be unable to form an impartial judgment as to what facts are 
 material. He may know well enough that he must abstain from mis- 
 representation ; but be totally unable to see that an ingeniously-framed 
 statement which he or some other person desires to insert is misleading. 
 He may believe a statement to be true ; but be forgetful or ignorant of 
 the danger he incurs in stating as a fact that which he only knows by 
 heai-say. He may think that as documents are oflFered for inspection, 
 applicants will be fixed with knowledge of their contents, and may not 
 notice in the prospectus that which renders the offer nugatory. He may 
 imagine that this or that is only a small matter, and may be sm-prised a 
 few months later to find that his want of judgment has led to his being 
 made a defendant in seventy or eighty actions. 
 
 The memorandum and articles of association and any preliminary 
 contracts are generally settled at the same time, for these documents are 
 very coimnonly framed in contemplation of the prospectus, and with 
 reference to what it is desired therein to say or not to say. The pro- 
 spectus should not be finally settled until after the formation of the 
 company. 
 
 A prospectus has in general to be considered in the interests — Interests to be 
 
 1. Of the applicants for shares ; 
 
 2. Of the company ; 
 
 3. Of the directors ; 
 
 4. Of the promoters ; 
 
 5. Of the vendor ; 
 
 and in many cases the same hand has to settle the document with a 
 due regard to the interests of all these persons. 
 
 It may be convenient here to refer to these interests separately : — 
 
 As TO THE Interests of Applicants for Shares. 
 
 In the interests of appHcants for shares the prospectus should be so Interests of 
 framed that persons taking shares upon the faith of it may not have 
 any cause for complaint. Accordingly it should not contain any mis- 
 representation, and should disclose all material facts. As was said by 
 Yice-Chancellor Kindersley, in the case of the New Bnmsunck and 
 Canada Ry. Co. v. Mwjgeridge, 1 Dr. and Sm. 38 — " Those who 
 issue a prospectus holding out to the public the great advantages 
 which will accrue to persons who will take shares in a proposed under- 
 taking, and inviting them to take shares on the fiiith of the representa- 
 tions therein contained, are bound to state everything with scrict and 
 scrupulous accuracy, and not only to abstain from stating as fact that 
 which is not so, but to omit no one fact within their knowledge the
 
 230 PEOSPECTUSES. 
 
 existence of which might in any degree affect the nature, or extent, or 
 quality of the privileges and advantages which the prospectus holds out 
 as inducements to take shares." 
 
 The rule laid down in this passage was termed a "golden legacy " Ly 
 Page-Wood, V.-C, in Henderson v. Lacon, 5 Eq. 2G2, and it was 
 cited with approbation in the case of the Ceniral Ry. Co. of Ve- 
 nezeula v. Kisch, L. R. 2 H. L. 113. In this case Lord Chelmsford, 
 L. C, in giving judgment, said : " In an advertisement of this 
 description [«>., a prospectus] some allowance must always be made for 
 the sanguine expectations of the promoters of the adventure, and no 
 prudent man will accept the prosj^ects which are always held out by the 
 originators of every new scheme, without considerable abatement. But 
 although, in its introduction to the public, some high colouring, and 
 evcu exaggeration, in the description of the advantages which are likely, 
 to be enjoyed by the subscribers to an undertaking may be expected, 
 yet no mis-statement or concealment of any material facts or circum- 
 stances ought to be permitted. In my opinion, the public, who are in- 
 vited by a prospectus to join in any new adventure, ought to have the 
 same opportunity of judging of everythmg ivhieli has a material heariuf/ 
 on its true cJmracter, as the promoters themselves possess. It cannot be too 
 frequently or too strongly impressed upon those w^ho, having projected 
 any undertaking, are desirous of obtaining the co-operation of persons 
 who have no other information on the subject than that which they 
 choose to convey, that the utmost candour and honesty ought to 
 characterise their published statements." It should also be seen, in the 
 interests of shareholders, that s. 38 of the Act of 1867 is complied with. 
 See infra, p. 242 et seq. 
 
 As TO THE Interests of the Company. 
 
 Interests of It is obviously for the interest of the company that its members 
 
 company. should have no cause to complain that they have been entrapped into 
 
 taking shares by an improperly framed prospectus, for such complaints 
 are calculated seriously to damage the company's credit, and to cripple 
 its operations. 
 Repudiation of But in the interest of the company the main point to be looked to 
 is, that the members shall not be aljle to repudiate their shares. In 
 this view the utmost care must be taken that the prospectus is free 
 from misrepresentations, and that it discloses all material facts, for it is 
 well settled that a person taking shares upon the faith of a prospectus 
 which does not comply with these rules, is entitled, upon discovering 
 the trutli, to have the contract rescinded, and to recover any money paid 
 to the company in respect of his shares. 
 
 The following are some of the cases in which relief has been given on 
 the ground of misrepresentation. The Central Ry. Co. of Venezuela v 
 Kisch, L. R. 2 H. L. 99, where the prospectus untruly stated (1) that 
 the contract for the execution of the company's works had been entered
 
 INTRODUCTORY NOTES. 231 
 
 into with a responsible contractor, (2) untruly stated that the contract 
 price was considerably within the available capital, (3) did not mention 
 that the concession which the company was formed to carry out had 
 been purchased ft'om the ori<>inal grantees at a cost of 50,000?., (4) 
 held out the advantages of a guarantee as to interest on capital given 
 by the contractor, but did not mention that it was limited to a certain 
 amount ; and upon the application of a person who had taken shares on 
 the fiiith of the prospectus, the contract was rescinded. So in Ross v. 
 Estates Investment Co., 3 Eq. 122, 3 Ch. G82, the prospectus untruly 
 stated that " more than half the first issue of shares has been ah-eady 
 subscribed for," and that " upwards of 70,000/. has already been ex- 
 pended on this estate l)y the vendor in buildings and improvements, in 
 addition to the purchase money paid by him for the land." It was 
 held that the plaintiff, who had taken shares on the faith of the pro- 
 spectus, was entitled to have his contract set aside, and his deposit 
 returned. 
 
 In another case the prospectus of a mining company stated that a 
 particular mine, containing " several very valuable claims, some of which 
 are in fiiU operation, and make large daily returns," had been contracted 
 to be purchased. The mine was, in fact, worthless, and there were no 
 claims in operation. It was held that a person who had taken shares on 
 the fiiith of the prospectus was entitled to relief. Smith's Case, 2 Ch. 
 €04 ; L. R. 4 H. L. 64. See also Kent v. Freehold Land Co., 4 Eq. 588, 
 S Ch. 493 ; Henderson v. Lacon, 5 Eq. 249 ; Blake's Case, 34 Beav. 639 ; 
 Cargill v. Boiver, 10 C. D. 502 ; Hall v. Old Talcmjocli Co., 3 C. D. 749. 
 And " Orders," infra. 
 
 A single misrepresentation of or omission to state a material fact may 
 be sufficient to entitle a person to repudiate his shares. 
 
 Moreover the danger of ambiguous statements should be borne in Careless 
 mind, for " if persons publishing a prospectus use such careless language ^^^^S^^se- 
 that their statements, literally read, are untrue, although this literal 
 sense is different from what they intended, this amounts to a misrepre- 
 sentation, for which they may be responsible to any one who is deceived 
 or injured by it." Per Lord Chelmsford, L. C, Hallows v. Fernie, 3 
 Ch. 475. And d fortiori the person deceived will be entitled to repudiate 
 his shares. See infra, p. 387. 
 
 A person who issues a prospectus " is not only answerable for what he 
 in his o^v^l mind intended to represent, but he is answerable for what 
 any one might reasonably suppose to be the meaning of the words 
 he has used." Per Cotton, L. J., Arhvright v. Newhold, 17 C. Div. 322. 
 
 It is true that the shares cannot be repudiated unless the applicant Reliance on 
 was induced to enter into the contract by the misrepresentation or prospectus, 
 omission. But it must be borne in mind that the onus of proving non- 
 rehance, at any rate in the case of a misrepresentation, is on the com- 
 pany ; for " if it is a material representation calculated to induce [the 
 shareholder] to enter into the contract, it is an inference of law that he 
 was induced by the representation to enter into it, and in order to take
 
 23a 
 
 PEOSPECTUSES. 
 
 Alteration 
 before allot- 
 ment. 
 
 Belief. 
 
 Inspection. 
 
 away his title to be relieTcd fi-om the contract on tlic ground that the 
 representation was untrue, it must be shown either that he had knowledge 
 of the facts contrary to the representation, or that he stated in terms or 
 showed clearly by his conduct that he did not rely on the representa- 
 tion." Per Jessel, M. R., Redgrave v. Hnrd, 20 C. Div. 21. See, how- 
 ever, the observations of Pollock, B., on this passage, in Roots v, 
 S'nclBig, 48 L. T. X. S. 218. 
 
 And where a representation is made in a prosjjectus (e.g. that A. is a 
 director), and before allotment the circumstances are altered (e.g. by A.'s 
 resignation), the alteration ought to be communicated to the applicant, 
 and he is entitled to repudiate. ScotlisJt Fefroleum Co., 2d C. Div. 438. 
 
 And where a misrepresentation as to a material fact in a prospectus is 
 untrue in point of fact, it is wholly immaterial, where rescission of con- 
 tract is sought, that the directors, when they made it, believed it to be 
 true. See judgment of Lord Cairns, L. C, Smith's Case, 2 Ch. 004 ; 
 L. R., 4 H. L. 71) ; Matthias v. Yetts, 4G L. T. 502 (Ct. of Ap.). 
 
 Nor if a prospectus contains misrepresentations, can the evil results be 
 prevented by offering applicants the opportunity of examining documents 
 Avhicli would correct the misrepresentations. Central Rg. Co. of Vene- 
 zuela V. Kisch, L. R. 2 H. L. 120. The applicant is entitled to say, 
 " You at least who ha^'c stated what is untrue, or have concealed the 
 truth for the purpose of drawing me into a contract, cannot accuse me of 
 want of caution, because I relied on your fairness and honesty." Per Lord 
 Chelmsford, Central Rg. v. Kisch, L. E. 2 E. & L App. 99. " The representa- 
 tion once made releases the party from an investigation, even if the oppor- 
 tunity is afforded." Per Cotton, L. J., Redgrave v. Hwd, 2<) C. Div. 23. 
 
 But in the absence of fraud or misrepresentation, it would seem that 
 offering a contract or other document for inspection operates as a dis- 
 closure of the facts which an inspection would disclose. See infra, p. 241. 
 
 It is not every misrepresentation or suppression that will confer a right 
 to relief. Denton v, Ifameil, 2 Ec[. 352 ; HaUoivs v. Fernie, 3 Ch. 467 ; 
 Hegman v. Enropean Central Co., 7 Eq. 154 ; Kennedg v. Panama Mail 
 Co., L. R. 2 Q. B. 580 ; Govefs Case, 1 C. D., 182 ; but in settling a 
 prospectus it is desirable, as far as possible, to avoid risk. 
 
 A person who has been induced by misrepresentation to take shares 
 may lose his right to relief l:)y delay : Sianyleg v. Soutii Co., 2 C. Div. 
 G85 ; Heyman v. Enropea^i Central Co., nil sap'a ; PeeVs Case, 2 Ch. 
 r,74 ; or by dealing with his shares in a manner inconsistent with re- 
 pudiation : ex iiarte Briggs, 1 Eq. 483 ; Nicol's Case, 3 De G. & J. 
 .387 ; Whitehouse's Case, 3 Eq. 790 ; or by reason of a winding-up 
 supervening before he has commenced proceedings to rescind the con- 
 tract : Oa/ces v. Turqiiand, L. R. 2 H. L. 325 ; Stone v. Citg and 
 County Banh 3 C. P. Div. 282 ; Hovldsworth. v. Citg of Glasgoiv Banh, 
 5 App. Cas. 317 ; Burgess's Case, 28 AV. R. 793 ; Scottish Petroleum Co., 
 23 C. Div. 413 ; but these considerations are of little moment in the 
 preparation of the prospectus. See p. 210 as to issuing circular after 
 discovery of misrepresentation.
 
 INTEODUCTOEY NOTES. 2-33 
 
 "Where a person has been induced to take shares by fraudulent mis- Company liable 
 representations contained in a prospectus issued by the company's *" -^mases. 
 directors, he is entitled not only to have the contract rescinded, but he 
 may also sue the company for the damages he has sustained. HouUh- 
 ivortli V. Ciiy of Glasgow Banl:, 5 App. Cas. 317. It was formerly sup- 
 posed that a company in such case could only be compelled to return 
 Avhat it had received, and could not be made liable in damages for the 
 fraud of its agent, but the contrary is now settled. A company is liable 
 for the fraud or other A\Tongful act of its agent just as any other prin- 
 cipal, and for the purpose of pleading the fraud or other act may be im- 
 puted to the company. See the case last mentioned, and Edwarils v. 
 JlicUand By., C Q. B. D. 287 ; Chapter v. BrwiswicJr Co., G Q. B. Di^-. 
 702 ; Ahrath v. Norih-Eastcm By. Co., 32 ■\V. E. 50 ; Banycr v. Great 
 Western By., 5 H. L. 80 ; Lindley, 32u ; Grant on Corps., 278. 
 
 But a person cannot sue the company for damages unless he rescinds 
 his contract to take the shares. HouJdswortJi \. City of Glasyoiv Banlc, 
 uhi supra and Burgess's Case. 
 
 And if by reason of delay or acquiescence, or the winding up of the 
 company or otherwise, he has lost the right of rescission, he loses also the 
 right to sue the company for damages, >S'. C. This does not, however, pre- 
 vent him from suing the directors or other persons who actually made 
 the misrepresentations. See further, infra. As to s. 38 of the Act of 
 1867, see vffra, p. 242. 
 
 As TO THE Interests of the Directors. 
 
 In seeing that the prospectus is jn'operly fi-amed, the interests of the As to interestfi 
 directors are in a great measure identical with those of the company, for °^ ^^i^'ectors. 
 the company's want of success involves more or less loss of credit or of 
 prospective profit to the directors. But the directors have an additional 
 interest in the matter by reason of the serious liabilities in which they 
 may be involved by taking part in the issue of an improperly framed 
 prospectus. Of these the following may be mentioned : — 
 
 (a.) Where a person is induced by fraudulent misrepresentation in a Liai>iHty for 
 prospectus to take shares in a company and sustains loss, he can bring an ^'^^^epresenfca- 
 action of deceit and compel the directors or other persons who issued the 
 prospectus to make good his loss. Gerhard v. Bates, 2 Ell. & Bl. 47G ; 
 17 Jur. N. S. 1097, is an example of an action of deceit. There the 
 prospectus stated that the promoters did not hesitate to gTiarantee to the 
 bearers of 12,00(i shares a minimum annual dividend of 33/. per cent. 
 The defendants, who issued the prospectus, had no ground for offering 
 such a guarantee, and the shares turned out worthless. It was held that 
 the plaintiff, who had taken shares on the faith of the prospectus, was 
 entitled to recover damages from the defendants. 
 
 8o in ClarU v. Diclcson, G C. B. N. S. 453 ; 5 Jur. X. S. 1030, the 
 prospectus represented that it had Ijeen agreed that the proprietor should 
 make over his interest in the mines fur 5,00n/. in money and 5,000/. in
 
 closure not 
 actionable 
 
 234 PROSPECTUSES. 
 
 paid-up sliiirep. In reality the agreement was not made Avith the proprietar 
 but with two of the directors, and the defendants were held liable. See 
 also cases cited in Peelo v. Gurmy, L. R. 6 H. L. 377. 
 
 In Henderson v. Lacon, 5 Eq. 24:9, the prospectus falsely stated that 
 " the directors and their friends have subscribed a large portion of the 
 capital, and they now offer to the pubhc the remaining shares," and ifc 
 was held that the directors must make good the loss the plaintiff had sus- 
 tained. See "Orders," infra. See also Pcelc v. Gurneij, uM si/pra ; 
 Arhivrigid v. Neivlold, 17 C. Div. 301 ; 28 W. E. 829 ; 42 L. T. 785 ; 
 Smitli V. Chadwklc, 20 C. Div. 27, and Addenda ; Weir v. Barneff, 3 Ex. 
 Div. 33, 24G ; Amos v. Chadiviclc, 4 C. D. 8G9 ; 9 C. Div. 459. 
 Mere iion-dis- In order to establish a claim against the directors or other persons 
 who issue the prospectus, they must be proved guilty of active misrepre- 
 sentation ; mere silence is not sufficient. "Mere non-disclosure of mate- 
 rial facts, however morally censurable, however that non-disclosure might 
 be a ground in a proper proceeding at a proper time for setting aside an 
 allotment or purchase of shares, would in my opinion form no ground for 
 an action in the nature of an action for misrepresentation. There must, 
 in my opinion, be some active misstatement of fact, or, at all events, such 
 a partial and fragmentary statement of fact, as that the withholding of 
 that Avhich is not stated makes that which is stated absolutely false." 
 Per Lord Cairns, Peck v. Gurneij, L. R. (i H. L. 403. 
 
 In such an action " it is necessary to prove that a statement has been 
 made which, to the knowledge of the person making it, was false, or 
 which was made by him with such recklessness as to make him liable 
 just as if he knew it to be false, and that the plaintiff acted on that 
 statement to his damage." Per Cotton, L.J., Arlnvright v. NewMd, 17 
 C. Div. 320. 
 
 And, " even though the statement may be untrue, yet, if it was made 
 in good faith, and the defendant had reasonable gi'ounds for believing 
 it to be true, the defendant will succeed." Per Jessel, M.R., Smlllt v. 
 Cluulwklc, 20 C. Div. 45, and Addenda. 
 
 But a party may be liable without intending to deceive : he may 
 issue a prospectus " believing his statement to be true, and not intending 
 to deceive ; but he may through carelessness have made statements which 
 are not true, and which he ought to have known were not true, and if 
 he does so he is liable in an action for deceit ; he cannot be allowed to 
 escape merely because he had good intentions and did not intend to 
 defraud." Per Jessel, M.R., SmWi v. Chadwkk, uhi supra. And where 
 a fact is once within a man's knowledge he cannot excuse a misstatement 
 regarding it on the ground of forgetful u ess. Matthias v. Yetts, 46 L. T. 
 497. And, " there may undoubtedly be a fraudulent representation, if 
 made dishonestly, of that which the party does not know to be untrue, if 
 he does not know it to be true." Per Parke, B., Taylor v. Ashton, 11 M, 
 & W. 401. But there are judicial dicta which carry the matter still 
 further ; thus in Eeese River Silver Mininy Co. v. Smith, L. R. 4 H. L. 
 79, Lord Cairns said : " When I say ' a fraud,' I do not enter into any
 
 INTEODUCTORY NOTES. 
 
 135 
 
 question with reg'ard to the imputations of what may be called ' fraud ' 
 in the more invidious sense against the directors. I think it may be 
 quite possible, as has been alleged, that they were ignorant of the 
 untruth of the statements made in their prospectus. But I apprehend it 
 to be a rule of law, that if persons take upon themselves to make asser- 
 tions as to which they are ignorant, whether they are true or untrue, 
 they must in a civil point of view be held as responsible as if they had 
 asserted that which they knew to be untrue." 
 
 Liability may be incurred even when the words are ambiguous. " In Ambiguity, 
 that case the plaintiff must tell us what he relied on. It is for him to 
 say, ' I relied on the stateuicnt in this meaning ; that meaning I took ; 
 if it is ambiguous, it is the fault of the defendant, and relying on that I 
 entered into the contract.' " SmitJi. v. Chadwick, 20 C. Div, 45, and 
 Addenda ; Clarice v. Dicli-son, G C. B. N. S. 14;"). And see infra, p. 387. 
 
 Moreover, if persons who issue a prospectus use such careless language 
 that their statements literally read are untrue, although the literal sense 
 is different from what they intended, this amounts to a misrepresentation 
 for which they are responsible to any one who is deceived or injured by 
 it. Hallows V. Fernie, 3 Ch. 475. 
 
 Where a person is entitled to sue the directors or others for misrepre- Directors may 
 
 sentation in a prospectus, he is not bound to repudiate his shares. If he H^ ^"^^^ though 
 ^ -^ ^ shares retained, 
 
 keeps the shares and they are of any value, the damages will be reduced 
 
 'pro'tanto. Twycross v. Grant, C. P. Div. 542 ; ArJcivrif/ht v. Neirhold, 17 
 
 C. Div. 301. And the right of action is not lost by a winding-up super- 
 vening. Addie V. Tltp Western Banlc, L. E,. 1 H. L. Sc. 145 ; Henderson 
 V. Lacon, 5 Eq. 249 ; Cargill v. Bower, 10 C. D. 502. Nor is the party 
 complaining bound, as in a proceeding to rescind a contract, to ])roceed 
 forthwith. He can bring his action at any time within the limit (viz., 
 six years) allowed by law, for an action on the case. 21 Jas. I. c. 10 ; 
 Peeh V. Gurncy, L. R. 6 H. L. 384. The time, however, only runs from 
 the discovery of the fraud, or from the time when, with reasonable 
 diligence, the fraud might have been discovered. Gihls v. Guild, 
 9 Q. B. D. 59. 
 
 But it may be observed here that the directors who issue a false pro- Directors only 
 spectus are only liable to the original allottees of shares ; they are not ^'.'['^'^ ^^ 
 liable to subsequent purchasers of the shares unless some direct con- 
 nection between the directors and the transferees can be made out. 
 Peelc V. Gurnei/, L. R. 6 H. L. 401. 
 
 Moreover an action for relief on the ground of fraudulent misrepre- Personal 
 sentation is of a personal character, and accordingly, unless it can be ^jl^^'^''^" 
 shown that the estate of the party making the representation has received 
 benefit fi-om the deceit, his executors cannot be made liable. FeeJc v. 
 Gurney, ul)i supra. 
 
 But the right of action of the party who has been defrauded survives, 
 and passes to his personal representatives. Twycross v. Grant, 4 C. P. 
 
 D. 40. 
 
 As to the measure of damages in an action for misrepresentation, see Measure of 
 
 damages.
 
 236 PEOSPECTUSES. 
 
 Tivycross v. Grant, 2 C. P. Div. 542 ; Arhcriijht v. Kewlold, 17 C. D. 
 oil ; 28 W. R. 829. 
 
 Liability mv\kv (J,, ) A director who knowingly issues a prospectus which does not 
 Act 0/1867 tjomply w^ith s. 38 of the Act of 18(17, is Hable to an action for damages 
 
 sustained by any person taking shares on the faith of the prospectus. 
 
 See further, infra, p. 242 ct seq. 
 Criminal (r.) As to criminal proceedings. By s. 84 of 24 & 25 Yict. c. !)G, it 
 
 is provided that : — 
 
 " Whosoever being a director, manager, or public officer of any body corpo- 
 rate or public company, shall make, circulate, or publish, or concur in making, 
 circulating, or publishing any written statement or account which he shall know- 
 to be false in any material particular, with intent to deceive or defraud any 
 member, shareholder, or creditor of such body corporate or public company, or 
 with intent to induce any person to become a sJiareholder or partner therein, or to 
 intrust or advance any property to such body corporate or public company, or 
 to enter into any security for the benefit thereof, shall be guilty of a misde- 
 meanour, and, being convicted thereof, shall be liable at the discretion of the 
 Court to any of the punishments which the Court may award, as hereinbefore 
 last mentioned." 
 
 The punishments referred to were : — "to be kept in penal servitude for 
 any term not exceeding seven years and not less than three years, — or 
 to be imprisoned for any term not exceeding tw^o years, with or without 
 hard lal)our, and with or without solitary confinement." 
 
 A prospectus is a " written statement " within the meaning of this 
 enactment, and accordingly if a prospectus is issued containing fraudu- 
 lent misrepresentations, the directors issuing it will be liable to prosecu- 
 tion under the Act ; they may also be ijrosecuted for conspiracy to 
 commit the statutory offence. Moreover, any person, whether a director 
 or not, who issues or takes part in the issue of a prospectus containing 
 fraudulent misrepresentations, may be prosecuted for conspiracy to 
 defraud. But of course such persons cannot be convicted, unless it can 
 be proved that they knew the representations to be false, and, acting 
 upon that knowledge and with the intention to deceive and defraud, 
 issued the prospectus. It should, however, be borne in mind, that if a 
 prospectus containing misrepresentations is issued it may not be difficult 
 to make out a ^;;w?r? /<^/f /e case against those who issued it, for "every 
 man must be tnkcn jJrimd facie, at least, to have intended what are the 
 natural and necessary consequences of his acts ; and if you find that there 
 was misrepresentation, and that it has ended in deft'auding the parties to 
 whom it was addressed, the fair and legitimate inference is, that the 
 intention w^as that the act done should carry with it the consequences 
 that have followed." Per Cockburn, C. J., in The Queen v. Gurney and 
 Others. Fiidason's Report, j). 254. 
 
 Tbe presumption may be rebutted, as it was in the case last mentioned, 
 but it is desirable that the prospectus should be so framed that there may 
 not be any I'oom whatever for criminal proceedings.
 
 INTRODUCTORY NOTES. 037 
 
 As to Commissions to Direciors : 
 
 111 settliiiG^ the prosi)ectus in the interest of the directors it is desirable I^iability for 
 
 ^ . - secret coraniis- 
 
 to inqmre whether they or any of them have been promised or expect ^ion or l)ribe. 
 
 any commission or payment from the vendor (if any) or the })roiuoters. 
 
 If possilde, such commissions and payments should be avoided ; but 
 
 sometimes they are unavoidable, and where this is so, the only thine; to 
 
 be done is to see that due disclosure is made to the company and the 
 
 members thereof, for any secret benefit will be regarded as a bribe, and 
 
 the reception thereof will be a misfeasance for which the directors will 
 
 be answerable to the company. Hai/s Case, 10 Ch. 593 ; Madrid Banh 
 
 V. Felly, 7 Eq. 447 ; Pearson's Case, .5 C. Div. 336 ; Englefield 
 
 Colliery Co., 8 C. D. 388 ; Nant-y-Glo Co. v. Grove, 12 C. D. 738 ; 
 
 '■IQ W. R. 504, and " Orders," infra. 
 
 As to the mode in which disclosure should l)e made, see infra, p. 241. 
 
 As TO THE Interests of Promoters. 
 
 Before proceeding to consider the interests of the promoters in regard ^^lio are 
 to the settlement of the prospectus, it would be desirable to define the 
 word " promoter," but no satisfactory definition can be found. How- 
 ever, there seems no doubt that " the word is not a word of art, it must 
 be understood by lawyers as it would by laymen "; per Bramwell, L. J., 
 Twycross v. Grant, 2 C. P. Div. 503 ; and that it "involves the idea of 
 exertion for the purpose of getting up and starting a company — of what 
 is called 'floating' it." Per Lindley, J., Emma Silver Mininy Co. v. 
 Leivis, 4 C. P. D. 4o7. 
 
 In T ivy cross v. Grant, Cockburn, C. J., said, "A promoter, I appre- 
 hend, is one who undertakes to form a company with reference to a 
 given project, and to set it going, and who takes the necessary steps tf» 
 iiccomplish that purpose"; but this definition cannot be regarded as 
 exhaustive, for the term promoter is frequently applied to persons whose 
 acts of promotion are by no means so unmistakable or extensive. See 
 also Ross V. Estates Investment Co., 3 Eq. 122 ; 3 Ch, G82 ; and Great 
 Wheal Polyooth Co., 49 L. T. 20 ; WhaJey Bridye Co., 5 Q. B. D. 109. 
 
 It may, however, be said with some confidence that the following are 
 promoters : — 
 
 A person who causes a company to be registered either on his own 
 l3ehalf or on behalf of himself and others. 
 
 A person who enters into an agreement with some other person or 
 persons (e.y., a vendor) to form a company, and in pursuance of such 
 agreement procures the registration of the company. Probably in such 
 case all parties to the agreement are promoters. 
 
 A person who on behalf of an intended company negotiates or enters 
 into an agreement for the purchase of property. At any rate such a 
 person is in a fiduciary position towards the company. 
 
 A person who procures the services of directors for an intended 
 company.
 
 238 PROSPECTUSES. 
 
 A person who allows himself to be named in the prospectus as being- 
 ready to answer any inquiries relating to the property of a newly-formed 
 company. Emma Mining Co. v. Leiois, 4 C. P. D. 396. 
 
 A person who becomes a member of any committee, provisional board, 
 syndicate, or association formed for the purpose of forming or floating a 
 company. 
 
 A person who agrees to contrilxite to the expenses of forming or 
 floating a company. 
 
 A person who undertakes to place the shares or issue the prospectus 
 of a new comi^any. 
 
 Where a company is formed to acquire and work a particular property, 
 the vendor — if he merely deals with the promoters, or some person put 
 forward by them, or with the company, and does not stipulate for or 
 take any part in the formation or floating of the company — is not, it is 
 conceived, a promoter. 
 
 The solicitor of the promoters is not a promoter if he confines himself 
 to purely professional business upon the usual terms ; but if he goes 
 beyond this — e. g., undertakes to push the company, or is to receive 
 special fees or benefits dependent on its being successfully floated, or 
 agrees to look to the company for payment — he is probably a promoter. 
 8ee Grrat Wheal Polgooth Co., 49 L. T. 20. 
 
 Those, however, who take part in the formation or floating of a com- 
 pany merely as the agents or servants of promoters, and without any 
 special personal interest in the formation or floating of the company, 
 are not, it is conceived, promoters. Thus, the solicitor's clerk who 
 tenders the memorandum of association for registration is not a pro- 
 moter ; nor is the printer who prints the prospectus ; nor the advertising- 
 agent who procures the insertion of the prospectus in the newspapers. 
 But even these persons, it is conceived, may become promoters — e.g., if 
 in consideration of a commission to be paid by a promoter they under- 
 take to push the company, or agree to act for remuneration altogether 
 or in part coutingent on the floating of the company. 
 
 A person is not the less a promoter because he keeps his own name in 
 the background and puts others forward as the ostensible promoters. 
 Phosphate Sewage Co. v. Hartmont, 5 .C Div. 452 ; Bagnall v. Carlton,. 
 r. C. Div. 371. 
 
 A person may become a promoter either before or after the formation 
 of the company. Emma Silver Milling Co. v. Leiuis, 4 C. P. D. 407. 
 
 Generally there is very little difficulty in determining whether a person 
 is or is not a promoter, for i)i most cases a person who takes part in the 
 formation or floating of a (company does not confine himself to some 
 isolated act of promotion, but does a great many things which leave 
 little room for doubt. 
 
 The question whether a person is or is not a promoter is a question of 
 fact fox the jury or the judge sitting as a jury. Emma Silver Mining Co. 
 V. Lewis, 4 C. P. D. 396 ; Same Co. v. Grant, 11 C. D. 91 ; and Twy- 
 cross v. Grant, 2 C. P. Div. 469.
 
 INTRODUCTOEY NOTES. 239 
 
 111 many cases the prospectus is issued by the promoters, or some of When pro- 
 them, and in other cases, though nominally issued by the directors, it ™ye?or'^^°°' 
 may be considered as constructively issued by the promoters. Thus, in prospectus. 
 2\'eir Somhrcro Co. v. Erlangcr, 5 C. Div, 111, Jessel, M. R., said, "Now, 
 this prospectus was issued, in my view of the case, by the promoters. It 
 was actually prepared by them, and was brought ready printed to the 
 meeting. It was nominally adopted by the directors ; but, as I before 
 said, I look upon two out of three directors as merely agents of the 
 ])romotei'S, and their adoption would not make it more or less the act of 
 the promoters. It was, in fact, the prospectus of the promoters." 
 
 AYhenever the prospectus can l)y possibility be deemed the prospectus Interest of 
 of the promoters, it should be seen in then- interests — promoters, 
 
 (a.) That it is free from misrepresentation, othenvise the promoters 
 will be liable to be sued in the same way as directors are 
 liable. Siqrra, p. 23o. 
 (J.) That it complies with s. 38 of the Act of 1S67, infra, p. 242, 
 otherwise the promoters will be liable to proceedings as below 
 mentioned. 
 
 ^Moreover, it must be borne in mind that a promoter stands in a fidu- Fiduciary 
 ciary position towards the company he promotes, and accordingly is not P°^'*i"°- 
 permitted to make any profit out of his position without the fullest dis- 
 closure to the com])any. 
 
 If, in defiance of this rule, a promoter makes a secret profit — e. g., by 
 accepting a commission in cash or shares from a person who sells pro- 
 perty to the company — he is accountable to the company, and can be 
 compelled to surrender the profit. Phosjihate Sewage Co. v. Hartmont, 
 5 C. D. 394 ; Neiv Somlrero Co. \\Erlanger, 3 App. Cas. 1218 ; Bagnall 
 V. Carlton, 6 C. Div. 371 ; Emma Silver Mining Co. v. Grant, 11 C. D. 
 1)18 ; Emma Silver Mining Co. v. Lewis, 4 C. P. Div. 39G ; Wialeg 
 Bridge Co. v. Green, 5 Q. B. D. 109. 
 
 Nor, having regard to , s. 49 of the Bankruptcy Act, 18G9, will 
 bankruptcy or hquidation in aU cases relieve him. Thus in Emma 
 Mining Co. v. Grant, the defendant, who Avas a promoter of the plaintiff 
 company, and had accepted a secret commission from the vendor, was 
 ordered personally to pay the amount of his profit although he had 
 taken proceedings for the liquidation of his affairs and had obtained his 
 discharge. 17 C. D. 122 ; Ross v. Guttericlge, 48 L. T. 117. See also 
 Ex parte Hemming, 13 C. D. 1G3. 
 
 As to the period of limitation. It has not been settled how far it Limitations. 
 applies where promoters have made illegitimate profits. The Judicature 
 Act, 1873, s. 25 (2), enacted that "no claim of a cestui qne trust against 
 his trustee for any property held on an express trust, or in respect of any 
 breach of such trust, shall be held to be barred by any Statute of 
 Limitations." 
 
 And in Sands v. Thompson, Fry, J., said : " My notion of an express 
 trust is that it is a trust which has been expressed, either in writing or 
 by v/ord of mouth, and that it does not include a trust which arises from
 
 240 
 
 PEOSPECTUSES. 
 
 Criminal 
 liability. 
 
 the acts of the parties. The term docs not apply, in my judgment, to 
 a resulting trust, to an implied trust, or to a constructive trust." 22 C. 
 D. G17 ; and see Petre v. Petre, 1 Drew. 3D 3. 
 
 Now a promoter in most cases is only a constructive trustee of his 
 profits, and before the Judicature Act it was well settled that although 
 no time barred a direct trust, that rule did not apply to a constructive 
 trust, and that equity would apply the statutory period of limitation l)y 
 analogy. Beclcford v. Wade, 17 Ves. 1)7, and other cases collected in 
 Lewin, 735. Accordingly, in most cases, a claim against a promoter 
 would appear to be barred six years after discovery of the fraud. See 
 Mefroj>oUlan BanJc v. Heiron, 5 Ex. Div. 325 ; Emma Co. v. Grant, 
 iM supra; FJifcroft's Case, 21 C. Div. 519 ; lure Cross, 20 C. Div. 109. 
 
 As to an action of damages for conspiracy against promoters, see 
 Emma Co. v. Leans, 4G L. T. 1(;8. 
 
 Promoters may also render themselves liable to criminal proceedings — 
 e.g., for conspiracy to defraud. The Queen v. AsplnaU, 2 Q. B. Div. 48 ; 
 I/i re Gold Co., 11 C. Div. 723. And see supra, p. 23G. 
 
 As TO THE IXTEEESTS OF THE VENDOR. 
 
 Interests of 
 vendor. 
 
 As already observed {supra, p. 1), a company is generally formed to 
 purchase some particular property or right. In many cases the vendor 
 is a promoter of the company, and where this is so, the observations 
 above (p. 237 et seq.) apply. 
 Special points. But in settling the prospectus in the interests of the vendor, the fol- 
 lowing matters should, in particular, be borne in mind : — 
 
 (a.) "\^^lere a company is promoted by a person or persons whose 
 property the company is intended to purchase, the real owner- 
 ship of the property should be disclosed to the company Ijy 
 the contract, prospectus, or otherwise. 
 (b.) Where a person, having recently acquired a property, is about to 
 sell it to a company which he promotes, it may be necessary, 
 at any rate in some cases {e.g., where the difference in price is 
 great), to disclose to the company the price at which he pur- 
 cliased. 
 (r.) Where a vendor (whether a promoter or not) is to give a commis- 
 sion or benefit to any promoter, director, or other person 
 standing in a fiduciary position to the company, the fact should 
 be disclosed to the company. 
 (d.) Where a vendor is in any way a party to the issue of the pro- 
 spectus, it should be seen that the prospectus is free from mis- 
 representation, and makes due disclosure of all material facts. 
 Unless the above rules are observed, the company may be entitled to 
 have the contract with the vendor set aside, and to recover any purchase- 
 money paid to him. Neiv Sombrero Co. v. ErJanger, 3 App. Cas. 123C ; 
 BagnaJl v. Carlton, G C. Div. 371 ; Lindsay Petroleum Co. v. Hard, L. R. 
 5 P. C. 243 ; In re Hereford and S. Wales Co., 2 C. Div. 621 ; Panama
 
 INTEODUCTOEY NOTES. 241 
 
 Co. V. India Paibler Co., lo Ch. 515 ; S//iifh v. Sorhij, 3 Q. B. D. 552, n. 
 And see " Orders," infra. 
 
 Moreover, if the vendor is a party to the issue of tlie prospectus, 
 it should be seen in his interest that section 38 of the Act of 1HG7 
 is complied with as helow mentioned. 
 
 The mode in which disclosure should be made by promoters, directors. How discIoi?ure 
 and others to the company and to applicants for shares therein, must of ^'^^^''^ ^^ 
 course depend on the circumstances of the case, but it will be borne in 
 mind : — - 
 
 1. That the prospectus, though purporting to be issued by the com- 
 pany may, it appears, be regarded as a notice to the company of anything 
 stated in it. " The prospectus conveyed to those who became share- 
 holders ill the company, and conveyed, therefore, to the company, notice 
 of some facts with regard to this contract which appear to hie to be of 
 great importance. The company was informed . . . ." Per Lord 
 Cairns, L.C., Erlanger v. Neir Sombrero Co., 3 App. Cas. 1239. 
 
 2. That every member of a company is deemed to have notice of the 
 contents of the memorandum and articles of association, and of any con- 
 tracts therein set out or referred to. Central Rij. Co. v. Kisch, L. R. 2 
 E. & I. Ap. 123 ; Ernest v. NicTioIls, fi H. L. Cas. 401 ; Ex parte Wil- 
 liams, 2 Erj. 218 ; Bank of Turlcey v. Ottoman Co., 2 Eq. 369 ; PeeVs 
 case, 2 Ch. G74 ; Griffith v. Paget, G C. D. 517. 
 
 But this rule clearly does not apply where there is fraud, for, " the 
 statute only meant to l)iiid those who had actually become members. 
 Any one who had without fraud taken shares could not allege ignorance 
 of anything contained in the memorandum of association, or the articles 
 of association, merely because he had not signed and sealed them ; but if 
 he never actually signed and sealed them, the statute cannot be taken to 
 impute to him knowledge of their contents so as to protect those who by 
 a fraud had induced him to do that Avliich, in the absence of fraud, 
 would have precluded him from saying he was ignorant of their con- 
 tents." Per Lord Cranworth, Central Ry. Co. v. Kisch, L. R. 2 E. & 
 L Ap. 123. In that case \_sii/pra, p. 230] the prospectus contained mis- 
 representations, but it must not therefore be assumed that the rule will 
 always apply in the absence of misrepresentation, for where there is a 
 duty to disclose it would seem that non-disclosm"e may be deemed fraud. 
 See Lord Blackburn's judgment in Broivnlie v. Cam2)l)eU, 5 Ap. Cas. 
 950. And the rule would not be applied where the Court or a jury was 
 satisfied that the intention was fraudulent. 
 
 3. That every person who takes shares on the footing of a particular 
 prospectus is deemed to have notice of the contents of any contract or 
 other document thereby offered for inspection — at any rate, so far as is not 
 inconsistent with the facts stated or implied by the prospectus. Neif 
 Sombrero Phosphate Co. v. Erlanger, 5 C. Div. Ill ; S. C. 3 App. Cas. 
 12G2 ; Anderson's case, 7 C. D. 102 ; ffallo/rs v. Fernie, 3 Ch. 477. 
 
 Thus, where the prospectus offered a contract for inspection, Jessel, 
 
 E
 
 212 PEOSPECTUSES. 
 
 M. R., said, " If the shareholders had t>-ouc to see it (and I think in a 
 Court of Justice they cannot complain that they did not see it, but must 
 be treated as having- notice of its contents) they would have found a 
 recital of the contract from C. to E. omitting the price. . . ." Neiu 
 i^omhrcro Co. v. Erlauger, 5 C. Div. 111. 
 
 But when there is misrepresentation, this rule does not apply, " for 
 when men issue a prospectus in which they make false statements of the 
 contracts made before the formation of a company, and then say that the 
 contracts themselves may be inspected at the offices of the solicitors, it 
 has always been held that those who accepted those false statements as 
 true were not deprived of their remedy merely because they neglected to 
 go and look at the contracts." Per Jessel, M. E., Redgrave v. Hurd, 20 
 C. Div. 14. And at any rate, where fraudulent intent is established, it 
 would seem that offering a contract for inspection does not amount to. 
 notice. 
 Trocedure. Accordingly, when i^romoters intend to obtain a profit, or there are 
 
 other facts which ought to be disclosed, it is expedient to disclose them 
 by the prospectus and also by the articles. If it is impossible to state 
 them fiilly in the prospectus, they should be disclosed in the articles, or at 
 any rate in some contract therein referred to and offered by the prospectus 
 for inspection. And it may also be expedient, both in the prospectus and 
 articles, to state that applicants are to be deemed to have notice of the 
 contents of the contract. But each case must be separately considered, 
 and regard ])eing had to the manifold dangers of non-disclosures it is 
 well to be on the safe side. 
 
 Sect. .38 of the As to s. 38 of the Companies Act, ISO? : The section is as follows: — 
 Act of 1867. 
 
 Every prospectus of a company, and every notice inviting persons to subscribe 
 
 for shares in any joint-stock company, shall specify the dates and the names of 
 the parties to any contract entered into by the company, or the promoters, 
 directors, or trustees thereof, before the issue of such prospectus or notice, 
 whether subject to adoption by the directors, or the company, or otherwise, 
 and any prospectus or notice not specifying the same shall be deemed fraudu- 
 lent on the part of the promoters, directors and officers of the company know- 
 ingly issiiing the same, as regards any person taking shares in the company on 
 the faith of such prosj^ectus unless he shall have had notice of such contract. 
 
 Construction. Much difference of oj^'nion exists as to what contracts, regard being- 
 had to this enactment, must be specified in the prospectus ; but the 
 balance of authority is in favour of a construction which would render 
 it necessary to specify every contract by a promoter, director, or trustee, 
 which might reasonably be expected to influence persons reading the 
 prospectus in making up their minds whether or not they will apply for 
 shares ; and further that the contracts must be specified, whether made 
 before or after the person becomes a j^romotcr, director, or trustee, and 
 whether they relate directly or indirectly to the affairs of the company. 
 Remedy of The remedy of a person who has taken shares on the faith of a pro- 
 
 party deceived, j^pgcti^s offending against this section, is to sue the promoters, directors, 
 or officers issuing the same for the damages he has sustained. Govefs
 
 INTEODUCTOEY NOTES. 243 
 
 case, 1 C. Div. 182 ; Twycross v. Grant, 2 C. P. Div. 503 ; Sullivan v. 
 iVitmlfe, 5 C. P. Div. 455. 
 
 Accordingly iu preparing a prospectus it is essential to bear this Application of 
 section in mind, and to ascertain what contracts have been made, and to ^^'^*'^''"^- 
 consider carefully which of them ought to be specified. In many cases 
 there is little or no dilficulty in deciding the matter, but occasionally 
 questions of great nicety arise. It has not yet been settled whether a 
 verbal contract is withm the section, and many persons have acted on 
 the assumption that it is not necessary to specify such a contract. But 
 there is nothing in the section to exclude a verbal contract, and it seems 
 more than probable that this assumption is not warranted. See Ark- 
 tvriijht V. Ncwhold, 17 C. Div. 301 ; 28 W. R. 829. 
 
 As to the meaning of the word " promoter," see supra, p. 237, et seq. 
 
 The words " knowingly issue," in s. 38, mean neither more nor less 
 than issuing Avith a knowledge of the existence of contracts within the 
 section, and the intentional omission of them from the prospectus. Per 
 Cockburn, C. J., Twycross v. Grant, 2 C. P. Div. 542. This being so, a 
 grave responsibility is cast on those who have to advise on the section. 
 
 As to the measure of damages iu such an action, see Twycross v. 
 Grant, uht supra ; Arlcu:riyJtt v. NewhoJd, uM supra. 
 
 Occasionally, e.g., where a company has been in existence for some Waiving 
 
 time and has entered into manv contracts or where doubt exists as to beneftuttie 
 
 section. 
 whether some contracts that have been made are or are not within the 
 
 section, it is deemed expedient to insert in the prospectus a clause pro- 
 viding for a more or less qualified waiver of the benefit of s. 38, e.g. — 
 
 " The directors are advised [and believe] that the above are the only con- 
 tracts the dates of and parties to which are required by section 38 of the Com- 
 panies Act, 1867, to be specified, but in oi-der to i^revent any question, api^licants 
 for shares shall be deemed to waive any further compliance with that enact- 
 ment." Or, 
 
 " Other contracts have been made, but as the above is the only contract to 
 which the company is a party, applicants shall be deemed to waive the publica- 
 tion in accordance with section 38 of the Comj)anies Act, 18G7, of any fvirther 
 particulars as to such contracts." 
 
 Where this is done the form of application for shares should specifi- 
 cally refer to the prospectus, and the application should be for shares on 
 the terms thereof, or it may Vje deemed expedient to embody the waiver 
 in the application. There seems no reason to doubt the validity of such 
 a waiver, and it appears probable that, in the absence of fraud, it 
 protects the directors. 
 
 It may here be mentioned that s. 38 is applicable for the protection of S. 38 only 
 shareholders only. Accordingly it is not apphcable in the case of a ghardi'oMers. 
 bondholder. Cornell v. Hay, L. Pi. 8 C. P. 228. Nor does it enable the 
 company to sue. New Sombrero Co. v. Ertanger, 3 App. Cas. 1218. 
 Nor does it confer the right on a shareholder to repudiate his shares. 
 Governs case, 1 C. Div. 182. 
 
 The fact that s. 38 does not apply to bondholders and the like somo- 
 
 K 2
 
 244 
 
 PEOSPECTUSES. 
 
 .times induces the promoters of a company, Avhcre it is desired to apply 
 to the pubHc for capital but difficulties are apprehended in regard to 
 s. 38, to raise the capital on debentures. In such case there may 
 perhaps be no shares taken up except by the subscribers of the memor- 
 andum of association and any issued as paid up to the vendor. Ander- 
 son'' s case, 3 C. Div. 75. Sometimes, however, bonus shares are issued 
 to the debenture holders. See Finnsione's case, 20 Eq. 524 ; Uruguay, 
 <&c., Ry. Co., 11 C. D. 372, and supra, p. 39, but it may be doubted 
 whether a prospectus offering debentures for subscriptions, with a right 
 to bonus shares attached, is not " a prospectus inviting persons to sub- 
 scribe for shares " within the meaning of s. 38. 
 
 Care requisite 
 in framing 
 prosx^ectus. 
 
 Opinion of 
 promoters. 
 
 As to statinj 
 source of 
 information. 
 
 Wrongful 
 advertisement 
 of persons as 
 directors. 
 
 From what has been said the extreme importance of framing the. 
 prospectus with the utmost care, sufficiently appears. Some high 
 colouring may be used \_svpra, p. 230], but if a scheme or undertak- 
 ing is promising, a moderate tone is generally found to be the most 
 attractive. 
 
 The prospectus may state the oi^inion of those who issue it, e.g., as 
 to the value of the company's property, and if those persons are of 
 character and position their opinion may carry great weight, but care 
 should be taken that they have reasonable grounds for the opinion. 
 
 Where a prospectus is to contain statements which the directors 
 believe to be true but cannot verify, they should refer to the source of 
 their information, e.g., " M. A. has examined the property and reports, 
 &c. M. A.'s report lies for inspection, &c." Thus in SmifJi's case, 
 2 Ch. 604, the prospectus falsely stated that the mines were valuable and 
 in operation. The directors had issued the prospectus on the faith of 
 representations made by the vendor and without knowledge of their 
 untruth, and it was held that Smith was entitled to have his contract to 
 take shares rescinded. Turner, L. J., said that "if a company will take 
 upon itself to assume the authenticity of, and give credit to, the reports 
 Avhich are made to it, and represent as facts the matters stated in those 
 reports, it must take the consequences. If the company had confined 
 themselves to saying, ' We have received reports fi'om which we believe, 
 and have reason to believe, that these mines are in full operation, and 
 are making daily large returns,' it might, and no doubt would have been 
 very difficult for Mr. Smith to be relieved from the contract ; but the 
 company, instead of thus referring to the information received, stated 
 the circumstances as facts." 
 
 Care should of course be taken not to advertise in the prospectus the 
 name of any person as a director or officer of the company unless he has 
 been duly appointed and has consented to accept office. A person 
 whose name is advertised without authority may obtain an injunction to 
 restrain the company from advertising his name. Routh v. Webster, 
 10 Beav. 563. And a mis-statement as to the directors may enable an 
 allottee to repudiate his shares. Ilunster^s case, 14 W. K. 957 ; BlaMs
 
 FORMS. 
 
 245 
 
 case, 34 Bear. CP)9 ; Anderson's case, 17 C. D. ."01 ; Scottish Petrolevm 
 Co., 23 C. Div. 413. 
 
 Where the prospectus is issued before the company has been regis- Statement of 
 tered, great care should Ije taken in stating the objects of the proposed ° -"^^ *^" 
 company ; for if the objects of the comj)any when registered exceed or 
 differ materially from those stated in the prospectus, applicants may be 
 able to refuse an allotment or to repudiate their shares after allotment, 
 l)rovided they are not guilty of undue delay. Doivnes \. SJiip, L. R. 
 3 H. L. 343 ; PeeVscase, 2 Ch. 674, G84 ; Lawrence's case, 2 Ch. 412. 
 
 In order to avoid any risk of this, the objects should be finally 
 settled before the prospectus is issued, and applicants should be given an 
 opportunity of inspecting the draft memorandum of association. But, 
 as already mentioned [^supra, p. 228], the present practice is to issue the 
 jirospectus after the formation of the company. 
 
 "Where the prospectus is not issued until after the formation of the 
 company, the risk above mentioned docs not exist, for applicants arc 
 bound to look at the memorandum and articles of the company before 
 applying for shares. PeeVs case, 2 Ch. 074, approved in Oalces v. 
 Turquand, L. R. 2 H. L. 352. 
 
 The prospectus should state where copies of the memorandum and Inspection of 
 articles of association and of any contracts and other documents [sujnri, ^^ocuments. 
 p. 241], mentioned in the prospectus can be insj)ected. 
 
 Where it is intended to apply to the Stock Exchange for a settlement As to Stock 
 and quotation of the shares offered for subscription in the prospectus, it Exchange rules. 
 is necessaiy to include in the prospectus a co})y of the memorandum of 
 association of the co. It is usually printed within the fold of the pro- 
 spectus, but without the association clause or the names of the sub- 
 scribers. For extract from the Rules of the Stock Exchange, see infra, 
 p. 247. 
 
 FORMS. 
 
 The following is the outline of a prospectus : 
 
 The Co, Limtd. Form 208. 
 
 Incorporated under the Companies Acts, 18G2 to 1883 [whereby the liability Skeleton i>io- 
 of a shareholder is limited to the amount of his shares] . spectus. 
 
 The words in Vjrackets are very commonly inserted. 
 
 Capital 100,000/. divided into 1 0,000 shares of 10/. each. Payable 
 
 as follows : 1/. on applicon, 2/. on allotmt, and 2/. on the of , 
 
 and the balance when called for. 
 
 Directors. 
 
 [Names, addresses, and descriptions.]
 
 246 PROSPECTUSES. 
 
 Form 208. Bankers. 
 
 Solicitors. 
 
 Auditors. 
 
 Secretary. 
 
 Office. 
 
 This CO has been formed for the jipose, &c. 
 
 \_Herc will follow a statement of the ohjects and ]irosj)cds of the company. _^ 
 
 Applicons for shares should be made upon the accompanying,- form, 
 and forwarded to the bankers of the co, together with the amount 
 payable on applicon. If no allotmt is made, the deposit will be 
 returned without deduction, and where the number of shares allotted is 
 less than the number applied for, the surplus will be credited in reduction 
 of the amount payable on allotmt. 
 
 The following- contracts have been made, namely : — 
 
 (1.) A contract dated between A. B. and the co. 
 
 (:?.) A contract, &c. 
 
 Forms of applicon for shares may be obtained from the co's secretary 
 and bankers. 
 
 Copies of the memorandum and articles of association of the co, and 
 of the contracts above-mentioned, may be inspected at the office of the 
 go's solors. 
 
 Dated of . 
 
 The form of application for shares is usually annexed to the prospectus. It 
 .may be as follows : — 
 
 Form of Application for Shares. 
 Form 209. To the Directors of The Co, Limtd. 
 
 Application for GENTLEMEN, 
 
 Having pd to the co's bankers, Messrs. , the sum of .£ , 
 
 being a deposit of £ per share on shares in the above-named 
 
 CO, I request you to allot me that number of shares upon tlie terms of 
 
 the co's prospectus dated the of — — -, and I hby agree to accept 
 
 the same or any smaller numlicr that may be allotted to me, and to 
 
 pay the balance of £ per share on allotmt as pro\-ided by the sd 
 
 prospectus, and I authorise you to register me as the holder of the sd 
 shares. 
 
 Name in full. 
 
 Address. 
 
 Description. 
 
 Date. 
 
 Signature. 
 
 As to conditional applications^ see Ellcington's case, 2 Ch. 511 ; Pellatt's case, 
 2 Ch. 527 ; Simpson's case, 4 Ch. 184; Buckley, GO.
 
 1 Jankers' 
 receipt. 
 
 FORMS. 217 
 
 Annexed to the form of application will be a form of receipt as follows : — 
 
 The Co, Limtd. Form 210. 
 
 Bankers' Receipt {to he retained hij the applicant). 
 
 Received this day of of ]\Ir. , the sum of £ , being 
 
 a deposit of £— — ■ per sliarc upon shares in the above named co. 
 
 For the Bank. 
 
 To l)e signed by the bankers or secretary, and retained by tlie ap- 
 plicant. 
 
 An applicant for shares is bound from the time when notice of allotment is 
 g-iven or posted. Houseliold Fire Insurance Co., i Ex. Div. 216. Until notice 
 of allotment is given or posted there is no contract, and the applicant may 
 -withdraw. Pellatt's case, 2 Ch. 527. But an unstamped allotment letter may 
 be sufficient. In re Whitley Partners, Steel's case, 49 L. J. Ch. 176 ; 42 L. T. 11. 
 , And if the withdrawal of his application does not reach the company until 
 after the notice of allotment has been posted, it is ineffectual. Harris's case, 7 
 Ch. 587 ; Stevenson v. McLean, 5 Q. B. D. 357. 
 
 Where notice of allotment is duly posted the applicant is bound, even though 
 the notice never reaches him. Household Fire, c^'c, Co, v. Grant, ubi supra. 
 
 If no allotment is made the company is bound to repay the deposit, but the 
 deposit is not a trust fund. Moseley v. Cresseij's London Co., 1 Eq. 405 ; 14 
 W. E. 246. 
 
 Where A. applies on behalf of B. but without authority, and B. repudiates 
 the allotment, A. is liable in damages to the company, and the measure may be 
 the par value of the shares. Re National Coffee Pal., 32 W. E. 236 (Aug. 1883). 
 
 RULES OF LONDON STOCK EXCHANGE. 
 
 A company desiring a special settling day and quotation of its shares in the 
 official list, must bear in mind the following rules of the committee of the 
 London Stock Exchange : 
 
 129. The committee will appoint a special settling day for transactions in the Special settling 
 shares of a new company, provided that no allegation of fraud be substantiated ; days. 
 
 •that there has been no misrepresentation or suppression of material facts; that 
 ■sufficient scrip or shares are ready for delivery ; and that no impediment exists 
 to the settlement of the account. 
 
 130. The secretary of the share and loan department shall give one week's Documents 
 notice to the Stock Exchange of any application for a special settling day for required, 
 transactions in the shares of a new company, previously to such application 
 
 being submitted to the committee, and shall require the production of the fol- 
 lowing documents, viz.: — 
 
 The prospectus, the Act of Parliament, the articles of association, or a cer- 
 tificate that the company is constituted upon the cost-book system, under the 
 Stannary laws. 
 
 The original applications for shares, the allotment-book, signed by the chair- 
 man and secretary to the company, and a certificate verified by the statutory 
 declaration of the chairman and the secretary, stating the number of shares 
 applied for and unconditionally allotted to the public, the amount of deposits 
 paid thereon, and that such de]DOsits are absolutely free from any lien.
 
 us 
 
 PEOSPECTUSES. 
 
 Quotations of 
 shares of a 
 new company. 
 
 Issue oE new 
 shares within 
 12 months of 
 special settling. 
 
 Caution to 
 Jjrokers of new 
 companies. 
 
 [Formerly the preceding paragraph was as follows : — 
 
 " The orio-inal applications for shares, together with the allotment-hook, 
 signed by the chairman and secretary to the company, and a certificate signed 
 in like manner, stating the ntimber of shares applied for and nnconditionally 
 allotted, and the amount of deposits paid thereon." It has been altered Avith 
 a view to preventing such frauds as were practised by the promoters of the 
 Eupion Gas Company, Limited, The Queen v. Asinnall, 2 Q. B. Div. 48. See 
 Eeport of the Select Committee on Loans to foreign States, 1875 : Evidence of 
 Mr. Scott, p. 19, Question 403.] 
 
 The banker's pass-book, and a certificate from the bankers, stating the amount 
 of deposits received. 
 
 131. The committee will order the quotation of a new company in the ofiicial 
 list, provided that the company is of bomX fide character, and of sufficient mag- 
 nitude and importance ; and that the requirements of Rule 130 have been com- 
 plied with, and that the prospectus has been pul^licly advertised, and agrees 
 substantially with the Act of Parliament or the articles of association, and iu 
 the case of limited companies contains the memorandum of association ; that it . 
 provides for the issue of not less than one-half of the nominal capital, and for 
 the payment of 10 per cent, iipon the amount subscribed, and sets forth the 
 arrangements for raising the capital, whether by shares fully or partly paid up, 
 with the amounts of each respectively, and also states the amount paid or to be 
 paid, in money or otherwise, to concessionaires, owners of property, or others 
 on the formation of the company, or to contractors for works to be executed, 
 and the number of shares (if any) proposed to be conditionally allotted ; that 
 two-thirds of the whole nominal capital proposed to be issued have been applied 
 for and unconditionally allotted to the public (shares reserved or granted in 
 lieu of money payments to concessionaires, owners of property, or others, not 
 being considered to form part of such public allotment) ; that the articles of 
 association restrain the directors from employing the funds of the company in 
 the purchase of its own shares, and that a member of the Stock Exchange is 
 authorised by the company to give full information as to the formation of the 
 undertaking, and be able to furnish the committee with all particulars they . 
 may require. 
 
 In cases where fully paid shares have been granted in lieu of money pay- 
 ments, an official certificate will be required that the contract providing for the 
 issue of such shares has been filed with the registrar of joint-stock companies, 
 as prescribed by the 25th Section of " The Companies Act, 1867." 
 
 132. A company issuing, or promising to issue, new shares within twelve 
 months after the first settling-day appointed by the committee, unless under 
 special circumstances, shall be liable to exclusion from the official list. 
 
 133. The committee particularly caution brokers against giving the sanction 
 of their names to the bringing out of any company without due inquiry as to 
 the bona fides of its objects, the character of its promoters, directors, and con- 
 cessionaires, and of the other persons connected therewith. Members disre- 
 garding this caution are liable to be dealt with in such manner as the case may 
 require.
 
 DEBENTUKES. 
 
 INTRODUCTOEY NOTES. 
 
 COMPAXiES formed imder or subject to the Act of 1SG2 very com- issue of deben- 
 monly issue debentures : *"^"®^ common. 
 
 1. For the purpose of securing- the repayment of money borrowed. 
 
 2. In payment for proj^erty purchased, or services rendered, or money 
 due. 
 
 Formerly a debenture -was g'enerally framed as a covenaut by the As to deben- 
 
 corapany with the person to whom it was issued to pay to him, his ^^^'^ operating 
 i- -' 1 J^ •' ' as a covenant, 
 
 executors, administrators, or assigns, the principal money therein men- 
 tioned with interest, and Avas expressed to be given under the common 
 seal. 
 
 The right to sue for the recovery of money secured by an instrument chose in 
 so framed, being- a chose in action, was only assignable subject to the ''^'^ti""- 
 rules which prevailed as to the assignment of a chose in action. But Objections to 
 instruments so circumstanced were obviously not capable of l:»eing readily ^"^h mstm- 
 
 ■^ ^ o J ments. 
 
 and safely dealt with. However good the credit of the company issuing 
 them might be, dealings could not safely take place without investigation 
 of title, inquiries, assignments, notices, and legal advice. 
 
 The inconveniences of such a form having been felt, and serious loss Improvements. 
 having been incurred by investors ; Athencmm Life Assurance Sodeiij \. 
 Pooley, 1 GifF. 102 ; 3 De G. & J. 294 ; In re Naial Invesiment Co., ?> 
 Ch. 355 ; efforts were made to improve the form, and these efforts have 
 been so far successful, that debentures can now be framed in a manner 
 that facilitates investment by affording a convenient and attractive 
 security easily and safely dealt with. In the result, many millions are 
 now invested in such debentures, and companies that have obtained on 
 easy terms a debenture loan of from 10,000?. and uj^wards, are to be 
 numbered by hundreds. 
 
 The following are the principal kinds of debentures now generally Tbe several 
 used : 1. Debentures to bearer. 2. Registered debentures. 3. Debeu- ^o™^/"^ 
 
 . . . debentures, 
 
 tures to bearer capable of registration. 4. Registered debentures with 
 
 coupons to bearer. 
 
 And debentures of each kind may be framed as : — 
 
 (a.) Mortgage debentures, i.e., debentures secured hy mortgage or 
 
 ■charge ; or {h.) Unsecured debentures, i.e., debentures not secured b\- 
 
 mortgage or charge.
 
 250 DEBENTURES. 
 
 And also as (f.), determinable debentures ; or (d.), perpetual delien- 
 tures. 
 "To bearer." In framing a debenture to bearer the object is, as far as possible, to 
 endow it with the characteristics of a negotiable instrument, and in 
 particular — 
 
 1. To make it transferable, free from equities, between the company 
 and the person to whom it is issued. 
 
 2. To avoid the necessity for any written assignment. 
 
 ;5. To render the delivery of the debenture and any interest coupon a 
 good discharge to the company. 
 
 4. To enable the bearer to sue the company in his own name. 
 
 5. To ensm'e a good title to any person who ac(|uires the debenture 
 Tjomlfide for valuable consideration, notwithstanding any defect in the 
 title of the person from whom he acquires the debenture. 
 
 Rights of The bearer of a debenture may acquire rights against the company. 
 
 ^^*"* A. As assignee of the original contract. 
 
 B. By virtue of an independent contract between himself and 
 
 the company. 
 
 C. By estoppel. 
 
 As assignee. As to A. Prima facie the bearer of a debenture, expressed to be 
 
 payable to bearer, is (if he be not the original holder of the debenture) 
 regarded as the equitable assignee of the contract contained in it. Li re 
 BlaMij Co., 3 Ch. 154; Re Agra and Masicrman's Co., 2 Ch. 395. 
 Accordingly, as such assignee, he is entitled to the benefit of any 
 valid stipulations in that contract. Xow the following points are well 
 settled — 
 
 {a.) A stipulation that a debenture shall be transferable free from 
 equities is valid. 
 
 " I am of opinion that there is nothing inequitable in allowing the 
 debtor in an obligation to contract with his creditor that he will not 
 avail himself of such equities." Per Rolt, L. J., In re Blakely Ordnance 
 Co., 3 Ch. 159. And, again — 
 
 " Generally speaking, a chose in action assignable only in equity must 
 be assigned subject to the equities existing between the original parties 
 to the contract ; but this is a rule -which must yield when it appears 
 from the nature or terms of the contract that it must have been intended 
 to be assignable fi*ee from and unaffected by such equities." Per Cairns, 
 Ij. J., P/i re Agra and Master man's Bank, ex j^arte Asiatic Banhing Cor- 
 foraiion, 2 Ch. 397. 
 
 And it appears that such stipulation will probably be implied fi'om the 
 mere feet that the del)enture is "to bearer." See In re Blalrcty Ordnance 
 Co., ubi si'pra, and Natal Investment Co., 3 C. 301. But in such case 
 the debenture should be simply " to bearer," not " to A., his executors, 
 administrators, or assigns, or to the bearer " ; for the additional words 
 may be held to neutralise the force of the words "to bearer." Natal 
 Investment Co., 3 Ch. 355. See In re Imperial Land Co. of Marseilles, 
 ex parte Colhorne and Strawhridge, 11 Eq. 487.
 
 INTEODUCTOEY NOTES. 251 
 
 (/;.) A stipulation tliat company will pay the beaver without requiring 
 him to produce any assignment in writing is Talid. 
 
 " I am of opinion tliat there is nothing inequitable in allowing the 
 ilebtor, in an obligation, to contract with his creditor that he will .... 
 pay the amount due on the obligation to the assignee of the creditor 
 (whether he be such assignee by instrument in wi'iting, or by mere 
 delivery of the obligation) . . . ." Per Rolt, L. J., In re BlaJcehj 
 Ordnance Co., ?> C. ISO. And see In re Natal Investment Co., 3 Ch. 355. 
 Lord Cairns said, '• As I understand these words [' or to the holder, for 
 the time being, of this debenture '], they do nothing more than this : in 
 order to save the troul)le and expense of assignments by deed, they pro- 
 vide that the com]^any will recognise any person who holds the debenture 
 to be in as good a position as if he had become the assignee by deed, 
 and will not insist upon his proving his title by producing a formal 
 assigmnent, &c." And Hvjgs v. Assam Tea Co., L. R. 4 Ex. 394. 
 
 ■ (c.) A stipulation that the delivery of the debentnre or any interest 
 coupon shall be a good discharge to the company is valid. Crouch v. 
 Credit Fouier, L. R. 8 Q. B. 385 ; Re Katal Investment Co., 3 Ch. 355, 
 The maxim " Qui sentit commodum sentire debet et onus'" applies. 
 Macdoiiald v. Law Union Co., L. R. 9 Q. B. 328. It must, however, be 
 borne in mind i\vAi i^Timd facie such a stipulation "is not a proviso for 
 the benefit of either the assignee or the holder of the debenture : it is a 
 proviso for the benefit of the company itself, in order to absolve the 
 company from the burden of having to look into the title of any person 
 who might present the delienture to them for pajinent. It does not 
 oblige them to pay to the person who presents the debenture, it merely 
 absolves them from subsequent lialnlity if they do, in point of fact, pay 
 to the person who presents the debenture." Per Lord Cairns, L. C, In 
 re Natal Investment Co., uM supra. 
 
 ■ (cl.) That the bearer, as equitable assignee of the contract, can sue in 
 his own name. Re Blakcly Ordnance Co. ; Re Natal Investment Co. ; 
 and Re Agra and Masternmn's Bank, uM sujjra. 
 
 (e.) It is not competent to the parties to the original contract by any 
 stipulation l3etween them contained therein to ensure the title of a bona 
 fide holder for value who claims through a person whose title is defective. 
 Crouch V. Credit Fonder, L. R. 8 Q. B. 375. Nevertheless, as appears 
 below, this advantage can be secured to the holder by independent 
 contract. 
 
 • As to B. It appears that a debenture holder may acquire rights independent 
 against the company by virtue of an independent contract, which will conti-act. 
 -arise upon his acting on the faith of the representations contained in the 
 debentm-e. For, where a party makes a representation to all the world 
 that he will do or aljstain from doing something, with the intention 
 that such representations shall be acted on, there will be a binding 
 contract between such party aud any person who acts accordingly. See 
 In re Agra and 3[aster7nan' s Bank, 2 Ch. 397 ; In re Imperial Land Co., 
 11 Eq. 487.; General Estates Co., 3 Ch. 7C2 ; Re Merchants'' Banking
 
 9^0 
 
 DEBENTURES. 
 
 Estoppel. 
 
 Goodwin v. 
 Jiobarts. 
 
 Co., 5 C D. 21G. And it appears from these cases that a debenture 
 expressed to be payable to bearer probably amounts to such a representa- 
 tion, and affords evidence of the company's intention that the repre- 
 sentation shall be acted on. But see Crouch v. Credit Fonder, L. R. 
 8 Q. B. o74-, where this point was not taken. Having regard to the 
 case last mentioned, and in order to preclude doubt, it is usual to insert 
 some further words in a debenture expressly addressed to all the world ; 
 e.g., "all persons may act accordingly." See infra, p. 2G7. 
 
 As to the addition of these words, see Re Agra and Masferinan's Banlc, 
 vM supra, where [A.] had addressed a letter of credit to [B.], which 
 contained the words, " parties negotiating bills under it are requested 
 to indorse particulars on the back hereof ;" and it was considered these 
 words w'ere obviously addressed to the persons negotiating bills, that 
 they were " intended by the writers to be used as an inducement to 
 make persons take those bills," that it amounted to " a general invita- 
 tion by [A.] to all persons to whom the letters may be shown to take 
 bills drawn by [B.] or [A.] with reference to the letter, and to alter, 
 their position by paying for such bills, with an assurance that if they or 
 any of them will do so, [A.] will accept such bills on presentation. 
 If it be necessary to determine the question of the legal liability of [A.] 
 I [Cairns, L. J.] am of opinion that upon the offer in this letter being 
 accepted and acted upon by [C], there was constituted a valid and 
 binding legal contract against [A.] in favour of [C]. The cases as to 
 the offer of rewards, of which the case of Wi/Iianis v. Carwardine, 
 (4 B. & Ad. ()21), is an example .... appear to me to be sufficient 
 authority to show that there may be privity of contract in such case." 
 Per Cairns, L. J. 
 
 Of course if an independent contract exists, the bearer is entitled to 
 the full benefit thereof; and it appears from the extract from Lord 
 Cairns's judgment, in Goodwin v. Robarts, below given, that his title 
 may be good, even against a former holder, from whom the instrument 
 has been stolen. 
 
 As to C, viz., Estoppel. It is well settled that a person making a 
 representation with .the intention that it shall be acted upon is estopped 
 fi'om denying its truth as against any person acting on it. The leading- 
 cases in point are Piclcard v. Sears, Adol. & El. 4(59 ; Freeman v. 
 Coolce., 2 Ex. (;54 ; 18 L. J. Ex. 114 ; In re Bahia cj- San Francisco Ry. 
 Co., L. R. ?, Q. B. r)!)4 ; Wehhx. Heme Bag Corns., L. R. 5 Q. B. G42 ; 
 In re Agra and Mastermcuis Bank, 2 Ch. 39G ; Goodwin v. Roharfs, 1 App. 
 Cas. 47G. 
 
 In the case last mentioned, scrip of a Russian loan had been pur- 
 chased by the plaiiitiff, and left in the hands of his broker, who had 
 wrongfully pledged the same to the defendants. The defendants had 
 sold it, and the plaintiff brought his action for the proceeds. The scrip 
 was, so far as material, as follows : " Received the sum of 20/., being 
 the tirst instalment of 20 per cent, upon lOOl. stock, and on payment of 
 the remaining instalments the bearer will be entitled to rqceive a defi-
 
 IXTRODUCTOEY NOTES. 253 
 
 iiitive boud for 100/." The defence was that the scrip was uegotiablc 
 by mercantile usage, and that the defendants had taken it lond fide for 
 Tahiable consideration. Judgment was given for the defendant by the 
 Exchequer Chamber, L. E,. 10 Ex. 337 (affirming the judgment of the 
 Court of Exchequer), on the ground that the scrip had in fact become 
 negotiable by mercantile usage and custom : and the House of Lords 
 affirmed this decision. Lord Cairns's judgment in the House of Lords 
 contained the following passage : — 
 
 " The question argued in the courts below was the negotiahility of the scrip Jiulgment of 
 of a foreign loan, like that in the jjresent case ; but there ap^jears to me to be a •^°'"'^^ tau-ns. 
 prior consideration as to the title of the plaintiff which would alone be suffi- 
 cient to disj)Ose of his claim. The plaintiff bought in the market scrip which, 
 from the form in which it was prepared, virtually represented that the paper 
 ■would pass from hand to hand by delivery only, and that any one who became 
 hondjide the holder might claim for his own benefit the fulfilment of its terms 
 from the for.eign government. The appellant might have kept this scrip in his 
 own possession, and if he had done so, no question like the present could have 
 arisen. He preferred, however, to place it in the possession, and under the 
 control, of his broker or agent, and although it is stated that it remained in 
 the agent's hands for disposal or to be exchanged for Vjonds when issued, as the 
 ai^pellant should direct, those into whose hands the scrip would come would 
 know nothing of the title of the appellant, or of any private instructions he 
 might have given to his agent. The scrip itself would be a representation to 
 any one taking it — a representation which the appellant must be taken to have 
 laade, or to have been a party to — that, if this scrip were taken in good faith, 
 and for value, the person taking it would stand to all intents and purposes in 
 the place of the previous holder. Let it be assumed for the moment that the 
 instriunent was not negotiable, that no right of action was transferred by the 
 delivery ; and that no legal claim could be made by the taker in his own name 
 against the foreign government ; still the appellant is in the position of a per- 
 son who had made a representation in the face of his scrip, that it would pass 
 ■with a good title to any one taking it in good faith and for value, and who had 
 put it in the power of his agent to hand over the scrip with this representation 
 to those who are induced to alter their position on the faith of the representa- 
 tions so made. My Lords, I am of opinion that, on doctrines well established, 
 of which Pickard v. Sears [6 Ad. & E. 469, p. 471] might be taken as an 
 example, the appellant cannot be allowed to defeat the title which the respon- 
 dents have thus acquired. . . ." 
 
 The doctrine of estoppel was referred to by Lord Selborne, in 
 Burkinslicm' v. Nicliolh, 3 App. Cas. 102G. 
 
 " Now sometimes there is a degree of odivim throwai upon the doctrine of 
 estoppel because the same word is used occasionally in a very technical sense, 
 and the doctrine of estoppel in pais has even been thought to deserve some of 
 the odium of the more technical classes of homologation. But the moment the 
 doctrine is looked at in its true light it will be found to be a most equitable 
 one, and one without which, in fact, the law of the country could not be satis- 
 factorily administered. When a person makes to another the representation, 
 ' I take upon myself to say such and s\ich things do exist, and you may act 
 ■upon the basis that they do exist,' and the other man does really act upon that 
 basis, it seems to me it is of the very essence of jiistice that between those two 
 parties their rights should be regulated, not by the real state of the facts, but 
 by that conventional state of facts which the two parties agree to make the 
 basis of their action, and that is what I apprehend is meant by estoppel in pais.
 
 254 
 
 DEBENTUEES. 
 
 01" homologation. But whether the term be used in its more or less technical 
 sense, I take it that one common idea runs thi'ough the whole, namely, that 
 your rights as between yourselves must be regulated upon the basis that that 
 is accurate which you induced the other side to take as the basis upon which he 
 was to act." 
 
 It appears, however, that the doctrine of estoppel only applies to a 
 representation of an existing fact, and is not apjolicable to representa- 
 tions of intention, which, however, may amount to a contract. Alderson 
 V. Maildison, 5 Ex. D. 203 ; 8 App. Gas. 4G7. Accordingly, it cannot 
 in general be made much use of in a debenture. 
 
 But a statement in a debenture that it is transferable, free fi'om 
 equities, is a statement of fact. Romford Canal, 24 C. D. 85. And it 
 would seem that a statement that "this del)enture is transferable by 
 delivery," is a statement of fact, although, no doubt, it involves a con- 
 clusion of law ; for " when you state that as a fact, which no doubt 
 involves, as most facts do, a conclusion of law, that is still a statement 
 of fact, and not a statement of law." Per Jessel, M. R. ; EngJefieJd v. 
 Marquis of Londondemj, 4 C. 1). 698. 
 
 It wih be borne in mind that a representation may be sufficient to 
 give rise to an estoppel, though not express. See Goodwin v. RoharfSy 
 uhi stipra ; and the cases collected in Smith, L. C, vol. ii., 869. 
 
 AVhen a company issues a debenture which represents, expressly or 
 impliedly, that it is transferable free from equities, any person Avho acts 
 on that representation is entitled to the full benefit of the estoppel, e.g.^ 
 a person who buys or advances money on deposit of the debenture 
 can prove for the full amount irrespective of what he paid or advanced. 
 See In re Imperial Land Co., 11 Eq. 487. Query whether Romford 
 Canal Co., 24 C. D. 85, can on this point be supported. Surely, if there 
 be an estoppel, it is wholly immaterial that the party entitled to rely 
 thereon has acquired only an equitable interest. 
 
 Whether 
 debentnre to 
 bearer may 
 not be held 
 negotiable by 
 law merchant. 
 
 From ^vhat has been said it appears that a debenture under seal can 
 l)c so framed that many of the most valuable incidents of a negotiable 
 instrument will be annexed to it. 
 
 As to whether a debenture to bearer, under seal or otherwise, may not 
 be held to ha\'e become a negotiable instrument by the law merchant, 
 see Goodwin v. Robarfs, L. R. 10 Ex. 337 ; S. C. 1 App. Cas. 476 ; 
 Rumhall v. Mei ropoliian Rank, 2 Q. B. D. 124 ; Merchant Hanluuj Co. 
 V. Plmnix Co., 5 C. D. 205. It is a matter of notoriety that debentures 
 expressed to be payable to bearer, are now generally treated as negotiable, 
 and that they are every day bought and sold as such on the various stock 
 exchanges, and this being so, the day may be at hand when their 
 negotiability will be settled by judicial decision. In the meantime the 
 usual clauses, infra, p. 266, should be inserted, for although, if the 
 instrument is in fact negotial)le, these clauses may be implied by law, 
 their presence will not prevent the instrument from being held negotiable, 
 since e.ipressio coriim qim iacite insvnf nihil opieratur.
 
 IXTRODLTTOEY NOTES. 255 
 
 In some cases it is deemed expedient to make dcbcntm-es payable to "Registered 
 the registered holder [^infra, p. 272]. One reason for adopting this form ^'''" '^'^®^' 
 is that trustees are more likely to invest in such securities than in 
 debentures to bearer. Moreover, there are many investors who do not 
 like to hold secm-ities to bearer lest they should be lost or stolen. 
 
 It has quite recently become usual to issue debentures to bearer Debentures 
 capable of l)eing registered at any time. See Form 211, infra. capable of 
 
 The advantages of such a form of debenture are considerable, for registration, 
 whilst those who want a security transferable by delivery have it, those 
 like trustees or others who do not like such a security can register, and 
 thereby obtain full protection. 
 
 In framing a debenture ]iayable to the registered holder it is usual to Usual clauses, 
 insert various provisions for the benefit of the company and of the 
 holder, and in particular to provide that the holder shall be entitled free 
 from equities, between the company and any f(jrmer holder, that his 
 receipt shall be a good discharge to the company, that a register shall be 
 kept, that all transfers must be registered, that no trusts shall be entered 
 in the register, and that the company shall not be bound to take notice 
 of equities. 
 
 The chief object of these provisions is (ji.) to render the debenture 
 transferable by a simj^le and convenient i^rocess, {!).) to enable persons to 
 deal with the debenture without going behind the register, and without 
 fear of equities being subsequently set up by the company, (r.) to enable 
 the company to look to the register alone, without being obliged (in the 
 absence of legal proceedings) to attend to notice of assignment and 
 claims by outsiders. 
 
 Sometimes debentures are so framed that the principal monies shall Registered 
 be payable to the registered holder, while the interest is payable to the ^vith^coupons 
 bearer of coupons annexed. The chief reason for using this form is, 
 that many persons who are unwilling to invest in a secui'ity payable to 
 bearers have no objection, or prefer to have the interest made payal^le 
 by coupon to bearer. Such an arrangement facilitates the payment and 
 collection of the interest, and at the same time does not expose the 
 debenture holder to any material risk. But debentures to bearer capal)le 
 of registration with coupons annexed are becoming the favourite security. 
 
 There are three kinds of mortgage debentures in general use : .Mortgage 
 
 1. Mortgage debentures secured by a trust deed. See p. 2GS. debentures. 
 
 2. Mortgage _de})eutures - secured l)y a charge therein contained. 
 See p. 2U. 
 
 3. Mortgage debentures secured in part by a trust deed, and in part 
 l)y a charge in the debentures contained. See p. 2(jr). 
 
 The trust or covering deed above referred to usually contains a con- Trust deed, 
 veyance or assignment to trustees of all or some part of the company's 
 property upon trust to permit the company to carry on its business 
 therewith until default is made in payment of some principal or interest 
 due to a del^enture holder, and then to enter and sell the property, 
 and out of the net proceeds to pay off the debentures and hold the
 
 256 
 
 DEBENTUEES. 
 
 Advantages 
 trust deed. 
 
 of 
 
 SJiips. 
 
 Patents. 
 
 Foreign 
 l)ropert3^ 
 
 surplus, if any, iu trust for the company. The deed generally contains 
 power for the trustees, after entry and till sale, to carry on the business 
 of the company and divers other powers and provisions for the benefit 
 of the debenture holders. Bee infra, Form 227. 
 
 Debentures secured by such a trust deed have some advantages over 
 those not so secured ; for, of course, the trustees having the legal title 
 to the property can in case of default enter and sell, &c., without seeking 
 the aid of the Court, whereas the only mode of enforcing the charge 
 contained in a delieiiture not secured by a trust deed is Ijy action. 
 Since the Bills of Sale Act, 1882, mortgage debentures of Class 3 have 
 l)ecome very common. 
 
 When ships are to be charged, a trust deed is sometimes considered 
 necessary. In such case the ships can be transferred to the trustees 
 absolutely under section hb of the IMerchant Shipping Act, ISoi (17 & 
 18 Vict. c. 104), or they can be mortgaged to the trustees under the 
 same Act. In either case the instruments of transfer or mortgage must 
 be in the statutory forms duly registered, and the trusts will be declared 
 by a separate deed. It must be borne in mind that, if the ships are 
 transferred to the trustees, they incur the serious responsibilities 
 attaching to ownership. See supra, p. loi. To obviate this objection 
 it may sometimes be deemed expedient to form a small company to act 
 as trustee. But a valid equitable charge on ships can be eflFected 
 without any registered security. In re Panama Co., 5 Ch. 318, infra, 
 p. 259. And accordingly the trust deed may, if thought fit, be framed 
 as a covenant that the ships shall stand charged, or a trust deed can be 
 dispensed with, and the charge can be inserted in the debentures {infra, 
 Form 204). If either of these plans is adopted, the company can give a 
 good title to a purchaser or mortgagee, notwithstanding notice of the 
 debentures. This, however, is sometimes not considered objectionable, 
 it being intended that the debentures shall be a floating security. 
 
 A trust deed may be desirable where debentures are to be charged on 
 letters patent. And a trust deed is sometimes deemed necessary where 
 debentures are to be charged upon real property situate abroad, for the 
 right to the possession of land must be determined by the lex situs. 
 Whether the property should be actually vested in the trustees or not, 
 must depend on the circumstances. In some countries trusts are not 
 recognised, and accordingly difficulties arise if land is vested in trustees, 
 e.g., taxes in the nature of succession duty may become payable ; more- 
 over, in some countries, aliens are not permitted to hold land, and yet 
 objection is felt to appointing foreign trustees for debenture holders. 
 Sometimes it is deemed expedient to get the company or its nominee 
 registered as the proprietor of the land, and then to take a registered 
 charge to trustees for a sum sufficient to secure the debentures ; or, 
 when the local laws permit, to register a deed charging the land with 
 the payment of the debentures. 
 
 However, land situate abroad, but belonging to a company registered 
 here, can in most cases be eflectually charged in favour of debenture
 
 INTRODUCTOEY NOTES. 
 
 holders or their trustees, Avithout regard to the formalities required by the 
 local law in relation to transfers or mortgages. For it was settled long 
 since that the Court of Chancery, by virtue of its jurisdiction in personam, 
 would, as between persons resident here, enforce equities in regard to 
 foreign land. Penn v. Lord Baltimore, Tudor, L. C. Eq. 92G, Westlake 
 (1880), 183. 
 
 Moreover, in determining Avhether there was an equity subsisting 
 between the parties, the Court regarded English law exclusively ; and if 
 according to that law there was an equity, the Court would enforce it 
 although the equity was not recognised by the lex situs. Thus in e.v 
 parte Fotlard, 4 Deac. 27, a contract for security on land in Scotland, in 
 terms which, according to English law, created an equitable charge 
 thereon, was enforced here as against the debtor's assignees in bank- 
 ruptcy, as representing his person, although by Scotch law the contract 
 created no lien or charge on the land. In that case Lord Cottenham, C, 
 said that : " If indeed the law of the country Avhere the land is situate 
 should not permit, or not enable, the defendant to do what the Court 
 here might think it ought to decree, it would be useless and mijust to 
 direct him to do the act ; but when there is no such impediment, the 
 Courts of this country, in the exercise of their jurisdiction over contracts 
 made here, or in administering equities between parties residing here, 
 act upon their own rules, and are not influenced by any consideration of 
 what the eflect of such contracts might be in the country where the 
 lands are situate, or of the manner in which the Courts of such coun- 
 tries might deal with such equities." See also ex p)arte HoltJtausen, 9 Ch. 
 722 ; and the cases cited in Westlake (1880), p. 183 ; and Coote v. Jechs, 
 13 Eq. 597, as to chattels. 
 
 The jurisdiction of the Court of Chancery is now vested in the High 
 Court, and it therefore seems clear that if a company registered here 
 covenants or puiq^orts to convey foreign land to trustees for debenture 
 holders, or purports to charge it by the debentures or otherwise, or 
 covenants that it shall stand charged in favour of debenture holders, the 
 Court will, if occasion arises, enforce the equity just as if the land were 
 in England ; and consequently, unless the local law forbids, will compel 
 the company to convey the land so as to give effect to the relief 
 decreed. See Holroyd v. Marshall, 10 H. L. C. 191. 
 
 And in accordance with the principles above referred to relief has in 
 several cases been granted here to the holders of debentures charged on 
 foreign land. See " Orders," infra. 
 
 It must, however, be borne in mind that if land situate abroad is 
 charged with debentures otherwise than in accordance with the lex situs, 
 the debenture holders may find their charge postponed or ousted by a 
 purchaser or mortgagee who has complied with the lex situs. In re 
 Florence Land Co., 10 0. Div. 530. 
 
 But this is a risk which in many cases the parties are contented to 
 run ; the principal object being to give the debenture holders a prefer- 
 
 s 
 
 257
 
 258 
 
 DEBENTUEES. 
 
 Special care for 
 trust deed. 
 
 Determinable 
 and perpetual 
 debentures. 
 
 Pari passu 
 clause. 
 
 Floating 
 security. 
 
 ence over the general creditors of the company, and iiot to fetter 
 the company in dealing with its property. 
 
 A trust deed of some kind {infra, p. 283] may also be requisite where 
 debenture holders are to have the option of exchanging their debentures 
 {e.g., debentures to bearer for registered debentures, and vice versa), 
 see infra, Form 212. And also where it is desired to give power to call 
 meetings of debenture holders. See infra. Form 227, Schedule 5, 
 
 A trust deed is not open to objection on the ground that it comprises 
 the whole of the company's property. See Form 349, infra. 
 
 Most debentures are made payable at the expiration of a term of years, 
 or after being drawn for redemption, or after notice to pay off ; but of 
 late it has become very common to issue what are called " perpetual de- 
 bentures." These debentures are usually made payable only in the event 
 of winding-up or default by the company in paying the interest. See 
 infra, p. 273. Clear expressions must be used, in order so to limit the 
 right of repayment, for as was said by Giffard, V.-C, in Hoplcins v. 
 Worcester Canal, G Eq. 445, " in every loan transaction in some shape or 
 other, unless a contract has been come to the other way, there must be 
 an implied right to be repaid. That is the meaning of a loan . . . 
 I take it that Tsdiere a person lends his money, if he is not ever to have 
 his principal paid back, you must have something very definite and clear, 
 showing that that is a condition of the contract." 
 
 It is usual to provide that the mortgage debentures shall all rank 
 2KLri passu in point of charge. A declaration to this effect is inserted in 
 the debentures, and any trust deed will be framed accordingly. 
 
 The object of the declaration is to place all the debenture holders on a 
 level. In its absence they would rank according to date of issue, which 
 might give rise to serious disputes and complications. In re Florence 
 Land Co., 10 C. Div. 530 ; Neiv Clydach Co., G Eq. 514. 
 
 When "all the property" or "all the property present and future " is 
 charged by the debentures the Court will endeavour to construe the 
 instruments as creating a floating security. Re Florence Land Co., 10 
 C. Div. 530 ; Re Colonial Trusts, 15 C. D. 473. A floating security 
 constitutes a valid equitable charge on the property for the time being 
 of the company, and attaches finally on the appointment of a receiver or 
 a winding up, the company in the meantime being at liberty to deal with 
 its assets by way of sale, lease, or otherwise, as may seem expedient in 
 the ordinary course of its lousiness. See the above cases, and Hodson v. 
 Tea Co., 10 C. D. 859 ; Hamilton s Windsor Ironworks, 12 C. D. 707 ; 
 Moor V. Anglo-Italian Banlc, 10 C. D. G81 ; and Form 332, ct seq., infra. 
 
 And it is no objection that the charge Avill affect the debenture 
 monies. Re Florence Land Co., uM supra; HauxiveU v. Hemingrosy, 
 23 C. Div. G2G. It was formerly the custom where debentures were 
 made a charge on the assets for the time being expressly to declare that 
 the charge was not to prevent the company from dealing with its pro- 
 perty in the ordinary course of its business until default or winding up, 
 but the Court very readily implies the power, and accordingly it is now
 
 INTRODUCTOEY NOTES. ■ 259 
 
 usual merely to say that the charge is to be a " floating security " or 
 charge. This clearly implies pou'er to deal with the assets, and even to 
 make specific charges thereon, for " it would be a monstrous thing to 
 hold that the floating security prevented the making of specific cliarges 
 or specific alienations of property, l)ecause it would destroy the very 
 object for which the money was borrowed, namely, the carrying on of 
 the business of the company." Per Jessel, ]\L R., Re Colonial Trusts, 
 15 C. D. 472. See also the above cases, and compare with National Bank 
 V. Hamijson, 5 Q. B. Div. 177 ; Taylor v. McKeand, 5 C. P. Div. 358. 
 
 The validity in equity of a general charge on all a company's pro- Validity of 
 perty, present and future, is now settled beyond dispute by a long series ^^^^^^ '^ ^^se- 
 of cases. See Panama Co., 5 Ch. 318 ; Florence Land Co., 10 C. Div. 
 530 ; Colonial Trusts, 15 C. D.473 ; General South Ameriraii Co., 2 C. 
 D. 337 ; and Forms 349, et seq., and 562, 503, infra. Accordhigly it is 
 clear that such a charge must be sufficiently specific within the meaning 
 of Holroyd v. Marsliall, 10 H. L. C. 191, for otherwise it would be in- 
 operative as regards after-acquired chattels. And this is in accordance 
 with the cases in equity in which specific performance of covenants to 
 settle all after-acquired property of the settlor has been enforced. Lewis 
 V. Maddoclcs, 8 Ves. 150 ; S. C, 17 Yes. 48 ; Hardy v. Green, 12 Beav. 
 182. Belding v. Read, 3 H. & C. 955 ; 34 L. J. Ch. 212 ; 13 W. R. 
 8G7, a common law case, in which it was held that an assignment by 
 way of mortgage of all the assignor's furniture and effects present and 
 future upon certain premises " or elsewhere in the kingdom of Great 
 Britain " was not operative in equity, must be taken to be overruled, and 
 query whether In re Count D'Epineuil, 20 C. D. 758, which followed 
 that case (none of the other authorities being cited), can be supported. 
 See also Grcenhirt v. Smee, 35 L. T. 108, and Clements v. Matthews, 
 11 Q. B. Div. 808. 
 
 As TO THE Power to issue Debentures : 
 
 First, as to the power of a company. Company's 
 
 This must depend upon whether the company has power (1) to borrow vo'^^t^ to issue 
 and, if it is proposed to issue mortgage debentm-es, (2) to mortgage. 
 
 With regard to the power to borrow, the memorandum very commonly 
 contains express power, and, if so, no doubt can exist ; but, even where 
 this is not the case, the nature of the business of the company, and the 
 general words contained in the memorandum are usually sufficient to 
 imply a power as to this. See further, supra, p. 83. 
 
 A power to mortgage its property is also very commonly inserted in 
 the memorandum, but this too may arise by implication. Thus In re 
 Patent File Co., 6 C. 85, Mellish, L. J., said : " It was argued that no 
 company can mortgage unless expressly authorised to do so. Now the 
 company has property which it is authorised to deal with, and I should 
 say that the true rule is just the contrary : namely, that a company can 
 mortgage unless expressly prohibited from doing so. The 43rd section. 
 
 s 2
 
 280 DEBENTUEES. 
 
 of the Act appears to recognise the creation of mortgages as an ordinary- 
 incident to a company." See further as to this sujrra, p. 132. 
 
 If the debentures are to be to bearer, the further question arises, 
 whether the company has power to issue negotiable or qi/asi negotiable 
 instruments, for the Companies Act, 18G2, does not confer on all com- 
 panies registered under it a power of issuing negotiable instruments. 
 Such a power only exists where, upon a fair construction of the memo- 
 randum of association it was intended to be given. See further as to 
 this, snjjra, p. 86. 
 Power of Next with regard to the power of the directors to issue debentures on 
 
 behalf of the company. This must of course depend on the articles of 
 the company. Express powers are generally given to them [supra, p. 
 132], but general powers are sufficient, siqjra, p. 151. 
 
 A power to raise money upon all or any part of the property of the com- . 
 pany or upon debentures, notwithstanding the alternative form, warrants 
 the issue of mortgage debentures. In re Panama, ^-e., Co., 5 C. 322. 
 
 In some cases the directors only have power to issue debentures with 
 the sanction of a special resolution or of the company in general meet- 
 ing ; and in such cases the necessary sanction ought of course to be 
 obtained, but it does not follow that debentures irregularly issued will be 
 void. Royal British Banh v. Tvrquand, 6 E. & B. 327 ; Irvine v. 
 Union Banh of Australia, 2 App. Cas. oGG ; infra, p. 186. 
 
 It was doubted by Eolt, L. J., In re BlaTcely Ordnance Co., 3 C. 159, 
 whether the mere power of issuing debentures would authorise the 
 directors of a company to issue debentures to be transferable free from 
 equities. He held however that the articles in that case did give such 
 an authority, for they expressly authorised the directors to carry into 
 effect an agreement which provided for the issue by the company of 
 debentures payable to bearer. 
 
 If therefore the articles empowered the directors to issue debentures 
 payable to bearer, it would seem that no question can arise. But even 
 if there be no such power given to the directors, provided that they are 
 empowered to issue debenture bills and notes on behalf of the company, 
 it will not be considered ultra vires on their part to issue debentures to 
 bearer. In re Imperial Land Co. of Marseilles, 11 Eq. 478. See also 
 In re General Estates Co., 3 C. 758 ; In re Marine Mansions, 4 Eq. 609 ; 
 Inns of Court Hotel Co., 6 Eq. 82. 
 
 And at any rate if the company has power to issue debentures, it can 
 by special resolution empower the directors to issue debentm"es trans- 
 ferable free from equities. This seems to follow from the decision in 
 the BlaMij, &c., Co., 3 C. 154. 
 As to charging If mortgage debentures are to be charged upon the uncalled capital 
 imcalled ^^ j.j^g company, it must be seen that the directors have power to do 
 
 this. Generally speaking, calls are to be made at the discretion of the 
 directors ; and unless they are expressly \_svpra, p. 132], or l)y necessary 
 implication, empowered to mortgage the future calls, it will be 'ultra 
 vires to do so.
 
 INTEODUCTOEY NOTES. OQl 
 
 A power to directors to borrow on the security of the " funds or pro- 
 perty " of the company is not sufficient. Stanleifs case, A Be G, & S. 
 '407 ; 33 L. J. N. S., C, 585. Nor is a power "to pledge mortgages or 
 charge the works, hereditaments, plant, property, and effects of the 
 company." tSankey Brook Coal Co., No. 2, 10 Eq. 381 ; nor a powder 
 " to mortgage or charge the property of the company." Bank of South 
 Australia v. Abrahams, 6 P. C. 562. See also King v. Marshall, 
 33 Beav. 5G5 ; Lishmaii's case, 23 L. T. N. S. 750, it seems is not law. 
 See also Bank of South Australia v. Abrahams, 6 P. C. 5G2. 
 
 But where the articles contained power to secure monies borrowed What sufficient 
 *' by mortgaging (inter alia) all or any future calls to be made on all or ^^^ °" ^' 
 any part of the shares of the company," it was held by Jessel, M.R., 
 that a mortgage by the directors of future calls was valid. Fhcmi£ 
 Bessemer Go's case, 44 L. J. N. S. G83. 
 
 What property a debenture purports to charge, is of com'se a question 
 of construction. In re Colonial Trusts Corjwration, 15 C. D. 4G5 ; 
 Norton y. Florence Land Co., 7 C D. 332 ; Anderson v. Butler's Wharf 
 Co., W. K, 1879, 163. 
 
 The company's books will not pass by general words, and queiy 
 whether they can be mortgaged. Clym Tin Works, 47 L. T. 439. 
 
 Debentures may be issued at a discount, where the directors have the Debentures 
 general powers of the company. See In re Anrjlo-Danubian, &c., Co., "i^f dTscmmt! 
 20 Eq. 339 ; In re Regent's Canal Ironworks Co., S C. Div. 43 ; 
 Campbell's case, 4 C. Div. 470. See also supra, p. 152. 
 
 And they may in most cases be issued and deposited as security for Deposit, 
 a loan, with power for the depositee to sell. Begenfs Canal Ironworks, 
 ubi supra ; Re Strand Music Hall, 3 De G. J. & S. 147. 
 
 A debenture purporting to charge personal chattels, as defined l>y Bills of Sale 
 the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), is a bill of sale within ^<=t«- 
 the meaning of that Act ; but it has not been, and is not customary 
 to register such a document as a bill of sale. The effect of a non- 
 registration is to avoid the security on personal chattels as against 
 execution creditors (s. 4), and also as against persons claiming under 
 duly registered bills of sale, even though subsequently given (s. 10). 
 Connellg v. Steer, 7 Q. B. Div. 520. But non-registration or non- 
 compliance with the provisions of the Act does not invalidate the 
 instrument as against the company. Davies v. Goodman, 5 C. P. Div. 
 128 ; nor as against the liquidator. Marine Mansions Co., 4 Eq. GUI ; 
 Asphaltic Wood Co., 49 L. T. 159. Nor has section 10 of the Judicature 
 Act rendered the bankruptcy rules as to order and disposition applicable. 
 Crumlin Viaduct Co., 11 C. D. 755. 
 
 And the Bills of Sale Act, 1882, does not apply to such debentures ; 
 for it expressly provides (s. 17), that "Nothing in this Act shall apply 
 to any debentures issued by any mortgage, loan, or other incorporated 
 company, and secured upon the capital stock, or goods, chattels, and 
 effects of such company." 
 
 Having regard to this section, there seems no ground to contend
 
 262 
 
 DEBENTURES. 
 
 Eegister of 
 mortgages. 
 
 that debeutuves by virtue of the repeal contained in section 15 of the 
 same Act, are liberated from the operation of section 8 of the Act of 
 1878. 
 
 And unless a very liberal interpretation should be placed on this 
 section, it would seem that the Act of 1882 does apply to a debenture 
 trust deed, comprising- chattels ; and accordingly, that if the deed 
 comprise " personal chattels," it must be framed in the statutory form, 
 and duly registered, or else it will ])e void so far as regards such 
 chattels. It would not, however, be convenient so to frame or register 
 the deed ; and, accordingly, it has become the practice since the Act 
 of 1882 not to rely on a trust deed as regards "personal chattels," 
 but to insert an independent charge in the debentures. This plan 
 effectually secures to the debenture holders a floating charge, subject 
 only to the intervention of execution creditors, and enables the com- 
 pany to state that they are a [first] charge on the whole of its assets, 
 present and future. 
 
 By section 48 of the Companies Act, 18G2, it is provided that : — 
 
 " Every limited company under this Act shall keep a register of all mort- 
 gages and charges specifically affecting property of the company, and shall 
 enter in such register, in respect of each mortgage or charge, a short descrip- 
 tion of the property mortgaged or charged, the amount of charge created, and 
 the names of the mortgagees or persons entitled to such charge. If any pro- 
 perty of the company is mortgaged or charged without such entry as aforesaid 
 being made, every director, manager, or other officer of the company, who 
 knowingly or wilfully authorises or permits the omission of such entry, shall 
 incur a penalty not exceeding fifty pounds." 
 
 "When un- 
 registered 
 mortgage de- 
 bentures void. 
 
 Directors may 
 lend, 
 
 and so may 
 membei-s. 
 
 Hence it is necessary where mortgage debentures, secured by a mort- 
 gage to trustees, are issued, duly to register the mortgage, and if there 
 is not a mortgage to trustees, each mortgage debenture ought to be duly 
 registered. 
 
 If a mortgage debenture not duly registered is issued to a director or 
 other officer of the company, it will be invalid as against the creditors 
 of the company in the winding up. Native Iron Ore Co., 2 C. Div. 345. 
 This disability does not apply to members. General Souih American Co.y 
 2 C. Div. 337. And there are cases in which the rule will not be applied. 
 See Re BorowjU of Hachney Co., (! C. Div. 557 ; Re TnternaUonal, &c., 
 Co., G C. Div. 557 ; Re South Durham Co., 11 C. Div. 579. In the 
 case last mentioned the mortgage was made to partners, one only of 
 whom was a director. 
 
 Directors of a company are not under any disability to lend to their 
 company. See cases, supra, p. 131. 
 
 Xor are the members of a company under any such disability. Thus 
 In re General South American Co., 2 C. Div. 314, 72,000?. was raised 
 on mortgage debentures at 18 j^er cent, per annum interest all but 
 4000?. being advanced by members of the company. They were held 
 valid in the winding up, and to give the holders a charge upon all the 
 property of the company, in priority to the general creditors.
 
 INTEODUCTORY NOTES. 268 
 
 "Where there is to be a trust deed to secure debentures, the company's Solicitor's lien. 
 solicitor very commonly acts for the trustees as well as the company. 
 In such case the solicitor waives his lien on any deeds in his jDossessiou 
 relating to the mortgaged property unless it is expressly reserved. In 
 re Snell, G C. D. 105 ; In re Mason v. Taylor, W. E. 1878, 245. 
 
 It has for some time past been usual to make the interest on deben- Coupons, 
 tures payable on presentation of coupons annexed thereto. When the 
 period for jjayment approaches a coupon is detached, and is commonly 
 forwarded for collection through a banker. By this means the pay- 
 ment of the interest is facilitated ; for, however the coupon be framed, 
 it is generally assumed that the bearer is well entitled to the interest 
 therein specified. There is another convenience in having coupons Convenience 
 attached to a debenture, namely, that the holder can, if in want of cash, °^- 
 cut off and sell the coupons, or any of them, or procure the same to be 
 discounted. 
 
 If thought fit the name of the executing director can be signed by As to stamp- 
 means of a stamp. " I see no distinction between using a pen or a "^s signature. 
 pencil and using a stamp, Avhere the impression is put upon the paper 
 by the proper hand of the party signing." Per Bovill, C. J., Bennett v. 
 Brumfitt, L. R. 3 C. P. 31. The law in the United States is the same. 
 Fennington v. Bachr, 48 Cal. 5G5. 
 
 The Stamp Act, 1870 (see Schedule) imposes the following duties on stamps. 
 a mortgage, bond, (Jehenture, or covenant : — Debenture. 
 
 (1.) Being the only, or principal, or primary security for the pay- £, s. d. 
 ment or repayment of money not exceeding 25L . . . . .008 
 Exceeding '2i>l. and not exceeding oQl. , . . . . ..013 
 
 „ 50J. „ lOOJ 2 G 
 
 IDOL „ 150? 3 9 
 
 150L „ 200J 5 
 
 200L „ 250? G 3 
 
 250L „ 300? 7 G 
 
 300? . 
 
 For every 100?. and also any fractional part of 100?. of stich amount 2 G 
 (2.) Being a collateral, or auxiliary, or additional, or substituted 
 security, or by way of further assurance for the above-mentioned pur- 
 pose where the principal or primary security is duly stamped : 
 
 For every lOOJ. and also for any fractional part of 100?. of the 
 
 amount secured OOG 
 
 Accordingly a debenture, where there is not any trust deed, should be 
 stamped as above. An instrument Avhich is called a debenture will be 
 chargeable as such, although it may operate as a promissory note. Re 
 British India Steam Co., 7 Q. B. D. 165. 
 
 A coupon or warrant for interest attached to or issued with any coupons, 
 security is excni]-)ted from stamp duty by the Stamp Act, 1870. See 
 Schedule, under title, " Bill of Exchange," Exemptions. And see also 
 Enthoven v. Hoyle, 13 C. B. 373, from which it appears that, apart from 
 the above exemption, a coupon in the usual form being a mere token, 
 would require no stamp.
 
 DEBENTUEES. 
 
 The 
 
 Co, Limtd. 
 
 Form 211. [Sometimes flic Jieading states tlic ccqntat, hernlcers, and registered office.'] 
 Debentures to Issue of 2000 debentures of £100 each, carrying interest at the rate 
 bearer, kc. of G p. C. p. a. 
 
 Debenture. £100. 
 
 Co, Limtd (hereinafter called the co), "O'ill, on the 
 
 No.—. 
 
 1. The - 
 
 day of \_if any condition for acceleration, add : or on such earlier day 
 
 as the principal monies hhy secured become payable in accordance 
 with the conditions indorsed hereon], pay to the bearer [// debenture to 
 de ccqmdie of registration, add: or when registered to the registered 
 holder] on presentation of this debenture the sum of £100. 
 
 2. The CO will in the meantime pay interest thereon at the rate of 
 
 p. c. p. a. by equal half-yearly paymts on every day of — — and 
 
 • day of [ifcoiqwns to he annexed, add : in accordance with the 
 
 coupons annexed hto] ; [//" the delenture is to contain a charge, add : 
 
 3. The CO hby charges with such, paymts all its ppty, whatsoever and 
 wheresoever, both present and future, including its uncalled capital for 
 the time being]. 
 
 4. This debenture is issued subject to the conditions indorsed hereon. 
 Given under the common seal of the co this day of . 
 
 The common seal of the co was affixed hereto in the 
 presence of — 
 
 Directors, 
 
 Form 211a. 
 
 The 
 
 Debenture No. 
 
 Co, Limtd. 
 Interest coupon No. 
 
 day of , and 
 
 Coupon. For three pounds. Half-year's interest due the - 
 
 payable at the Bank [address'], or at the registered office of the co 
 
 (less income tax). 
 
 SI. , Secretaiy. 
 
 As to Form 211 : — 
 
 Heading. — Very commonly a heading as above is used, 
 of incorporation and other particulars are stated. 
 
 Sometimes the date
 
 FOEMS. 265 
 
 Consideration. — It is not essential to express the consideration in a deben- Form 211a. 
 
 ture, but if in any case it is deemed desirable to do so, the instrument 'vvill com- 
 
 mence as follows : — " In consideration of the sum of lOOL to the above-named 
 company (or to The Company, Limited), paid by , of , the said com- 
 pany will, &c.," or " The Company, Limited, in consideration of 7. 
 
 paid to it by , of , will, &c.," or " For valuable consideration already 
 
 received The Company will, &c." 
 
 Will Pay. — Instead of "will pay," the words "undertakes," "promises," 
 or " binds itself " to pay are sometimes used. Ex parte City Bank, 3 Ch. 153 ; 
 Crouch V. Credit Fancier, L. E. 8 Q. B. 37-i; Norton v. Florence Public Works Co., 
 7 C. Div. 332. 
 
 Interest. — If the bearer should not present the debenture for payment at 
 maturity, interest would not be subsequently payable. Interest would however 
 be payable if the company made default, but not, in the absence of express 
 contract, at a, higher rate than 5 per cent, per annum. In re Roberts, Goodchap 
 V. Roberts, 14 C. Div. 49 ; 28 W. E. 870 ; In re European Central Co., 4 C. Div. 
 33 ; 25 W. E. 92. 
 
 Bearer. — Sometimes debentures are made payable " to A. or to the bearer 
 hereof." As to the validity of a security to bearer, see suj>ro, p. 250, et seq. 
 
 Order. — See Form 218, infra, for debentures to order. 
 
 Registration. — Power to register is now very commonly given, in order to 
 meet the views of trustees and others. See supra, p. 250. 
 
 Coupons are now commonly issued. See condition 2 as to presentation. 
 
 Stamps. — See supra, p. 263. 
 
 Cliarge. — Some persons prefer to enumerate some of the items charged, e.g., 
 "all the collici'ies, mining rights, i^lant, machinery, book-debts, credits and 
 monies of the company, and all other," &c. Sometimes only part of the assets 
 are charged, e.g., "all the property of the company present and future except 
 what is effectually charged by the indenture mentioned in the conditions 
 indorsed hereon," and in that case a clause will be inserted in the conditions 
 referring to the trust deed. See infra, p. 268. This plan is sometimes adopted 
 where it is desired to charge personal chattels in England, inasmuch as the Bills 
 of Sale Act interferes with a charge in the deed. See supra., p. 262, but not 
 uncommonly in such case the debentures purport to charge all the property. 
 As to a charge of uncalled capital, see supra, p. 260. 
 
 Language. — Where a company is likely to find a foreign market for its deben- 
 tures, or a vendor so stipulates, the debentures are printed in several lan- 
 giiages on the same sheet. 
 
 Conditions. — If thought fit the debenture can refer to the conditions as sub- 
 joined, or they may be set out in the body of the debenture. 
 
 The conditions within referred to. 
 
 1. This debeutm-e is one of a series of debentures, each for Form 211b. 
 
 securing the principal sum of 1., issued or about to be issued by the Conditions. 
 
 CO. \_If the dehentures contain a charge, add: The debentures of the sd 
 series are all to rank pari imssu as a [first charge] on the ppty hby 
 charged without any preference or priority one over another, and such 
 charge is to be a floating security, [if desired, add^ but so that the co is 
 not to be at libty to create any mtge or charge [on its freehold and 
 leasehold land] in priority to the sd debentures]. 
 
 It was formerly customary to insert words in explanation of the expression 
 floating security, e. g., " and so that the company in the course of its business, 
 and for the purpose of carrying on the same, may sell, lease, exchange, or 
 otherwise deal with its property for the time being as may seem expedient,"
 
 266 DEBENTUEES. 
 
 Porm 211b. but as the meaning of a floating charge or security is now Avell settled [^supra, 
 ' p. 258] these words are generally omitted. 
 
 A floating security leaves the comi^any at liberty to create specific mortgages, 
 and when it is desired to limit that power, words should be inserted as above. 
 Whether they are operative has not been settled. Sometimes the debentures 
 are to be of various amounts, e.g., "This debenture is one of a series of like 
 debentures for securing principal sums not exceeding £ : each debenture to 
 be for such amount and to be payable at such date as may be agreed." 
 
 Where so arranged, the conditions will provide that " the debentures of the 
 above issue (including this debenture) and the debentures of any subsequent 
 issue containing a similar charge, are all to rank 2}o,>'i pass\i as a floating charge 
 on property charged thereby, but so that the aggregate amount of the principal 
 moneys thereby secured shall not at any one time exceed £, \^or exceed the 
 amount of the uncalled [or of the paid-up] capital for the time being] of the 
 company." Or, as in Form 220. If the debentui-es are to be a first charge, 
 the words " and by way of first chai-ge in such property " can be used, and the 
 debentures can be called First Mortgage Debentures. Eeferenco is sometimes 
 made to an existing prior charge, e. g., " The debentures are to rank j^^ri passu 
 as a second charge on the property, namely, held after such of the mortgage 
 
 debentures issued by the company in the year as shall for the time being 
 
 be outstanding." See Gartside v. Silhstone Co., 21 C. D. 762, as to priority 
 between two classes bearing same date. 
 
 2. Annexed to this debenture are coupons, each providing for the 
 
 paymt of a half-year's interest, and such interest will be payable only on 
 presentation [and delivery] of the coupon referring thereto. 
 
 As to coupons, see supra, p. 263. 
 
 Presentation includes delivery. Bartlett v. Holmes, 13 C. B. 630 ; 22 L. J. 
 C. P. 182. 
 
 3. The principal monies and interest hby secured will be pd without 
 regard to any equities between the co and the original or any interme- 
 diate holder hereof. 
 
 This condition is probably implied by the debenture being " to bearer." 
 {Supra, p. 250) and is very commonly omitted in the case of a debenture to 
 bearer. 
 
 4. If the principal monies hby secured shall become payable before 
 
 the day of , the person presenting this debenture for paymt 
 
 must surrender therewith the coupons representing subsequent interest ; 
 the CO, nevertheless, paying the interest for the fraction of the current 
 half-year. 
 
 5. The delivery to the co of this debenture and of each of the sd 
 coupons, shall be a good discharge for the principal monies and interest 
 therein respively specified, [and the co shall not be bound to inquire into 
 the title of the resjsive bearers of such instrumts, or to take notice of 
 any trust affecting such monies, or be affected by express notice of the 
 right, title, or claim of any other person to such monies or instrumts.] 
 
 [//" there is iiower to register, add .- Nevertheless, when registered the 
 receipt of the registered holder, his exors or adniors, shall alone be a 
 good discharge for such principal monies.] 
 
 It is more convenient to make the delivery of the instrument, rather than
 
 FOEMS. 367 
 
 the receipt of the bearer, a good discharge. Such a condition is unquestionably Form 211b. 
 valid. See sitjjj-a, p. 251. The words in brackets are sometimes omitted. 
 
 G. The CO may at any time give notice by advertisemt in the I'imes 
 and one other London daily newspaper, of its intention to pay off this 
 debenture, and upon the expiration of six calendar months from such 
 notice being given, the principal monies hliy secured shall become pay- 
 able. 
 
 If desired, the words " day of , or day of , which shall 
 
 next hai^pen after the " can be inserted before the word " expiration," so that 
 the principal moneys may become payable on one of the days fixed for payment 
 of interest. In the absence of express power, a mortgagee cannot be compelled 
 to accept payment before maturity. Browne v. Cole, 14 Sim. 427. 
 
 7. The principal monies hby secured shall immediately become pay- 
 able {a). If the CO makes default for a period of six calendar months in 
 the payment of any interest hby secured, and the bearer [or registered 
 holder] hereof, before such interest is pd, l)y notice in writing to the co, 
 calls in such principal monies ; or {h). If an order is made, or an effective 
 resolution is passed for the winding up of the co. 
 
 It is now usual to provide that if default is made in paying the interest for 
 say six months, the principal moneys shall become due, or may (as above) be 
 called in by the debenture holder, and the propriety of inserting some such 
 provision is obvious. There seems no reason why the holder of a debenture, 
 especially if it is not secured by mortgage or charge, should be placed in a 
 worse position than an ordinary mortgagee who has agreed not to call in his 
 loan for a definite period, in which case the agreement is always made condi- 
 tional on the punctual payment of the interest. The above form is better than 
 making the principal payable on default, because it allows the debenture holder, 
 if he thinks fit, to give the company further time. Sometimes less than six 
 months is specified. As regards making the principal payable in the event of 
 a winding up : such a provision is now very common, and while it can do the 
 company no harm, may prevent disputes as to the rights of the debenture 
 holder. Accoi'ding to a recent decision, it only expresses that which the law 
 implies. Hodson v. The Tea Co., 14 C. D. 859 ; 28 W. E. 458. It may here be 
 mentioned that a provision for accelerating the time for payment of the prin- 
 cipal moneys is not a penalty against which eqiiity can relieve. Thompson v. 
 Hudson, L. E. 4. H. L. 1 ; Wallingford v. Mutual Society, 5 App. Cas. GS5. 
 
 8. This debenture is transferable by delivery, [or if the debenture is Transfer. 
 to be capahJe of regisiraUon : Except Avhen registered this debenture is 
 transferable by delivery, but the co will at any time upon the request of 
 
 the bearer (whilst unregistered) register him or his nominee in the 
 register below mentd as the holder of this debenture, and indorse a 
 note of such registration hereon, and the co will also at any time upon the 
 request of the registered holder, his exors or admors, cancel the registra- 
 tion and the note thereof indorsed thereon, and thereupon this debenture 
 will again become transferable by deli^■ery, A fee of 2s. Gd. shall be pd 
 to the CO uj)on every such registration or cancellation. If this clause is 
 inserted, insert also clauses 2, 3, 4, 5, G of Form 210a]. 
 
 9. The bearer for the time being is entled to the full benefit of this 
 debenture, and all persons may act accordingly and shall be deemed to 
 adopt this condition.
 
 268 
 
 DEBENTURES. 
 
 Form 211b. -^ condition as above is very commonly inserted in order to obtain if i^ossible 
 the benefit of the decisions above referred to, pp. 251, 253. If the debenture 
 
 is to be capable of registration, insert the words " or registered holder " after 
 
 "bearer." 
 
 \If there is to be a trust deed, add : — 
 
 10. The holders of the debentures of the al)Ove issue are and will be 
 GJithd pari 2}(^issu to the benefit of and subject to the provisions contd in 
 
 an indi'e dated the • day of , and made between the co of the 
 
 one pt, and A., B., and C. of the other pt [whereby certain ppty of the 
 
 S CO was vested in trustees for securing the paymt of the principal monies 
 ,' and interest payable in respect of the sd debentures]. 
 
 See supra, p. 255, as to trust deeds. 
 
 The words in brackets will be varied according to circumstances. Sometimes 
 they are omitted altogether. Sometimes the nature of the property is stated. 
 
 11. The principal monies and interest hby secured will be pd at 
 The Bank, Limtd, No. — , Street, London, or at the regis- 
 tered office of the co. 
 
 Form 212. 
 
 Power to call 
 for registered 
 debenture 
 instead of 
 debenture 
 to bearer. 
 
 Upon the request in writing of the 1 nearer hereof the co will issue to him 
 a debenture in either of the forms set forth in the second and third schedules 
 to the indre below mcntd. 8uch debenture shall provide for the paymt 
 of the principal monies and interest hby secured and then remaining 
 unpaid, at the times hby fixed for the paymt thereof rcspively. Upon 
 or before such issue this debenture must be surrendered to the co, and 
 the person making such request must pay the expense of stamping the 
 new debenture, and such sum, not exceeding ten shillings, for the 
 expense of issuing the same as the co shall prescribe. 
 
 It is not at all uncommon now, where debentures are secured by a trust deed, 
 besides giving subsci'ibers the option of taking their debentures in one of several 
 forms [^supra, p. 258], to set out the forms in schedules to the trust deed, and 
 insert on each debenture a clause as above. That clause is intended for use 
 where three forms are given. 
 
 Form 213. 
 
 Temporary 
 cancellation. 
 
 The l)earer of this debenture may at any time deposit the same at the 
 
 co's office at in the county of and thereupon the co will cancel 
 
 the same and will issue to the depositor a certificate recording the deposit 
 and cancellation, and the name of the depositor and some other person, 
 and on presentation of such certificate at the co's office in London the 
 CO will issue to the person named in the certificate or his nominee a new 
 debenture, similar to that so deposited, but the stamp duty and the 
 expenses incidental to such issue must be pd by the person to whom the 
 new debenture is issued. 
 
 Occasionally a clause as above is inserted in debentures in order to avoid the 
 dangers incident to transmission from one part of the world to another. Some- 
 times instead of providing for the cancellation of the debenture, the condition 
 provides for an indorsement by the company's local agent to the effect that the 
 debenture is registered to A. B., and declares that its negociability shall be 
 suspended until the person specified in the indorsement attends at the company's 
 office and in the presenee of a director signs his name below the indorsement.
 
 FOEMS. 269 
 
 The uncalled capital hby charged shall he deemed to be exclusively Form 213a. 
 applicable to the redemption of the debentures of the above issue, and Uucalled 
 whenever any pt thereof shall ])e called and pd up the same shall be capital. 
 carried to the credit of the redemption fund and applied in redeeming 
 debentures as hereinafter provided. 
 
 The bearer or registered holder hereof may at any time before the Form 214. 
 
 principal monies hby secured have been pd off direct the co to issue to power to 
 him fully pd up shares in the capital of the co equal in nominal amount exchange for 
 to such principal monies, and in satisfon and discharge thereof, and 
 the co shall, upon the surrender of this debenture, comply with such 
 direction. 
 
 At any time before the day of (if and so long as a sufficient Form 214a. 
 
 number of the preference shares of the co remain unissued) the co will, Power to 
 upon the request in writing of the registered holder hereof and upon the exchange 
 
 • clfiCGUtlirGS 
 
 surrender of this debenture, issue to him of the sd preference shares f^^. gij.^j.g 
 
 tares. 
 
 credited as fully pd up, and will pay to him the interest for the fraction 
 (if any) of the current half-year up to the day of surrender. 
 
 Sometimes it is desired to give debenture holders power to convert their 
 debentures into shares as above. On conversion^ a contract would have to be 
 registered under s. 25 of the Act of 18G7. See supra, pp. 13, 37. 
 
 This is to certify that the paymt of the principal monies and interest Form 215. 
 secured by this debenture in accordance with the tenor thereof is W . + i 
 guaranteed by The Co, Linitd. debenture. 
 
 Given, &c. 
 
 Sometimes a company which desires to raise money by the issue of deben- 
 tures procures some other company to guarantee the principal and interest or 
 the interest thereby secured. The guaranteeing comi)any usually receives a 
 commission for so doing, and takes a mortgage or charge by way of counter 
 security. It must of course be seen that the transaction is intra vires the com- 
 pany. The best mode of giving the guarantee is by a trust deed, by which the 
 guaranteeing company covenants with a trustee for the debenture holders. 
 The guarantee should be confined to debentures upon which a certificate under 
 the seal of the guaranteeing company is jilaced. 
 
 This is to certify that the above debenture is one of the 3,000 like Form 216. 
 
 debentures numbered to inclusive, secured by the indre Trustee's 
 
 therein referred to. certificate. 
 
 > Trustees. 
 
 Occasionally where there is a trust deed the trustees indorse a certificate on 
 the debentures, as above, but this practice is more common in America than 
 here. See the Eailway Companies Securities Act, 18G6.
 
 270 
 
 DEBENTUEES. 
 
 Form 217. 
 
 Debenture 
 to bearer. 
 
 Drawinsrs. 
 
 The clebentiire and coupon will be in the same terms as Form 211. 
 ditions will be as follows : — 
 
 The con- 
 
 The conditions within referred to, &c. 
 
 1. This debenture is one of a series, &c. [Form 211?^, Clause 1. Aiid if 
 ilic tvords in Iraclcets are used, insert after the word " another " the words 
 " save as hereinafter provided."] 
 
 2. One hundred of the sd debentures will be redeemed by the sd co 
 
 on the day of — — , 1 S — , and on each succeeding day of , 
 
 and day of , until the whole of the sd debentures have been 
 
 redeemed or pd ofi". 
 
 The days fixed for redemption are usually the same as those fixed for pay- 
 ment of interest. 
 
 3. The parlar debentures to be redeemed on each occasion will be 
 determined l)y half-yearly drawings, which the sd co will cause to be 
 made at its registered office for the time being. 
 
 4. Such drawings will be made in the presence of a notary public of 
 Loudon not less than twenty-one or more than sixty days before the 
 respive half-yearly days on which the debentures are to be redeemed. 
 
 And the principal monies hby secured shall become payable on the 
 
 day of , or day of , which shall first happen after this 
 
 debenture shall have been drawn for redemption. 
 
 5. Public notice of the day and time fixed for each drawing will be 
 given by the co at least ten days previously, by advertisemt in a London 
 daily newspaper, and the bearer of this debenture will be entled to attend 
 at any such drawing, 
 
 6. Forthwith after each drawing, notice will be given by advertisemt 
 in a London daily newspaper of the numbers of the debentures drawn 
 for redemption. 
 
 7. The numbers of the debentures from time to time drawn will be 
 recorded in a book to be kept for that ppose by the co, and to be open 
 for the inspection of the bearer of this debenture. 
 
 8. If the bearer of this debenture shall so require, the notary public 
 present at any such drawing as afsd shall make a statutory declon as to 
 the result thereof. 
 
 \_Add other conditions as in Form 21 1&, inserting in Ctause 7 the words 
 " (c) for if the co commits a breach of any of these conditions."] 
 
 Since the observations of the Master of the Rolls in Syhes v. Beadon, 11 C. D. 
 170, doubts have been felt whether such a scheme of redemption is not open to 
 objection as amounting to a lottery. But the general opinion appears to be 
 that it is not, even where the debentures are issued at a discount and made 
 redeemable at par, and accordingly the practice of providing for redemption in 
 accordance with the result of periodical drawings continues. And see the 
 observations in Wallingford v. Mutual Society, 5 App. Cas. 658. However, it 
 may be that a scheme of redemption which provided for the payment of a pre- 
 mium to the holders of drawn debentures is open to objection, although even 
 in that case it might be contended that the premium was only a fair compensa- 
 tion for the prospective loss of interest at a high rate. 
 
 If it is desired in any case to make the redemption of debentures contingent
 
 FOEMS. 271 
 
 on the profits of tlie company, the following clauses can be introduced into tlie Form 217. 
 conditions, which will require to be slightly modified. 
 
 1. The said company will, on the 1st day of November, 1884, and on every 
 succeeding 1st day of November, until the whole of the said debentures shall 
 have been redeemed or paid off, apply a sum equal to one moiety of the net 
 profits of the said company, for the year ending on the 30th day of June, imme- 
 diately preceding such 1st day of November, in the redemption at par of so 
 many of the said debentures as such sum shall be sufficient to redeem. 
 
 2. Nevertheless, if, in any such year, the net profits shall be less than L 
 
 there shall not be any drawing or redemption in respect of such year. 
 
 3. The certificate in writing of the auditor or auditors for the time being of 
 the company shall as against the bearer hereof be conclusive evidence as to the 
 amount of the net profits of the company in any year, or of there being none. 
 
 Such a debenture will be in the same terms as Form 211, omitting all refer- Form 218. 
 ence to registration, and substituting the words "to [A. of ], or order," for 
 
 " the bearer." JiJe?*"'"' ^'^ 
 
 The conditions to be as follows : 
 
 1 & -2. [As in Form 21 1&.] 
 
 3. This debenture is (save as herein otherwise provided) to be deemed 
 as regards transfer, transmission, and in all other respects, to possess the 
 incidents of a promissory note originally made payable to the person or 
 persons within named, or order, and all persons may act accordingly. 
 
 4. The CO is to be entled to assume that every indorsemt on this 
 debenture is authentic, and that where any indorsemt purports to be 
 made by some person in a representative character, such person sustained 
 such character when the indorsemt was made and was duly authorised to 
 make the same. 
 
 5. The indorsemt hereof is not to impose any lialiility on the person 
 indorsing the same. 
 
 G. The CO will recognise the person who, having regard to these con- 
 ditions, for the time being appears to be entled to this debenture, as the 
 absolute owner thereof and of the principal moneys thereby secured, and 
 the receipt of such person shall be a good discharge to the co for such 
 principal moneys, and all persons may act accordingly. 
 
 7, H, 9, 10, 11. [As in Form 211?>, and Clauses 3, 4, G, 7, and 11, 
 snhsiitiding in 7 '' Jioldcr'" for " icarcr^^ 
 
 Sometimes debentures are made payable to order, as above. See In re General 
 Estates Co., Ex parte City Bank, 3 Ch. 760 ; Enthoven v. Hoyle, 21 L. J. C. P. 
 100 ; 13 C. B. 373. 
 
 Prior to the Bills of Exchange Act, 1882, there was grave doubt whether an 
 instrument under a company's seal could operate as a promissory note, but that 
 Act provides, in effect (s. 91), that a company's promissory note may be under 
 the common seal. 
 
 Accordingly a debenture containing an unconditional contract to pay " to the 
 bearer," or, " to A., or order," might be held to be a promissory note, and to 
 be negotiable accordingly. Nevertheless there seems to be little probability of 
 such a determination. See British India Steam Co. v. Commissioners of Inland 
 Revenue, 7 Q. B. D. 165, where a " debenture " payable to order, though not 
 under seal, was held to be chargeable with duty as a debenture, and not as a 
 promissory note. In these circumstances it is commonly deemed desirable to 
 insert in a debenture "to order" clauses as above, so as to show the intention, 
 and protect the company.
 
 272 DEBENTUEES. 
 
 Form 219. 1. The Co, Limtd (hereinafter called the co), will, on the ■ 
 
 Registered ^^Y of [oi" on such earlier day as the princii^al monies hhy secured 
 
 debenture. become payable in accordance with the conditions indorsed hereon], pay 
 
 to of or other the registered holder [_suj)ra, p. 255] for the 
 
 time being hereof, the sum of I. 
 
 2. The CO will in the meantime pay to such registered holder interest 
 
 thereon at the rate of p. c. p. a., by half-yearly payments on the 
 
 — — day of , and — — day of , in each year, the first of such 
 
 half-yearly paymts to be made on the day of , next. 
 
 \_If there is io he a charge insert it here.] 
 
 3. This debenture is issued subject to the conditions indorsed hereon. 
 Given, &c. 
 
 Form 219a. The conditions within referred to : 
 
 Conditions. 1- This debenture is one of a series of 200 like debentures issued or 
 
 about to be issued by the co. 
 
 2. A register of the debentures will be kept at the co's registered office, 
 wherein there will be entered the names, addresses, and descriptions of the 
 [i)i incorporaiing this clause in Form 21 1& insert here the word "regis- 
 tered "] holders, and parlars of the debentures held by them respively [and 
 such register will at all reasonable times during business hours be open 
 to the inspection of the registered holder hereof and his leg. per. reps., 
 and any person authorised in writing by him or them]. 
 
 The words in brackets are sometimes omitted. 
 
 3. The registered holder will be regarded as exclusively entled to the 
 benefit of this debenture and all persons may act accordingly, and the 
 CO shall not be bound to enter in the register notice of any trust or to 
 recognise any right in any other person save as herein provided. 
 
 There seems no need to provide for the somewhat remote contingency of 
 lunacy nor for bankruptcy, since the trustee may exercise the right to transfer 
 to the same extent as the bankrupt but for his bankruptcy. Section 50 of the 
 Bankruptcy Act, 1883. 
 
 Apart from express stijiulations a co, by registering a transferee, may be 
 estopped from questioning his title. Higgs v. Northern Assam Tea Co., L. E. 4 
 Ex. 387 ; Webb v. Commissioners of Heme Bay, L. E. 5 Q. B. 642 j Romford Canal 
 Co., 24 C. D. 85. 
 
 4. Every transfer of this debenture [i/i incorporating this in Form 21 1& 
 insert here the words "when registered"] must be in writing under the 
 hand of the registered holder or his leg. per. rep. The transfer must be 
 delivered at the registered office of the co with a fee of 2s. Qd., and such 
 evidence of identity or title as the co may reasonably require, and there- 
 upon the transfer will be registered. 
 
 Sometimes the last i^aragraph of this clause is omitted and the following- 
 inserted : — 
 
 " The transfer shall be made only in the register and shall be signed by the 
 transferor — or, if he is absent, by liis attorney thereunto duly authorised, and
 
 FORMS. 273 
 
 upon every transfer a fee of 2s. 6(L shall be paid to the company, and such Form 219a. 
 evidence of identity or title as the company may reasonably require, must be - ' 
 
 adduced." 
 
 5. In the case of joint registered holders the principal monies and 
 interest hby secured shall be deemed to be owing- to them upon a joint 
 account. 
 
 Having regard to section Gl of the Conveyancing and Law of Property Act, 
 1881, this clause is probably unnecessary. 
 
 6. Xo transfer will be registered during the seven days immediately 
 preceding the days by this debenture fixed for payment of interest. 
 
 7. The principal monies [as in Form 211h, condition 3] and the 
 receipt of the registered holder for such principal monies and interest 
 •shall be a good discharge to the co. 
 
 8. The CO may at any time give notice in wnriting to the registered 
 holder hereof, his exs or ads, of its intention [_Same as Clause G, siqmt. 
 Form 211b]. 
 
 If thought desirable this can be omitted or the following substituted : — 
 
 " At any time after the day of next, (1) the registered holder of 
 
 this debenture may give the company notice in writing to pay off the principal 
 moneys hereby secured, and (2) the company may give the registered holder 
 hereof notice in writing of its intention to pay off such principal moneys. And 
 
 at \_or on the day of , which shall first happen after] the expiration of 
 
 six calendar months from any such notice being given, the principal moneys 
 hereby secured shall become payable." 
 
 Sometimes it is desired to give the debentiu-e holder power to call in the 
 moneys at stated intervals, thus : — " The registered holder for the time being 
 hereof, may, upon giving not less than six calendar months' previous notice in 
 writing to the company, require payment of the principal moneys hereby se- 
 ciu-ed on the 1st day of July in any of the following years, namely, 1885, 1890, 
 and 1895, and such principal moneys shall become payable accordingly." 
 
 1). [Same as Clause 7, sujira, Form 211b, substituting "registered 
 holder " for " bearer."] 
 
 10. [Same as Clause 11, sup-a, Form 211&.] 
 
 11. A notice may be served by the co upon the holder of this deben- 
 ture by sending it through the post in a prepaid letter addressed to such 
 person at his registered address. 
 
 12. Any notice served by post shall be deemed to have been served at 
 the expiration of 24 hours after it is posted, and in proving such 
 service it shall be sufficient to prove that the letter containing the notice 
 was properly addressed and put into the post-office. 
 
 The Co, Limtd. Form 220. 
 
 No. . Perpetual Debenture. /. Perpetual 
 
 1. The Co, Limtd (hereinafter called the co), will, when the -iebentures. 
 
 principal monies hby secured become payable, in accordance with the 
 conditions indorsed hereon, pay to the bearer, or when registered to the 
 
 registered holder of this debenture the sum of 1. 
 
 T
 
 274 DEBENTURES. 
 
 Form 220. Another form sometimes iised is : — " The Company, Limited, being in- 
 
 debted to the person to whom this debenture is issued, in the svim of & upon the 
 
 terms that such sum is to be repayable only in the events and subject as here- 
 inafter expressed, will when, &c." 
 
 2. The CO [interest as in Form 211, adding the, nwds :'] and any 
 further coupons issued in respect of such interest. 
 
 3. The CO hby charges [Form 211]. 
 
 4. This debenture is issued [Form 211]. 
 Given, &c. 
 
 [Add conpo7is and conditions as follows'] : — 
 
 1. This debenture is one of a series of debentures, all bearing- 
 even date. The del)eutures of the sd series, aud the debentures of any 
 subse(iuent series containing a similar charge, are all to rank pari passu 
 in point of charge as a floating security on the ppty charged thereby [if 
 any limit, provide accordingly, sii2)ra, 'note to Condition 1 of Fonn 211]. 
 
 2. Annexed to this debenture are coupons, each providing for a 
 
 half-year's interest [and if so, and also a voucher for fi'esh coupons], and 
 such interest will be payable only on presentation of the coupon referring 
 thereto. After the day of [10 years after date'], and every suc- 
 ceeding period of 10 years the bearer, or if registered the registered 
 holder, on production of this debenture for indorsemt, [or, the bearer of 
 the appropriate voucher will, on presentation thereof] will be entled 
 to the issue of fresh coupons for a further period of 10 years. 
 
 The voucher will be as follows : — " The Company, Limited. Debenture 
 
 No. — . Voucher for fresh coupons to be presented at the office of the company 
 
 [^situation^ on or at any time after the of ," and it will be printed so 
 
 that it can be detached immediately after the last coupon of the series. 
 
 o. The principal monies hhj secured will only become payable [as 
 in Form 211b., Condition 7]. 
 
 [Add clauses, et seq., of Form 211b, modified so as to suit a debenture to 
 hearer callable of Imng registered.] 
 
 Companies freqviently experience inconvenience in providing for the renewal 
 of terminable debentiires, e.g., the money market or the affairs of the comjjany 
 may happen to be temporarily depressed just when a loan to pay off debentures 
 is required. Moreover a lai'ge class of investors require a permanent security, 
 and for that reason dislike terminable debentures. Accordingly a considerable 
 number of companies in good credit have taken to issuing perpetual debentures 
 [and perpetual debenture stock, infra , p. 279,] and the ijublic have invested 
 largely therein. 
 
 Although called "perpetual" the debentui-es are made payable in certain, 
 events (see condition 3) but the meaning is that they may hapj^en to continue 
 for an unlimited period. Some companies which issiie perpetual debentures 
 modify condition 3 by adding the words "or (c) if the company gives six 
 months' notice by advertisement in the Times of its intention to pay off this 
 debenture, but so that in such case a bonus of .£10 shall be paid along with 
 such principal moneys." And in some cases it is desii-able so to provide, e.g., 
 where the issue is to l)e limited in amovmt, for the company might otherwise 
 find its operations inconveniently fettered. In the absence of a jjower to pay 
 off it might be necessary to reconstruct. 
 
 Sec further, supra, p. 258. as to perpetual debentures.
 
 POEMS. 275 
 
 As in Form 211 omittin<j the charge but adding the following conditions to Form 221. 
 211 ^- = Profit or 
 
 1. The principal monies and interest hby secured are to be payable income deben- 
 ouly out of the profits of the co in manner hereinafter provided, 
 
 2. The CO is to apply the net profits made during the financial year 
 or other periods comprised in the accounts, submitted to the ordinary 
 general meeting of the members of the co in each year as follows : — 
 
 First : In paying to the debenture holders of this series ^wr/ 2'^^^^'' 
 all interest then due and payable to them respively in respect of such 
 debentures : 
 
 Secondly : Of the surplus one half may be applied in paying 
 dividends on the share capital of the co or otherwise in such manner as 
 the CO in general meeting shall from time to time determine. 
 
 Thirdly : The other half shall be carried to the credit of the redemp- 
 tion fund to be established as hereinafter provided. 
 
 3. The CO will establish a redemption fund and all monies carried to 
 the credit thereof will be invested in such iuvestmts as the directors 
 think fit, with full power fi'om time to time to vary and to realise the 
 same as occasion may require. And whenever the redemption fund 
 
 amounts to /., the co will apply the same in the redemption at par 
 
 of so many of the debentures as it shall be competent to redeem. The 
 certificate \_sce note to Form 217]. 
 
 4. The parlars, debentures, &c. \_add p-ovisions for drawings, &c., as 
 in Form 217]. 
 
 It is not by any means uncommon to issue debentures paya-ble out of profits 
 only, e. jr., to shareholders or iinsecured creditors upon the reconstruction of 
 an insolvent company, and upon a scheme of arrangement in bankruptcy 
 whereby the assets are made over to a company. See supra, Form 25. 
 
 And sometimes a vendor agrees to accept such debentures in part satisfaction 
 of his purchase-money. If desired the interest is made non-cumulative so that 
 if the profits of any one year are insufficient to pay the interest, there will be 
 no claim on subsequent profits for the deficiency. Occasionally the interest 
 only, and not the principal, is made payable out of profits, e.g., sometimes 
 instead of providing for redemption by means of drawings, provision is made 
 for the payment of dividends thereout to the debenture holders pari passu on 
 account of principal. 
 
 The interest payable out to debentures of the above issue is to be payable 
 only out of the net profits from time to time made by the company, and is to 
 be a first charge on such profits, and the company will not at any time di- 
 vide any profits among its members without first paying all interest then 
 due on the debentures, and providing for the payment of all interest to become 
 due thereon at any time within six calendar months after such division. 
 
 Sometimes when the assets of a company or bankrupt are taken over by a 
 new company debentures are issued to the creditors or others for the amount 
 of their claims, but charged only on the assets so taken over, subject to any 
 prior increase, and without any personal liability being imposed on the new 
 comj)any. In such case the debentures (or a trust deed) provide for the 
 realization of the assets by the new company [e. g., see clauses in Form 
 713, infra'], and for the division from time to time of the net proceeds, 
 less a commission to the new company, among the debenture holders, j^ari 
 passu. Such a scheme is often found attractive, because the creditors get a 
 tangible security of lai'ge nominal amount. 
 
 T 2
 
 176 
 
 DEBENTUEES. 
 
 Form 221. -^ similar sclieme is sometimes adopted where it is desired to acquire the 
 
 securities of a foreign company or government, with a view to some compromise 
 
 or arrangement. 
 
 Form 222. 
 
 Prospectus 
 of issue of 
 debentures. 
 
 The following skeleton prospectus may be found of some use by way of 
 reminder. 
 
 The Co, Limtd. 
 
 Issue of 100,000?. six p. c. debentures of 50/. each, to be paid oft" 
 1st February, 180G. 
 
 [Here f/ie names of the directors and other officers of the com^pany are 
 nsnalJy yiven.'] 
 
 Subscriptions [or applicons] are invited for 100,000/. in six p. c. 
 debentures of 50/. each. These debentures are issued in order to provide 
 funds for, &c. 
 
 The Co [position and jJrosjmcts']. 
 
 The debentures will be issued at par for sums of 50/. each, made pay- 
 able " to bearer " [with power to register at any time], and carrying 
 
 interest from the day of , at the rate of six p. c. p. a., payable 
 
 half-yearly, on the — th of and — th of , at the bankers of the 
 
 CO, upon presentation of coupons annexed to the debentures. 
 
 The terms of subscription for each debenture are as follows : — 
 
 . On applicon 10/. 
 
 Onallotmt 10/. 
 
 On the — th June, 18— 10/. 
 
 On the"— th July, 18— 10/. 
 
 On the — th July, 18— 10/. 
 
 Provisional certificates will be issued on paymt of the amount due on 
 allotmt, and exchanged for definitive debentures on completion of the 
 paymts. 
 
 [For form of certificate, see vfrct, p. 277.] 
 
 Instalmts may be pd in advance, on allotmt, or on any of the above 
 
 dates, under discount at the rate of p. c. p. a. Where no allotmt 
 
 is made the deposit will be returned in full. 
 
 In case a less number of debentures is allotted than is applied for, the 
 excess of the deposit will be applied in or towards paymt of the future 
 instalmts due upon such number as may be allotted. Failure to pay any 
 instalmt when due, will render the allotmt liable to cancellation, and the 
 previous paymts to forfeiture. 
 
 Apphcons in the annexed form should be filled up and sent to the co's 
 
 l)ankers, Messrs. , accompanied by a deposit of 10/. upon each 
 
 debenture applied for. 
 
 The form of debenture can be seen at the office of the co. 
 
 By order of the Board of Directors. 
 
 No. 
 
 Street, London, B.C., January 1st, 1884. 
 
 Secretary. 
 
 [Form of letters of application to be subjoined to prospectus.]
 
 FORMS. 277 
 
 No. Form 222. 
 
 The A. Co, Limtd. 
 
 Issue of 10,000/. six p. c, debeutures. 
 
 To the dh-ectors of the A. Co, Limtd. 
 
 Gentlemen, 
 
 I beg to apply for debentures of the above issue in the terms 
 
 of the prospectus issued by you, dated, &c., on which I have pd the 
 required deposit of 10/. per debenture ; and I undertake to accept the 
 same or any less number you may allot to me, and to make the remain- 
 ing paymts in respect thereof* at the dates specified in thesd prospectus. 
 
 Your obedient servant, 
 
 Names 
 
 Address 
 
 Occupation 
 
 Date 
 
 * If you desire to pay in full on allotment, the wox-ds "the dates specified in 
 the said prospectus " should be strvick out, and the words " on allotment under 
 discount " substituted. 
 
 The following is a provisional certificate in the ordinary form. It is pro- 
 bably a negotiable instrument by the law merchant. Rumball v. Metroiwlitan 
 Bank, 2 Q. B. Div. 19J.. 
 
 The Co, Limtd. Form 223. 
 
 Capital /. Provisional 
 
 Bankers certificate of 
 
 title to deoeD- 
 Offices tures. 
 
 Issue of 10,000/. six p. c. debentures of 50/. each. 
 
 Provisional Certificate. 
 
 No. 
 
 For debentures to be numbered to inclusive. 
 
 This is to certify that the above-named co have received the sum 
 
 of 20/. upon each of the sd debentures, and that on paymt of the 
 
 remaining instalmts as below mentd, the bearer will be entled to 
 receive debentures of the sd issue, each for 50/. 
 
 The remaining instalmts on each debenture are to be pd at the 
 bankers of the co as follows : — 
 
 On the — th June next 10/. per debenture. 
 
 On the — th July next 10/. per debentm-e. 
 
 On the — th July next 10/. per debenture. 
 
 Failure to pay any instalmt when due will render the previous paymts 
 liable to forfeiture.
 
 278 
 Form 223. 
 
 of 
 
 DEBENTURES. 
 
 The remaining iiistalmts may be pd in full under discount at the rate 
 • p. c. p. a. on any day on which an instalmt falls due. 
 
 For the co, 
 
 , Secretary. 
 
 London, 
 
 , Street, E.G., 1st , 1877. 
 
 Annexed to the above certificate, will be receipts for future instalments, as 
 follows : 
 
 Eeceivkd on account of The ^^^ ""■ '^^^^ Company, Li- 
 Company, Limited, the sum of £, , 5^^^ % mited. Amount payable in 
 
 being the instalment due in respect of c^!S> 5 respect of debentures 
 
 the debentures above-mentioned upon ^^^^ s specified in Provisional 
 
 the th June, 18—, J^^ "^ Certificate, No. 
 
 For the 
 
 London, — th , 1883. 
 
 - Bank. 
 -, Cashier. 
 
 
 Paid the th June, 
 
 1883. 
 
 Form 224. 
 
 Prospectus of 
 debenture 
 stock tenders. 
 
 The 
 
 Co, Limtd, Four P. C. Mtge Debenture Stock. 
 
 The directors invite tenders for the unissued balance, about /. of 
 
 the co's debenture stock. This stock bears interest at the rate of — p. 
 
 c. p. a., payable half yearly on the of , and ■ of , in 
 
 each year. The pchase money for the stock will be payable on the 
 
 of , 1884, and the interest will commence on the of . 
 
 The stock \_show 2^ositioii and security']. 
 
 The stock will be allotted in amounts of not less than 100/. to the 
 highest bidders (but no less price than 9G?. for each 100?. stock will be 
 accepted), and the stock will be registered in the names of the applicants 
 or their nominees free of expense. 
 
 Tenders sealed up and marked " Tender for Debenture Stock," must 
 
 be sent to the undersigned at this oi!ice not later than 10 a.m. on 
 
 the of , and may be made in the following form, or if desired, 
 
 printed forms of tender may be obtained on applicon. 
 
 Form of Tender. 
 
 I hby tender for /. 4 p. c. debenture stock of the co, at the 
 
 price of — I. for each 100/. stock, and I undertake to accept the sd stock 
 or any less amount that may be allotted to me, and to pay the pchase 
 
 money to the co's bankers on or before the day of next. 
 
 (Name, address, and description in full.) 
 
 Note. — Letters of allotmt of stock will be sent by post on or before 
 
 , the of , to applicants whose offers are accepted. 
 
 By order, , Secretary. 
 
 Secretary's Offices, , 
 
 , 1884.
 
 FOEMS. 279 
 
 The Co, Limtd. No. . 100,000/. Mtge Debenture Stock, Form 225. 
 
 1883. 
 
 Debenture 
 
 This is to certify that of is the registered [or, the bearer g^te. 
 
 of this certificate is the] hokler of /. of the above mentd stock. The 
 
 redemption of the sd stock and the paymt of the interest thereon is secured 
 by an indre dated, &c., and made, &c. 
 
 The stock is issued subject to the conditions specified in the sd indi'e 
 given, &c. 
 
 Within the List few years a good many companies, registered under the 
 Act of 1862, have taken to raising money by the issue of debenture stock. 
 The stock is sometimes issued on the terms that it is to be redeemed at a 
 fixed date, but is more commonly [sMj3?-a, p. 258] made and called " perpetual." 
 It is usually secured by a trust deed, whereby the company covenants to 
 redeem the stock in due course, and to pay the interest, and generally to 
 observe the conditions on which the stock is issued. And in most cases the 
 deed makes the company's property, or some part of it, a security for the 
 payment of the stock. 
 
 Prior to the Bills of Sale Act, 1882, the deed could be so framed as to make 
 the stock a charge by way of floating security on the whole assets of the 
 company, present and future, including personal [chattels, without any necessity 
 for registration as a bill of sale ; but since that Act came into operation, this 
 can no longer be done, when the company is possessed of personal chattels, 
 subject to the above Act. [See supra, p. 261.] 
 
 Nor can the difficvilty be met, as in the case of debentures, by inserting a 
 charge in the certificate ; for the certificate is not a debenture within the 
 meaning of s. 17 [supra, p. 261] of the Act. 
 
 Accordingly, where it is desired to raise money on the security of a floating 
 charge on the assets, and those assets consist, and are likely to consist to any 
 great extent of personal chattels subject to the Act, debentures (perpetual or 
 terminable), seem preferable to debenture stock. 
 
 If, however, in any such case it should be considered that a secxu-ity, called 
 *'debentui-e stock," would be more; attractive than debentui-es, there would 
 not seem to be any objection to creating a so-called debentiu'e stock, to be 
 represented by debentures instead of certificates ; for in the case of a company 
 registered under the Act of 1862 " debenture stock " has no technical meaning ; 
 and, accordingly, if a company likes to create what it chooses to call a deben- 
 ture stock, and to declare that it shall be represented by debentui-es, there 
 can be no objection to such a course. 
 
 Where this course is adopted, the debentures will be headed — 
 
 " No. . Debenture . 1. 
 
 Forming pt of an issue of 100,000/. First Mtge Debenture Stock." 
 
 or otherwise as the circumstances may require, and the resokitions authorising 
 the issue of the debentures, will purport to create a debenture stock, of the 
 nominal amount of [100,000L], to be represented by debentures in the form 
 which has already been proposed, and is identified ; and the adoption of this 
 com-se removes the difficiilty as to the Bills of Sale Act, 1882, for a charge 
 can be insisted on the debentures by way of fioating security. Supra, p. 262. 
 
 For resolutions as to the creation of debenture stock, see swpra, p. 202. 
 
 Where debenture stock, represented by certificates (not debentures), is to 
 be issued, the following conditions can be adopted, with such modifications as 
 the circumstances require : —
 
 280 
 
 DEBENTUEES. 
 
 Conditions as to the Issue of Debentuke Stock. 
 
 Form 226. 
 
 Redemption. 
 
 Interest. 
 
 Ordinary 
 certificates. 
 
 Fees. 
 
 Registered 
 liokler to be 
 deemed abso- 
 lute owner. 
 
 Sui-vivorship. 
 
 Transfer. 
 
 The following are the conditions upon which the mtge debenture stock of 
 
 - the nominal amount of 100,000L, created by special resolution of The 
 
 Co, Limtd, passed and confirmed at general meetings thereof held respively on. 
 the day of and the day of , will be issued : — 
 
 1. The stock will be redeemed at par on the day of , 1890, upon 
 which day the co will, subject to these conditions, pay to the several holders of 
 the stock, the full nominal amount of their respive shares therein. Such 
 paymts will be made at the registered office of the co. 
 
 2. In the meantime the co will, as from the day of , 18 , pay to 
 the holders of the stock, intei'est on their respive shares therein, at the rate of 
 8 p. c. p. a. Such interest will be i^aid half-yearly, on the day of 
 and day of . The first half-yccirly paymt will be niade on the 
 day of 
 
 3. Every holder of a share in the stock will be entled to a certificate under 
 the seal of the co, stating the amount of the stock held by him. 
 
 4. There shall be pd to the co for every such certificate the sum of Is. 
 
 5. The co will recognise the registered holder of any share of regis- 
 tered stock as the absolute owner thereof, and shall not be bound to take notice 
 or see to the execution of any trust, whether exj)ress, implied, or constructive, 
 to which such share of stock may be subject ; and the receipt of such person 
 for the interest from time to time accruing due in respect thereof, and for any 
 monies payable upon the redemption of the same shall be a good discharge to 
 the CO, notwithstanding any notice it may have, whether express or other- 
 wise, of the right, title, interest, or claim of any other person to or in such 
 share of stock or monies. 
 
 G. In case of the death of any one of the joint holders of any registered stock 
 the survivor will be the only jjerson recognised by the co as having any title to 
 or interest in such stock. The dissolution of a body corporate shall, for the 
 ppose of this clause, be treated as its death. 
 
 7. Every holder of registered stock will be entled to transfer the same or any 
 pt thereof by an instrumt in wi-iting in the form following, and as near thereto 
 as the circes will admit. 
 
 The Co., Limtd. 
 
 I, , of , in conson of the sum of pd to me by , of , do hby 
 
 transfer to the sd (hereinafter called the transferee) 1., of the mtge 
 
 debenture stock of the above-named co standing {_or, pt of the stock standing] 
 in my name in books of the sd co, to hold the same unto the transferee, subject 
 to the several conditions on which I held the same immediately before the exe 
 cution hereof. And I, the transferee, do hby agree to take the sd stock, sub- 
 ject to the same conditions. 
 
 As witness our hands this day of 
 
 Witness 
 
 Execution of 
 transfer. 
 
 Transfer to be 
 left at office, 
 A:c. 
 
 And will 1)0 
 retained. 
 
 Fees on 
 transfer. 
 
 8. Every such instrumt must be executed, both by the transferor and 
 transferee, and the transferor shall be deemed to remain owner of such stock 
 until the name of the transferee is entered in the register (hereinafter mentd) 
 in respect thereof. 
 
 9. Every instrumt of transfer must be left at the registered office of the co 
 for registration, accompanied by the certificate of the stock to be transferred, 
 and such other evidence as the directors may require to jjrove the title of the 
 transferor or his right to transfer the stock. 
 
 10. All instrumts of ti'ansfer which shall be registered will be retained by 
 the CO. 
 
 11. A fee not exceeding 2s. Gd. Avill be charged for the registration of each
 
 FORMS. 
 
 281 
 
 transfer, and must, if required by the directors, be pd before the registration Form 226. 
 of the transfer. 
 
 12. No transfer will be registered during the fourteen days immediately pre- ^'o*i"y register 
 ceding the sd day of and day of in each year. 
 
 13. The exs or ads of a deceased holder of registered stock (not being one of Transmissions. 
 the several joint holders) shall be the only persons recognised by the co as 
 
 having any title to such stock. 
 
 14. Any committee of a lunatic holder of registered stock, or any person Riahts of 
 becoming entled to registered stock in consequence of the death of any holder parents, &c. 
 of such stock, upon pi-oducing such evidence that he sustains the character in 
 
 respect of which he jDroposes to act under this condition, or of his title, as the 
 directors shall think sufficient, may, subject to the preceding conditions as to 
 transfer, transfer such stock. 
 
 15. The directors shall be at liberty to retain the interest payable upon any When interest 
 share of registered stock, in respect of which any person under condition 1 !■ is may be witli- 
 entled to transfer, until such person shall duly transfer the same. held. 
 
 16. Upon the applicon of the holder of a share of registered stock the co will Certificates 
 issue to him a certificate to bearer specifying the share of such stock held by to bearers. 
 him. Every holder of registered stock will be entled at his discretion to seve- 
 ral such certificates, each for a pt of his registered stock. 
 
 17. A certificate to bearer will not be issued, except upon a request in Request to 
 writing, signed by the person for the time being entered in the register, herein- issue, 
 after mentd, as the holder of the stock in respect of which the certificate to 
 
 bearer is to be issued. 
 
 18. The request made must be in'^uch form, and authenticated in such man- Form of. 
 ner as the directors shall from time to time require, and must be lodged at the 
 
 office of the co ; and the certificates then outstanding in resjject of the stock 
 intended to be included in the certificate to bearer must, at the same time, be 
 delivered up to the sd directors to be cancelled. There shall be pd to the co. Fee. 
 for every certificate to bearer, the sum of Is. 
 
 19. If the bearer, for the time being, of a certificate to bearer, shall sur- New certifi- 
 render the same, together with the coupons for future interest belonging cates. 
 thereto, to the directors to be cancelled, the directors will issue to him a new 
 certificate to bearer for the stock specified in the certificate so delivered up, or 
 
 any pt thereof. 
 
 20. If the bearer of a certificate to bearer shall suri-ender the same, together Re-entry on 
 with the coupons for future interest belonging thereto, to the directors, to be register. 
 cancelled ; and shall therewith lodge at the office of the co a declon in wi-iting 
 
 signed by him, and in such form as the directors shall from time to time direct, 
 requesting that his name may be entered in the register, hereinafter mentd, as 
 the holder of the stock specified in the same certificate, or any pt thereof ; and 
 stating in such declon his name, and condition or occupation, and address, his 
 name will be entered in the sd register in respect of the stock specified in the 
 sd certificate. 
 
 21. The CO will recognise the bearer of a certificate to bearer as the absolute Benrer of 
 owner of the share of the stock therein specified, and shall not be bound to take certiticate 
 notice or see to the execution of any trust, whether express, implied, or con- :^'jsolute 
 structive, to which such share of stock may be subject; and the receipt of such '^^^^^^^• 
 person for any monies payable upon the redemi^tion of the same share of stock 
 
 shall be a good discharge to the co, notwithstanding any notice it may have, 
 whether express or otherwise, of the right, title, interest, or claim of any other 
 person to or in such share of stock or monies. 
 
 22. With every certificate to bearer there will be issued coupons providing Coupons. 
 for the interest thereafter to accrue due in respect of the share of the stock 
 therein specified up to the time fixed for the redemption of the same. 
 
 23. The CO will recognise the bearer of this coupon as the absolute owner of 
 the interest monies therein specified, and shall not be bound to take notice or 
 see to the execution of any trust, whether express, implied, or constructive, to
 
 282 
 
 DEBENTURES. 
 
 Form 226. 
 
 Interest bow 
 to be paid. 
 
 Receipt of 
 one of joint 
 holders. 
 
 Loss. 
 
 Kegister. 
 
 How to be 
 altered on 
 issue of cer- 
 tificate to 
 bearer. 
 
 Inspection. 
 
 No notice of 
 trusts. 
 
 Interpretation, 
 
 which sucli monies may be subject ; and the receipt of such person for the same 
 monies shall be a good discharge to the co, notwithstanding any notice it may 
 have, whether express or otherwise, of the right, title, interest, or claim of any 
 other jjerson to or in such monies. 
 
 24. The interest upon the registered stock will be pd, at the registered 
 office of the co, to the holders thereof, upon, or at any time after, the day 
 appointed by these conditions for the paymt thereof. The interest upon the 
 stock represented by certificates to bearer, will be pd in accordance with the 
 terms of the coupons issued with such certificates. 
 
 25. If several persons are entered in the register as joint holders of any share 
 of registered stock, the receipt of any of such persons for the interest from time 
 to time payable in respect of such share shall be as effectual a discharge to the 
 CO as if the person signing the same receipt were the sole registered holder of 
 such share of stock. 
 
 26. If any certificate or coupon issued pursuant to these conditions be worn 
 out or defaced, then, upon jjroduction thereof to the directors, they will cancel 
 the same, and will issue a new certificate in lieu thereof ; and if any such cer- 
 tificate or coupon be lost or destroyed, then, upon proof thereof to the satisfon 
 of the directors, or, in default of proof, on such indemnity as the directors 
 deem adequate being given, a new certificate in lieu thereof will be given to 
 the person entled to such lost or destroyed instrumt. An entry as to the 
 issue of the new certificate or coupon and indemnity (if any), will be made in 
 the register hereinafter mentd. 
 
 27. A register of the stock will be kept by the co in one or more books, and 
 there shall be entered in such register : — j^ 
 
 (1.) The names and addresses and descriptions of the holders for the time 
 
 being of the stock. 
 (2.) The amount of stock held by every such person. 
 (3.) The date at which the name of every such person was entered in respect 
 
 of the stock standing in his name and every pt thereof. 
 
 28. On the issue of a certificate to bearer the co shall strike out of the sd 
 register the name of the person then entered as the holder of the stock specified 
 in such certificate, and shall enter the following parlars : — 
 
 (1.) The fact of the issue of the certificate to bearer. 
 
 (2.) A statemt of the amount of the stock included in siich certificate. 
 
 (3.) The date of the issue of the certificate to bearer. 
 
 29. The trustees or trustee and any holder of a share in registered stock, or 
 bearer of a certificate to bearer, will, upon paymt of such fee (not exceeding 
 Is.) as the directors shall from time to time fix, be entled at all reasonable times 
 to inspect the sd register. 
 
 30. No notice of any trust, express, implied, or constructive, shall be entered 
 on the register in respect of any share in the debenture stock. 
 
 31. In these conditions, unless there be something in the subject or context 
 inconsistent therewith — 
 
 " The CO " means The Co, Limtd. 
 
 " The directors" means the director's for the time being of the co. 
 
 " The stock " means the sd mtge debenture stock, created as above mentd. 
 
 •' Eegistered stock " means so much of the stock as shall not for the time 
 being be represented by certificates to bearer. 
 
 Words importing the singular number only, include the plural. 
 
 Words importing the plural number only, include the singular. 
 
 Words importing persons, include corporations. 
 
 Note. — If the stock is to be secured by a trust deed, the following Form can 
 readily be adapted, substituting " the stock " for " the debentiu-es."
 
 FOBMS. 283 
 
 Trust DEEoybr Securing Mtge Debextures Issued ly a Colliery Form 227. 
 Co. The Debentures to be Redee.med h// Half-yearly Trust deed. 
 Drawings. Special Provisions. 
 
 The following precedent can be readily adapted to secure the payment of de- 
 bentures not redeemable by drawings. In such case the fourth recital will be 
 
 that " the directors have determined to raise the sum of 1, by the issue of 
 
 debentiu-es to that amount^, bearing interest at the rate of — L per cent, per annum, 
 and to secure the principal and interest for the time being payable on such 
 debentiu-es, and on any debentures which may be issued in substitution for 
 any of the said debentures (all which debentures, as well original as substituted, 
 are hereinafter referred to as the debentures) in manner hereinafter appear- 
 ing." The form of the debenture may be given in a schedule, or not, at the 
 discretion of the draftsman. It is very common to give it. 
 
 The provisions of the following precedent are more elaborate than in many 
 eases is requisite, but the draftsman can readily expunge the clauses not 
 required in any particular case. 
 
 THIS IXDRE made the of between The Co, Limtd, Parties. 
 
 (hereinafter called the co,) of the one pt, and A., of , and B., of 
 
 (hereinafter called the present trustees), of the other pt. 
 
 Whas the CO is seised of the freehold hereds the short parlars of Recitals, 
 which are specified in the first schedule hereunder written, for an estate 
 of inheritance in fee simple in possession, free from incumbrances ; and 
 is possessed of the several leasehold hereds, the short parlars of which 
 are specified in the third column of the second schedule hereunder 
 written, for the several terms of years specified in the second column of 
 the same schedule, and granted by the several indres of lease, the dates 
 whereof and parties whereto are specified in the first column of the same 
 schedule, at the rents and royalties, and subject to the covenants and 
 conditions in the sd several leases respively reserved and contd, but 
 otherwise free from incumbrances : And whas the co is entled to the 
 full benefit and advantage of certain agreemts, the dates whereof and 
 parties whereto, and the short parlars of which are specified in the first 
 and second cohimns respively of the third schedule hereunder written, 
 at the several rents (if any) and subject to the terms and conditions in 
 the sd agi-eemts respively reserved and contd, but otherwise free from 
 incumbrances : And whas the co is possessed of other personal ppty of 
 considerable value ; namely, of plant, machinery, stock-in-trade, debts, 
 and other choses in action, monies, chattels and effects : And whas the 
 directors of the co in exercise of the powers vested in them by the regula- 
 tions of the CO have determined to boiTow for the pposes of the co the 
 sum of 100,0007. by the issue of 1,000 mtge debentures for 1007. each, 
 bearing interest at the rate of six p. c. p. a. payable half-yearly on the 
 1st day of November and 1st day of May in each year, according to the 
 coupons annexed thereto (such debentures and coupons respively to be 
 in the form set forth in the fourth schedule liereunder written), and to 
 further secure the principal monies and interest for the time being pay- 
 able according to the tenor of the sd debentures (hereinafter called the 
 debentures), and the performance of the stipulations and conditioiLs
 
 284 
 
 DEBENTUEES. 
 
 Form 227. 
 
 Testatum 1. 
 
 Grant of 
 freeholds. 
 
 Habendum. 
 
 Testatum 2 
 
 Demise of 
 leaseholds. 
 
 Habendxxm. 
 
 Testatum o. 
 
 Assignment of 
 benefit of 
 agreements 
 for leases, ^:c. 
 
 Habendum. 
 
 Covenant by 
 company to 
 obtain leases. 
 
 And vest in 
 trustees. 
 
 tlK'vein contd in mamier hereinafter appearing: NOW THIS IXDRE 
 AVITXE8SETH AND DECLARES as follows : 1. The co, as benefi- 
 cial owner, hby grants unto the present trustees, All and singular the 
 lands and hercds, mines, strata, veins, or seams of coal, culm, and other 
 minerals, powers, and privileges, respively specified or referred to in the 
 first schedule hto, To hold the same unto and to the use of the present 
 trustees, but upon and for the trusts and pposes hereinafter expressed 
 concerning the same. 2. The co, as beneficial owner, hby demises unto 
 the present trustees, All and singular, the lands, hereds, copper-works, 
 brick-works, patent-fuel-works, mines, veins, seams, beds, and strata of 
 coal, culm, and other minerals, powers and privileges specified or referred 
 to in the second schedule hto : To hold the same unto the present 
 trustees for all the respive residues now unexpired of the sd seA'eral terms 
 for which the same premes were respively granted by the several indres. 
 of lease mentd in the first column of the sd schedule, except the last day 
 of each of the sd terms, but upon and for the trusts and imposes herein- 
 after expressed of and concerning the same. 3. The co, as lieneficial 
 owner, hby assigns unto the present trustees. All and singidar, the full 
 benefits and advantages of the several agreemts specified or referred to 
 in the third schedule hereunder written, and the rights, easemts, liber- 
 ties, and privileges thereby respively conferred or agreed to be granted : 
 AxD ALL other ppty whatsoever and wheresoever situate, of or to 
 which the co now is or during the continuance of this security shall 
 become possessed or entled, except the last day of each term of years. 
 To hold the same unto the present trustees as to the premes com- 
 prised in the third schedule hto, subject to the terms and conditions 
 contd in the sd several agreemts, and as to all the sd premes hinbefore 
 expressed to be hby assigned upon and for the trusts and pposes hei'e- 
 inafter expressed and declared concerning the same. 
 
 4. The co hby covenants with the present trustees that the co will 
 forthwith, at its own cost, do and perform all acts and things which may 
 be necessary to entle it to have granted to it the respive leases for which 
 it has entered into the several agreemts specified in the first pt of the 
 third schedule hereunder written, of the premes therein comprised 
 respively, and will, at own cost, procure such respive leases to be granted 
 accordingly, and if, when the sd leases shall have been respively granted, 
 any principal money or interest shall remain on the security of the 
 debentures or of these presents will, if necessary, use its best endeavours 
 to obtain, at its own cost, proper licenses for the ppose, and will immedi- 
 ately after such licenses respively, if necessary, shall have been obtained, 
 or if such licenses res})ively shall l)e unnecessary, then inunediately after 
 the sd intended leases respively shall have been granted, at its own cost, 
 well and effectually assign, or demise, or procure to be assigned or 
 demised, the premes to he comprised in such leases respively unto the 
 trustees or trustee for the time being hereof, for the whole, or, at the 
 option of the sd trustees or trustee, any pt of the then respive residues 
 of the terms of vears to be granted by the sd intended leases respively
 
 FOEMS. 085 
 
 and Avith such covenants for title and otherwise, as are usual in mtges Form 227. 
 by assignnit or demise, as the case may be, or may be reasonably re- ^ 
 
 quired, and upon the trusts and for the pposes hereinafter expressed con- 
 cerning the same. 
 
 6. The sd premes hinbefore expressed to be hl)y granted, demised, and Trusts of tlie 
 assigned and covenanted to be assigned or demised respively (hereinafter premfses!^ 
 called the mtged premes), shall be held by the trustees or trustee 
 (which expression in these presents means the present trustees or the 
 survivor of them or other the trustees or trustee for the time being 
 hereof) upon trust that they or he shall permit the co and its assigns to To permit 
 hold and enjoy all the same premes and to carry on therein and there- retalnpa^ses- 
 with the Ijusiness or any of the businesses authorised by memorandum of sion until 
 association of the co, until default shall be made in paymt of some ' ^ '^^^ ' '■^' 
 l^rincipal monies secured by the debentures, or any of them, or in the 
 paymt of some interest on the same for the period of one calendar month 
 after such jn-incipal monies and interest respively shall become due 
 according to the tenor of the same debentures and of the covenant in 
 that behalf hereinafter contd, or until an order shall be made, or an 
 effective resolution of the co be duly passed for the winding up of the 
 CO or until a distress or execution be respively levied or sued out upon or 
 against any of the chattels or ppty of the co, or until a breach of some 
 covenant by the co hereinafter contd, shall have been committed, and 
 fi'om and after such default, or the making of any such order, or the 
 passing of any such resolution, or the levying or issue of any such distress 
 or execution, or the commission of any such breach of covenant as afsd, 
 and in the last-mentd case, notwithstanding the waiver of any prior 
 breach of covenant upon trust (subject to Clause 4 hereof) that the Upon default, 
 trustees or trustee may, in their or his discretion, without any such f*-'-' ^''"***^^'* 
 request as next hereinafter mentd, and shall upon the recjuest in 
 writing of the holder or holders of one-half of the debentures or of 
 the holder or holders of [oO] at least of the debentures, (but in either 
 case without any further consent on the pt of the co or its assigns,) enter 
 upon and take possession of the mtged premes, and may, at their or his 
 discretion, and shall upon the like request, sell, call in, collect, and con- 'Wlieu sale to 
 vert into money the same or any pt thereof [with full power to sell any ^^ "^'"^^ ^' 
 of the same premes, either together or in jjarcels, and either by public And how. 
 auction or private contract, and with full power upon every such sale to 
 make any special or other stipulations as to title, or evidence, or com- 
 mencemt of title or otherwise which the trustees or trustee shall deem 
 proper, and with full power to buy in, or rescind, or vary any contract 
 for sale of the sd premes or any pt thereof, and to resell the same, with- 
 out being responsible for any loss which may be occasioned thereby, and 
 with full power to compromise and effect compositions, and for the pposes 
 afsd or any of tliem, to execute and do all such assurances and things as 
 they or he shall think fit]. 
 
 Sometimes the entry is to be " upon the request in wT-iting of any holder of 
 a debenture or debentures of the company ; " but it is very usual to provide as
 
 286 
 
 DEBENTUEES. 
 
 Form 227. 
 
 Trust of last 
 ilay of terms 
 OD sale. 
 
 What notice 
 to be given 
 liefore sale, &c, 
 
 Provision for 
 protection of 
 IHirchasers, &c, 
 
 above, so that an insignificant minority of the debenture holders may not be able 
 to insist on that being done vv^hich the majority do not desire. Sometimes the 
 sanction of a genei-al meeting of the debenture holders is required. 
 
 The words in brackets can generally be omitted in reliance on ss. 35 and 37 
 of the Conveyancing and Law of Property Act, 1881, but if the company's 
 undertaking is abroad they should remain. 
 
 G. After any sale or sales, under the afsd trust for sale, of any of the 
 sd premes hinbefore expressed to be hby demised, or which shall be 
 demised in psuance of the covenant in that behalf hinbefore contd or 
 otherwise, the co or its assigns shall stand possessed of the last day or 
 other the residue, remaining in the co or its assigns, of the sd respire 
 terms or term for which the premes sold were or shall be so demised to 
 the CO as afsd upon trust for the pchaser or pchasers of the same premes, 
 and to assign and dispose of the same as such pchaser or pchasers shall 
 direct. 
 
 7. Befoee making any such entry as afsd, or any sale, calling in, col- 
 lection, or conversion under the afsd trust in that behalf (hereinafter 
 referred to as the primary trust for conversion,) the trustees or trustee 
 shall, except in the case of such order or resolution as afsd having been 
 made or passed, give written notice of their or his intention to the co, 
 and shall not enter upon the mtged premes or execute the primary trust 
 for conversion, if in the case of such trust arising by reason of any 
 default in paymt of any principal money or interest, the directors shall 
 prove to the trustees or trustee paymt of the principal or interest so in 
 arrear within three calendar months next after such notice shall have 
 been given to them, or if in the case of such trust arising by reason of 
 any such distress, execution, or breach of covenant as afsd, the co shall 
 forthwith, upon such distress or execution being le^•ied or sued out, or 
 upon such notice as afsd being given, remove, discharge, or payout sucl) 
 distress or execution, or fully perform the covenant so brokeu, if capable 
 of then being performed, or make good the breach thereof to the satisfou 
 of the trustees or trustee. 
 
 8. Provided always, that upon any sale, calling in, collection or 
 conversion purporting to be made in psuance of the primary trust for 
 conversion, the pchaser or pchasers, or debtor or debtors, as the case may 
 be, shall not be bound to see or inquire whether any such notice has 
 been given, or whether any default has been made by the co'in paymt of 
 any principal monies or interest secured by any of the sd debentures, or 
 Avhether any such order, resolution, distress, execution, or breach of 
 covenant as afsd, has respively been made, passed, levied, issued or com- 
 mitted, or whether any money remains on the security of these presents, 
 or as to the necessity or expediency of the stipulations and conditions 
 subject to which any such sale shall have been made, or otherwise as to 
 the propriety or regularity of such sale, calling in, collection or conver- 
 sion, and notwithstanding any impropriety or irregularity whatsoeA'er in 
 any such sale, calling in, collection or conversion, the same shall, (so far 
 as regards the safety and protection of the pchaser or pchasers, debtor or 
 debtors, as the case may be,) be deemed to be within the primary trust
 
 FORMS. 
 
 287 
 
 for conversion and be valid and effectual accordingly, and the remedy of Form 227. 
 the CO and its assigns in respect of any impropriety or irregularity what- 
 soever in the execution of the primary trust for conversion shall be in 
 damages only. 
 
 9. Upon any such sale, calling in, collection or conversion as afsd, the Trusteef;' 
 receipt of the trustees or trustee for the pchase money of the premes 
 
 sold, and for any other monies pd to them or him, shall eifectually dis- 
 charge the pchaser or pchasers, or other person or persons paying the 
 same therefrom, and from being concerned to see to the applicon or 
 being answerable for the loss or misapplicou thereof. 
 
 This may generally be omitted in reliance on section 35 of the Conveyancing- 
 and Law of Property Act, 1881. 
 
 10. The trustees or trustee shall hold the monies to arise from any Trusts of pro- 
 sale, calling in, collection, or conversion under the primary trust for *^^iiin °^in^&c 
 conversion upon trust, that they or he shall thereout, in the first place, 
 
 pay or retain the costs and expenses incurred in or about the execution 
 of such trust or otherwise in relation to these presents, and shall apply 
 the residue of the sd monies. First, in or towards pajant to the 
 holders of the debentures, jjari passu in proportion to the amount due to 
 them respively, and Avithout any preference or priority wliatsoever, of all 
 arrears of interest remaining unpd on such debentures ; Secondly, in 
 or towards paymt to the holders of the debentures, jiari jmssu in propor- 
 tion to the amount due to them respively, and without any preference or 
 priority either on account of priority of issue, or of any debenture 
 having been drawn for redemption or otherwise howsoever, of all prin- 
 cipal monies due on such debentures, and that whether the same prin- 
 cipal monies shall or shall not then be payable according to the tenor of 
 the sd debentures ;. and, Thirdly, shall pay the surplus (if any) of such 
 monies to the co or its assigns. 
 
 11. Peovided always, that if the amount of the monies at any time Power to with- 
 apportionable under Clause 10 hereof, shall be less than lOZ. per deben- unttuutt^dent 
 ture, the trustees or trustee may, at their or his discretion, invest such fund to pay 
 monies upon some or one of the investmts hereinafter authorised, with '^^l ^f ' 
 
 ^ _ _ ' debenture. 
 
 power from time to time at the like discretion to vary such investmts, 
 and such investmts, with the resulting income thereof, may be accumu- 
 lated until the accumulations, together with any other funds for the time 
 being under the control of the trustees or trustee, and applicable for the 
 ppose, shall amount to a sum sufiicient to pay lOZ. per debenture upon 
 such of the sd debentures as shall be outstanding, and then such accumu- 
 lations and funds shall be applied in manner afsd. 
 
 12. The trustees or trustee shall give not less than seven days notice Notice of 
 
 by advertisemt in the Times, and at least one other daily London news- ^Ppo^tion- 
 
 "^ '' ments to be 
 
 paper, of the day fixed for any paymt to tlie holders of debentures under given. 
 
 Clauses 10 or 11 hereof, and after the day so fixed and advertised the 
 
 holder of each outstanding debenture shall be entled to interest on the 
 
 balance only (\i any) of the principal monies due on such debenture after
 
 288 DEBENTURES. 
 
 Form 227. deducting the amount (if any) payable in respect thereof on tlie day so 
 
 fixed. 
 Receipt of 13. The receipt of the holder of each of the debentures for the prin- 
 
 debentures "^^P^^ nionies and interest intended to be thereby secured, sliall be a good 
 or coupon to discharge to the trustees or trustee. 
 
 ^r \°°°^^ ^"^- Upon any paymt under Clauses 7 and 8 hereof respively, to the 
 
 Indorsement holder of a debenture on account of the principal monies or interest 
 to be made on thereby secured, the debenture shall be produced to the trustees or 
 iipon\)arr trustee, who shall cause a memorandum of the amount and date of paymt 
 payment. to 1)6 indorsed thereon. 
 
 Power for 15. At any time before the trustees or trustee shall have entered 
 
 trust^for L\e^ ^^^*^° posscssion of the mtged premes or any pt thereof in psuance of 
 arises to sur- the trust afsd, the trustees or trustee may, upon the applicon and at the 
 ren er eases. ^^^^ ^^ ^.j^^ ^^^ acquire or concur in acquiring a new or renewed lease, or 
 new or rencAved leases, of all or any of the sd premes hinbefore expressed 
 to be liby demised or covenanted to be demised respively, for such term 
 or respive terms, not being less than the then respive residues of the sd 
 now existing terms, or the terms to be created as afsd, in the same hereds 
 respively, and at such rents and royalties, and subject to such covenants 
 and conditions, as they or he shall think fit ; And for that ppose may 
 surrender or concur in surrendering the then existing lease or leases of 
 the same hereds resjjively and the terms therein as afsd ; And any such 
 new or renewed lease may be granted either to the trustees or trustee, or 
 to any nominee or nominees of the co, but so that in the latter case the 
 lessees or lessee do execute a declon of trust for the co, subject to the 
 provisions of these presents ; And every such new or renewed lease and 
 the premes comprised therein and the term thereby granted shall become 
 and be in all respects subject to the trusts and provisions herein contd, 
 as though the interest of the co therein had been hby assured to the 
 trustees. 
 And to concur K). At any time before the trustees or trustee shall have made such 
 i» fee irg. entry as afsd, the trustees or trustee may upon the like applicon and at 
 the cost of the co sell, call in, and convert, or concur in selling, calling 
 in, or converting, all or any of the mtged premes in the same manner as 
 they or he could do if the primary trust for conversion had then arisen, 
 and shall hold the net proceeds to arise from any sale, calling in and 
 conversion under the poA\'er in that behalf in this clause contd, upon 
 trust to lay out the same or any pt thereof if they or he shall think fit 
 in the construction, erection, or imjirovemt of any railways, tramways, 
 How proceeds buildings, works, or erections of a fixed or permanent nature, suitable 
 to e em- ^^^, ^^^^ pposes of the CO, and so as to constitute a permanent improvemt 
 of the remaining ppty of the co, or in the pchasc of other hereds suit- 
 able to be held in connection with such other ppty, or in the pchase of 
 machinery, chattels, or effects necessary or convenient for the pposes of 
 the CO, or otherwise to apply the same in such manner as the trustees or 
 trustee may think calculated to promote the interests of the co, and so 
 that the site of any such railways, tramways, buildings, works, or erec-
 
 FORMS. 289 
 
 tions, if not already comprised in these presents, and any hereds so Form 227. 
 pchased shall be conveyed or assured in such manner as the trustees or ~~ 
 
 trastee shall require, so as to become subject to all the trusts, powers, 
 and provisions herein contd ; And until any such investmt as afsd the Interim invest- 
 tmstees or trustee shall invest the same net proceeds upon some or one of ™^^ ^* 
 the investmts hereinafter authorised with power from time to time at 
 their or his discretion to vary such investmts, and with power (until 
 the primaiy trust for conversion shall arise) to resort to any such last 
 mentd investmts for any of the pposes for which such proceeds are firat 
 hinbefore authorised to be expended ; And subject as afsd the trustees Trusts of in- 
 or trustee shall stand possessed of the sd investmts upon trust, until 
 the primary trust for conversion shall arise, to pay the income thereof 
 to the CO or its assigns, and after the primaiy trust for conversion 
 shall have arisen shall hold the sd investmts and the income thereof 
 respively upon and for the trusts and pposes hinbefore expressed 
 concerning the monies to arise from any sale calling- in, and conver- 
 sion, under the primary trust for conversion. Provided always that 
 in default of such trust for conversion arising and after paymt and 
 satisfon of all monies intended to l)c secured by these presents the 
 sd investmts and the income thereof shall be held in trust for the co or 
 its assigns. Po^er for 
 
 17. After the trustees or trustee shall have made such entry as afsd g^ti-y ^g carry 
 and until the whole of the mtged prenies shall be sold, called in, col- o^ business, 
 lected, and converted under the primary trust for conversion, the trustees 
 or trustee may if they or he shall think fit so to do, but not othenvise, ,^'^^1 ^^"7 °'^ 
 
 DUSlllGSS, 
 
 carry on the business of the co in and with the mtged premes or any of 
 them, and may manage and conduct the same as they or he shall in 
 their or his discretion think fit, and for the pposes of the sd business 
 may employ such agents, managers, recei\'ers, accountants, servants, and 
 workmen upon such terms as to remuneration and otherwise as they or 
 he shall think proper, and may renew such of the sd plant, machinery, 
 and effects as shall be worn out or lost, or otherwise become unservice- 
 able, and generally may do or cause to be done all such acts and things, 
 and may enter into such arrangemts respecting the sd premes or the 
 working of the same or any pt thereof as they or he could do if they or 
 he were absolutely entled thereto, and without being responsible for any And to let on 
 loss or damage which may arise or be occasioned thereby ; Axd may °'^^'^" 
 also, at their or his discretion, demise or let the mtged premes, or any ^^ ^^ applied, 
 pt thereof, upon such terms and subject to such stipulations as the 
 trustees or trustee shall think fit. Provided always that the trustees 
 or trustee shall, by and out of the rents and profits and income 
 of the same premes, and the monies to be made by them or him in 
 carrying on the sd business, pay and discharge the expenses incurred in 
 and about such managemt, or in the exercise of any of the powers afsd 
 or other^vise in respect of the premes, and all outgoings which they or 
 he shall think fit to pay, and shall pay and apply the residue of the sd 
 rents, profits, and monies in the same manner as is hinbefore provided 
 
 U
 
 290 
 
 DEBENTUEES. 
 
 Investment 
 clause. 
 
 Form 227. with respect to the monies to arise from any sale, calling in, and con- 
 version under the primary trust for conversion. 
 
 18. Any monies which, under the trusts herein contd, ought to be 
 invested, may be invested in the names or name or under the legal 
 control of the trustees or trustee in any of the public stocks, or funds, 
 or Government securities of the United Kingdom, or in the stock of the 
 Bank of England [or may be placed on deposit in the names or name of 
 the trustees or trustee in such bank or banks as they or he may think 
 fit]. 
 Special powers 19- The trustees or trustee may raise and borrow money on the secu- 
 where prior in- i-jty of the mtgcd prcuies, or any pt thereof, for the ppose, but for the 
 exist. ppose only, of paying off or discharging any mtge or charge for the time 
 
 being charged on the mtged premes or any pt thereof in priority to 
 these presents, or for the ppose of defraying any costs, charges, losses, 
 and expenses which shall be incurred by the trustees or trustee, or any 
 of them, in relation to these presents : And the trustees or trustee may 
 raise and bori'ow such monies as afsd at such rate of interest, and gene- 
 rally on such terms and conditions as the trustees or trustee shall think 
 fit, and may secure the repaymt of the monies so raised or borrowed, 
 with interest for the same, by mortgaging or otherwise charging the 
 mtged premes or any pt thereof, in such manner and form as the trustees 
 or trustee shall think fit. The trustees or trustee may also concur in 
 the transfer of any mtge or charge for the time being charged on the 
 mtged premes, or any pt thereof, in priority to these presents, and may 
 redeem or concur in redeeming the mtge premes, or any pt thereof, from 
 any such mtge or charge and for the pposes afsd may execute and do all 
 such assurances and things as they or he shall think fit. 
 
 The above clause will only he inserted in cases where the circumstances 
 I'equire it. 
 
 Covenants by- 
 company : — 
 
 1 . For re- 
 demption of 
 debentures by 
 half-yearly 
 drawings. 
 
 2. Debentures 
 to be a first 
 charge, and 
 
 to rank 2Mri 
 2xi.ssi(i 
 
 20. The co doth hby covenant with the sd A. and B., their exs, ads, 
 and assigns, as follows : — First, that the co will pay the principal 
 monies and interest secured by the debentures in accordance with 
 the tenor thereof respively, and will observe and perform the several 
 conditions indorsed thereon respively ; Secondly, that the principal 
 monies and interest intended to be secured by the debentures shall be 
 a first charge on the mtged premes, and that the sd principal monies 
 and interest shall take precedence over all monies which may here- 
 after be raised by the co by any means whatsoever ; and that as 
 between the several holders thereof (except as herein otherwise pro- 
 vided) the debentures shall rank pari jmssic without any preference or 
 priority by reason of date of issue or otherwise ; And further, that the co 
 or its assigns will at all times keep an accurate register of the debentures 
 showing the number and amount of each debenture and the date of 
 issue ; and that the trustees or trustee and the holders of the debentures, 
 or any of them, shall be at libty at all reasonable times to inspect the 
 sd register, and to take copies of, or extracts from the same, or any pt
 
 rOEMS. 291 
 
 thereof : Thirdly, that tlie co will, during the continuance of this Form 227. 
 
 security, cany on and conduct the business of the co to the greatest 3 Business 
 
 possible advantage ; Axd will keep proper books of account, and therein of company 
 
 make true and perfect entries of all dealings and transactions of or in ^^ effectually. 
 
 relation to the sd lousiness ; and that the sd books of account and all Accounts to 
 
 other documts relating to the affairs of the co shall lie kept at the ^^^ ^®P* ' 
 
 registered office of the co, or other place or places where the sd books of 
 
 account and documts of a similar nature have heretofore been kept, and 
 
 that the same shall at all reasonable times be open for the inspection, of 
 
 the trustees or trustee, and such person or persons as they or he shall 
 
 from time to time in ^\•riting for that ppose appoint ; And that the co and to be open 
 
 will at all times during the continuance of this security give to the °^ ''^"^ 
 
 trustees or trustee, or to such person or persons as afsd, such information 
 
 as they, or he, or any of them shall require as to all matters relating to 
 
 the sd business or any after acquired ppty of the co, or otherwise 
 
 relating to the affairs thereof; Axd will not pull down or remove any Buildings, &c. , 
 
 dwelling-houses, store-houses, stations, engine-houses, buildings, erec- °°* ^'^ ^^ 
 
 * ' ' f pulled down. 
 
 tions, furnaces, forges, foundries, gins, railways, tramways, wharfs, on 
 the hereditamts for the time being subject to this security, nor the 
 fixed engines, steam-engines, plant, machinery, fixtures, and fittings 
 finnexed to the same respively, or any of them, without the previous con- 
 sent in writing of the trustees or trustee, except in any case where such 
 pulling down or removal shall be rendered necessary by any of the last- 
 mentioned premes being worn out or injured, and in such cases will 
 replace the premes so worn out or injured by others of a similar nature 
 and of at least equal value ; Axd will, when necessary, renew and Renewal of 
 replace all moveal^le engines, plant, machinery, tools, implemts, utensils, ™^ ^ 
 and other effects of a like nature now used or hereafter to be used for 
 the ppose of or in connection with the business of the co, when and as 
 the same shall be worn out or destroyed ; Axd will keep the sd hcredita- Premises to 
 mts and all plant, machinery, works, fixtures, fittings, implemts, utensils, j^Lak • 
 and other effects therein or upon the same respively, and used for the 
 ppose of or in connection with the sd business and every pt thereof in a 
 good state of repair and in perfect working order and condition ; Axd 
 will permit the trustees or trustee, and such persons as they or he shall 
 from time to time in WTiting for that ppose appoint to enter into and 
 upon the same hereds respively to view the state and condition thereof, 
 and of all plant, machinery, works, fixtures, fittings, implemts, utensils, 
 and other effects then in or upon the same respively, and used for the 
 ppose of or in connection with the sd business ; Axd also will insure and and insured, 
 keep insm-ed such of the mtged premes as are of an insurable nature 
 against loss or damage by fire in their full value, in such office as the 
 trustees or trustee shall for that ppose appoint, and will duly pay 
 the premiums and other sums of money payable for that ppose, and im- 
 mediately after every such paymt deliver (if required) to the trustees or 
 trustee the receipt for the same ; and will apply all monies to be received 
 by virtue of any such policy in making good any loss or damage which. 
 
 u 2
 
 
 DEBENTURES. 
 
 Power in 
 default for 
 trustees to 
 repair and 
 insure ; 
 
 Form 227. may so arise to tlie sd premcs or any of them ; And that if default shall 
 be made in kec})!!!"- the sd premes iu a good state of repair, and in per- 
 fect working order and condition, or so insured as afsd, or iu delivering- 
 any such receipt as afsd, the trustees or trustee may repair the sd premes 
 or such of them as shall in their opinion require reparation, and may 
 insure and keep insured the sd premes or such of them as they may 
 deem fit, and that the co will on demand repay to the trustees or trustee 
 every sum of money expended for the above pposes or any of them, by 
 them or him, with interest at the rate of 10 p. c. p. a., from the time of 
 the same respively having l)een expended, and that until such repaymt 
 the same shall be a charge upon the mtged premes. 
 
 Occasionally an attornment clause is inserted, but it is not usual where the 
 debentures are secured on the whole assets. See form in Brown, Bayley 4'- 
 Bixon, 45 L. T. 347. The effect of the Bills of Sale Act, 1882, must be borne in. 
 mind. 
 
 — for payment 
 of salary to 
 trustees ; 
 
 — special 
 indemnity 
 to trustees. 
 
 Power for 
 trustees to 
 retain salary 
 and outgoings. 
 
 21. And the co hby covenants with the present trustees that the co 
 will, in each and every year during the continuance of this security, pay 
 to each of the trustees fur tlic time being of these presents, as and by 
 way of remuneration for his services as trustee, the sum of [100?.} 
 
 by equal half-yearly paymts, on the day of June and day 
 
 of December in each such year, in addition to all travelling and other 
 costs, charges, and expenses which he may incur in relation to the 
 execution of the trusts hl)y in him reposed, and also (in addition to the- 
 ordinary right to indemnify by law given to trustees) will at all times- 
 hereafter keep indemnified the sd trustees and each of them, and their 
 and his heirs, exs, and ads, estates, and effects, from and against 
 all actions, proceedings, costs, charges, claims, and demands whatsoever, 
 which may arise or be brought or made against them or him in respect 
 of the execution of the trusts hereof, or iu respect of any matter or thing- 
 done or omitted (without their or his own wilful default) with respect or 
 relating to the premes ; Pro^dded always that the trustees or trustee 
 may retain or pay to themselves or himself, out of any monies in their 
 or his hands upon the trusts of these presents, the amount of any such 
 remuneration as for the time being may be due to them or him, or 
 of any such monies, costs, charges, and expenses, claims or demands, as 
 afsd. 
 
 22. The provisions contd in the fifth schedule hto shall have effect in 
 the same manner as if such provisions were herein set forth. 
 
 This clause and the fifth schedule can be omitted if thought fit;, but see no te- 
 at foot of that schedule. 
 
 23. The trustees or trustee may from time to time and at any time 
 waive, on such terms and conditions as to them or him shall seem 
 expedient, any breach by the co of any of the covenants in these presents 
 contd. 
 
 24. The trustees or trustee may delegate to any person or persons all
 
 FORMS. 293 
 
 or any of the trusts, powers and discretions vested in them by these Form 227. 
 presents, and any such delegation may be made upon such terms and 
 conditions, and subject to such regulations (including power to sub- 
 delegate) as the trustees or trustee may think fit. 
 
 A clause as above is useful, especially where a trust deed includes or affects 
 foreign property. 
 
 2,5. AVhenever there shall be more than two trustees hereof, the 
 majority of such trustees shall be competent to execute and exercise 
 all the trusts, powers, and discretions, hby vested in the trustees 
 generally. 
 
 The above clause is sometimes found useful. 
 
 2G. These presents are not intended to be registered as a l»ill of sale, Deeds not to be 
 and it shall not be incumbent on the trustees or trustee to give notice to registered. 
 any person or persons of the assignmt hinbefore contd of choses in action assi^n^ment 
 belonging to the co unless and until the primary trust for conversion of cLoses in 
 shall have arisen, and the trustees or trustee shall have determined to uot be'^'^lven. 
 execute the same, and they or he shall not be deemed to commit a breach 
 of trust or incur any lialtility whatsoever l)y neglecting or omitting so 
 to do. 
 
 27. Upon proof l^eing given to the reasonable satisfon of the trustees Reconveyance 
 or trustee that all the debentures entled to the benefit of trusts herein 
 
 contd and for the time being issued, have been pd off or satisfied, and 
 upon paymt of all costs, charges, and expenses incurred by the trustees 
 vv trustee in relation to these presents, the trustees or trustee shall at 
 the request of the co reconvey to the co tlie nitged premes or such part 
 riiereof as may remain ^■ested in them or him, fi'ced and discharged 
 from the trusts herein contd. 
 
 28. The statutory power to appoint a new trustee or new trustees 
 hereof shall be vested in the co. 
 
 Sometimes a full power to appoint new trustees is inserted. Occasionally the 
 power is vested in the company, and sometimes in the debenture holders. In 
 the latter case, the power is usually made exercisable by the debenture holders 
 in general meeting. Sometimes express power to resign without liability for 
 expense is conferred. 
 
 Ix Witness, &c. 
 
 THE SCHEDULES ABOVE REFERRED TO. 
 
 First Schedule. 
 [ Par Uculars offreelio Ids . ] 
 
 Second Schedule. 
 \^Par tic alar s of leaseholds.'] 
 
 Third Schedule. 
 \_Particidars of a{/reemenf.'\
 
 294 DEBENTURES. 
 
 Form 227. 
 
 Fourth Schedule. 
 
 [Here insert the form of debenture. It may be framed in accordance with 
 Form 211, and will purport to charge all the company's property or all the pro- 
 perty not comi^rised in the indenture. The conditions will be as in Form 2116, 
 with the addition of the provisions as to drawings, &c., in Form 217.] 
 
 Fifth Schedule. 
 
 1. The trustees or trustee or the co may respively at any time convene a 
 meeting of the debenture holders. [Sometimes provision is made for convening 
 a meeting pui-suant to a requisition by debenture holders.] 
 
 2. Seven days notice at the least, specifying the place, day, and hour of meet- 
 ing, shall be given previously to any meeting of the debenture holders. Such 
 notice shall be given by advertising the same twice in the Times newspaper, 
 and once in the London Gazette. It shall not be necessary to specify in any 
 such notice the nature of the business to be transacted at the meeting thereby . 
 convened. 
 
 3. At any such meeting persons holding one-fifth of the nominal amount of 
 the debentures for the time being outstanding shall form a quorum for the 
 transaction of business ; and no business shall be transacted at any meeting- 
 unless the requisite quorum be present at the commencemt of business. 
 
 4. Some person nominated by the trustees or trustee shall be entled to take 
 the chair at every such meeting ; and if no such person is nominated, or if at 
 any meeting the person nominated shall not be jn-esent within fifteen minutes 
 after the time appointed for holding the meeting, the debenture holders present 
 shall choose one of their number to be chairman. 
 
 5. If within half-an-hour from the time appointed for any meeting of the 
 debenture holders a quorum is not present, the meeting 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, the debenture holders present 
 shall form a quorum, and may transact any business which a meeting of the 
 debenture holders is competent to transact. 
 
 6. Every question submitted to a meeting of the debenture holders shall be 
 decided in the first instance by a show of hands ; and in case of an equality of 
 votes the chairman shall, both on the show of hands and at the poll, have a 
 casting vote in addition to the vote or votes (if any) to which he may be entled 
 as a debenture holder. 
 
 7. At any general meeting of the debenture holders, unless a poll is demanded 
 by at least three debenture holders, a declon by the chairman that a resolution 
 has been carried, or carried by any jjarlar majority or lost, or not carried by a 
 parlar majority, shall be conclusive evidence of the fact. 
 
 8. If at any such meeting a poll is demanded by three or more debenture 
 holders, it shall be taken in such manner, and either at once or after an ad- 
 journmt as the chairman directs, and the result of such poll shall be deemed 
 to be the resolution of the meeting at which the poll was demanded. 
 
 9. The chairman may, with the consent of any such meeting, adjourn the 
 same from time to time. 
 
 10. Any poll demanded at any such meeting on the election of a chairman 
 or on any question of adjournmt, shall be taken at the meeting without ad- 
 journmt. 
 
 11. At any such meeting as afsd the resj^ive bearers of the debentui-es and 
 no other person or jjersons, shall Ije recognised and treated as the legal holders 
 thereof, whether the same be payable to l^carer or to the registered holder, and 
 accordingly shall he entled to vote in respect thereof. 
 
 12. At every such meeting each debenture holder shall be entled to one vote 
 in respect of every principal sum of 501. secured by the debentures of which he 
 shall be the holder.
 
 FOUMS. 295 
 
 [Sometimes as regards i*egistered debentures it is considered expedient to Form 227. 
 allow voting by proxy.] 
 
 13. Where the trustees or trustee shall have made such entry as afsd, they or 
 he, with the authority of a special resolution, may, at any time afterwards, give 
 up possession of the premes to the co either unconditionally or vipon any condi- 
 tions that may be arranged between the co and the trustees or trustee, with the 
 sanction of a special resolution. 
 
 14. A general meeting of the debenture holders shall, in addition to the 
 power hinbefore given, have the following powers exercisable by special resolu- 
 tion, namely: — 
 
 (1.) Power to sanction the release of any of the mtged premes. 
 
 (2.) Power to sanction any modification or compromise of the rights of the 
 debenture holders against the co or against its ppty, whether such rights 
 shall arise under the debentures or under these presents, or otherwise. 
 
 15. A special resolution passed at a general meeting of the debenture holders, 
 duly convened and held in accordance with these presents, shall be binding 
 upon all the debenture holders, whether present or not present at such meeting, 
 and each of the debenture holders shall be bound to give effect thereto accord- 
 ingly. 
 
 IG. The expression " special resolution," when used in this schedule, means 
 a resolution passed at a meeting of the debenture holders, duly convened and 
 held in accordance with the provisions herein contd by a majority consisting of 
 not less than three-fovirths of the persons entled to vote thereat. Provided 
 that, in comjiuting the majority, when a poll is demanded, reference shall be 
 had to the number of votes to which every such person is entled under these 
 presents. 
 
 17. Minutes of all resolutions and proceedings at every such meeting as 
 afsd shall be made and duly entered in books, to be from time to time pro- 
 vided for that ppose by the trustees or trustee, at the expense of the co ; 
 and any such minutes as afsd, if purporting 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 succeeding meeting of the debenture holders, shall 
 be conclusive evidence of the matters therein stated ; and until the contrary is 
 proved, every such meeting in respect of the proceedings of which minutes 
 have been 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. 
 
 [It is by no means uncommon now to insert provisions (as above) in a deben- 
 ture trust deed, enabling the majority to bind the minority in respect of various 
 matters. The Joint Stock Comi^anies Ari-angement Act, 1870, gives such a 
 power, but it only applies when the company is in liquidation. Now it some- 
 times happens that a company which has raised a large sum on debentures falls 
 into temporary difficulties, and, though a large majority of its debenture 
 holders may be willing to give time or make some reasonable arrangement, a 
 minority decline to concur, and, in the result, the company is forced into liquida- 
 tion. The insertion of provisions as above meets this inconvenience, and may 
 save the majority from the tyranny of the minority.] 
 
 Note. — Sometimes the trust deed does not purport to convey the mortgaged 
 premises to the trustees, but contains a covenant to convey, with a proviso that 
 the covenant shall not be enforced till the occurrence of certain events.
 
 POLICIES. 
 
 Notwithstanding the extent of the insurauce business transacted in 
 the United Kingdom, very few forms of pohcies are to he found in the 
 hooks of precedents. To give a full collection would require more space 
 than can he spared in this work, hut tlie following forms will it is hoped 
 in some degree supply what the draftsman requires. 
 
 PRECEDENTS. 
 
 Form 228. AViias (hereinafter called the assured) desires to effect an 
 
 Skeleton assurance with (hereinafter called the co), upon (1) in the 
 
 policy. sum of pounds, (hereinafter called the principal sum assured), to 
 
 be payable as hereinafter provided [and has delivered to the co a 
 
 proposal and declon in writing dated the day of which is hhy 
 
 declared to be the basis of the contract herein contd]. 
 
 Most companies provide as above that the pi-oposal and declaration shall be 
 the basis of the contract, but there can be no doubt that condition 1, infra, 
 p. 301, affords ample protection to the company without such provision. 
 
 And Whas the assured has paid to the co the sum of 
 
 pounds shilliugs and pence as a premium in respect of such 
 
 assurance until the day of . 
 
 Xow This Policy AVitnesseth and declares that if • • (2) shall 
 
 ■ die before the day of , or if (3) shall live beyond that day 
 
 and the assured shall on the day of next and on each succeeding 
 
 • day of (4) during the continuance of this assurance, pay or 
 
 cause to be pd to the co the premium of pounds shillings 
 
 and pence or such reduced premiums as may from time to time be 
 
 payable in respect of this assurance, Then and in such case the co 
 
 shall pay to (5) at the expiration of one calendar month after proof 
 
 ghall have been given to the satisfon of the co of (6) the principal 
 
 Bum assured. 
 
 A few companies frame their policies so that the sum assured shall be 
 payable upon proof being given, &c., without providing for an interval and a 
 good many companies whose policies allow an interval, pay at once. Three 
 months is the usual interval expressed in the i^olicy.
 
 PRECEDENTS. 097 
 
 This policy entled to participate in profits in accordance with Form 228. 
 
 the co's regulations. 
 
 The blank in the above clause will be filled up with the -words " is," or " is 
 not" as arranged. This plan saves needless multiplication of policy forms. 
 But a great many offices in lieu of this clause add to the preceding clause in 
 the ease of participating policies the words " Together with such sum or 
 sums, if any, as under the provisions of the company's regulations shall have 
 been appropriated by way of bonus, and added to the principal sum assui-ed." 
 
 This policy is suhject to the conditions, [see infrci. p. :^>01. d soq.'] 
 indorsed hereon ^vllicll are to l)e deemed pt of it, 
 
 \_T)i the case of an v /limited Company insert the ^^roviso as in Form 
 
 239, and in case of a Company having several de2Kirfments insert Form 
 
 240, or sonif other appropriate form. '\ 
 
 It is not usual to make policies a charge on the assets, and accordingly, if a 
 company is wound up, the policy-holders rank jpai-t passu with general creditors. 
 However there are two or three companies who give a charge, e.g. one leading 
 company by its policy declares that "the capital stock and funds of the Co. 
 shall stand charged and be liable to pay," and another provides that "the 
 insurance shall take effect only as a charge u^on the funds by the constitution , 
 of the company appropriated," &:c. Now that the validity of a iloating charge 
 has been established [supra, p. 258] it would seem desirable to give policy- 
 holders a pari passu charge. They seem at least as much entitled to protection 
 as debentvire-holders. -Re Great Britain Mutual, 19 C. Div. 39, is suggestive on 
 this point : there the company was insolvent and the Court made an order 
 reducing contracts, but held that all overdue poKcies must be paid in full : if 
 there had been a charge, a winding-up order might have been taken and a 
 scheme effected under the Act of 1870, and in that case the overdue policy- 
 holders would have been compelled to abate rateably with the other poKcies. 
 
 Some companies have a large number of different printed forms of policies : 
 e.g. (1) own life with profits; (2) ovra life without profits; (3) own life for 
 terms of years, and so forth, the object being to save time and trouble in 
 issuing policies. Others only have one general form [e.g. as aljove ] or a very 
 limited number of general forms. Form 228 can be used as a general form 
 to be filled up as occasion requires in accordance with Forms 229 to 238, infra, 
 or a number of Forms can be prepared from Form 228 and the Forms last 
 mentioned, leaving blanks merely for dates, names, and amounts. 
 
 Ix "Witness whereof the co hath caused its commou seal to be 
 hereunto affixed this day of . 
 
 Note. — The co's principal place of husiness at which notices of 
 assignmfc may be given in psuance of the Policies of Assurance Act, 
 18G7, is at [Xo. Street in the City of London.] 
 
 By S. 4, of the Act of 1867, (30 & 31 Vict. c. 144) above mentioned, an 
 assurance company is required to specify on every policy issued, their principal 
 place or principal places of biisiness at which notices of assignment may be 
 given in pursuance of the Act. 
 
 As in Form 228, filling in the numljered l)lanks as follows : Q ) his or Form 229. 
 her own life ; (2) the assured : (oj he or she ; (5) the assured ; (0) the Ordinary own 
 death of the assured. ^'^^• 
 
 As in Form 228, filling in the numbered blanks as follows : (1) his [or Form 230. 
 her] own life ; (2) the assured ; (;■>) he [or she] ; (b) the assured ; (G) the oT~i-f f„ 
 death of the assured within the term of years from the date hereof, term of years.
 
 298 
 
 POLICIES. 
 
 Form 231. As in Form 228, filling- in the numbered Wanks as follows : (1) his 
 :r~r7 [or herl own life ; (2) the assured ; (3) he [or she] ; (4) until the 
 
 Own lite pre- <- J '\/ _ -,-,.. v,t i/r.Ni^iij.i 
 
 mium for term day of [i.e. the last preninnn day] ; (o) the assured ; (G) the death 
 
 of years. ^^ ^.j^^ assured. 
 
 Form 232. As in Form 228, filHng in the numl)ered l)lanks as follows : (1) the 
 
 ^T^^ life of [B.] ; (2) the sd [B.] ; (3) he [or she] ; (.5) the assured ; (G) the 
 
 another. death of the sd [B.]. 
 
 Form 233. As in Form 228, filling in the numhered blanks as follows : (1) his 
 Endowment ^wn life ; (2) the assured ; (3) he [or she] ; (5) the assured, his exs, 
 own life. ads, or assig-ns ; (G) the death of the assured, or of his [or her] having; 
 attained the age of years, whichever event first happens. 
 
 Form 234. As in Form 228, filling in the numbered blanks as follows : (1) the life 
 Endowment' of [B.] ; (2) the sd [B.] ; (3) he [or she] : (5) the assured ; («) the death 
 
 life of another, of the sd [B.], or his [or her] ha\-ing attained the age of years, 
 
 whichever event first happens. 
 
 Form 235. As in Form 228, filling in the numbered blanks as follows : (1) the 
 ^^ ^jg^^j^ ^j ■ lives of B. and C. ; (2.) the assured ; (3) he [or she] ; (5) the 
 survivor. assured ; ((i) the death of the survivor of the sd B. and C. 
 
 Form 236. As in Form 228, filling in the numbered blanks as follows : (1) their 
 Joint lives joint lives ; (2) the assured ; (3) they or either of them; (5) the survivor 
 of the assured ; (G) the death of either of them. 
 
 Form 237. As in Form 228, filling in the blanks as follows : (1) the life of [B.] ; 
 
 Death of B (") ^^^^ assured ; (3) he [or she] ; (.")) the assured ; (G) the death of 
 
 provided C. B. in the lifetime of C. 
 then living. 
 
 Form 238. As in Form 228, filling in the blanks as follows : (1) his own life, for 
 
 Trr.f I the benefit of his wife and children, pursuant to the Married Women's 
 
 cJiiidren. Property Act, 1882 ; (2) the assured ; (3) to the trustee or trustees 
 
 appointed, pursuant to the sd Act, or in default of notice of any such 
 
 appointmt to the exs or ads of the assured the principal sum assured ; 
 
 (G) the death of the assured. And insert also the following : — 
 
 This policy is effected for the benefit of , the wife of the assured 
 
 and his children by her, and the policy and the monies payable there- 
 under, are to be held by the trustee or trustees (which expression in 
 this policy means the trustees or trustee for the time being of this 
 policy, or the monies payable thereunder, including the assured, whilst 
 he remains a trustee) upon the trusts following, that is to say, upon 
 such trusts in favour of the sd wife and children of the assured as the 
 assured shall by deed, with or without power of revocation, or by will 
 or codicil appoint, and subject to or in default of any such appointmt
 
 PRECEDENTS. 299 
 
 upon trust to invest such monies in or upon any investmts for the time Form 238. 
 being iiuthorised by law as an investmt for trustees, with full dis- 
 cretionary power of variation, and to pay the income of the sd monies 
 and the investmts thereof for the time being to the sd wife during her 
 life, without power of anticipation, and after her death to hold the 
 trust premes in trust for all or any such one or more of the children of 
 the assured, and in such shares, and subject to such conditions, and in 
 such manner as the sd wife shall from time to time by deed, with or 
 without power of revocation, or by will or codicil appoint, and in 
 default of and subject to any such appointmt as last afsd, in trust for 
 all the children, or any the child of the assured, who being male, attain 
 the age of twenty-one years, or being female, attain that age, or marry : 
 Provided always, that no cliild who takes any pt of the trust premes 
 under any such appointmt as last afsd, shall be entled to any share in 
 the unappointed pt without bringing the pt so appointed to him or her 
 into hotch-pot : Provided also, that the trustee or trustees may upon 
 the request in writing of the sd wife during her life, and afterwards at 
 his or their discretion raise any pt or pts not exceeding in the whole 
 one-half of the then expectant presumptive or vested share of any child 
 of the assured under the trusts afsd, and apply the same for his or her 
 advancemt or benefit. 
 
 The statutory power of maintenance and education is to be applicable. 
 
 Subject, and without prejudice to the trusts afsd, the trust premes 
 are to be deemed pt of the estate of the assured. 
 
 The trustee or trustees shall have al)solute discretionary power at any 
 time — • 
 
 (1) To assent to any reduction of the principal sum assured, or other 
 modification of the policy, with a view to the diminution or extinction 
 of subsequent premiums. 
 
 (2) To assent to the applicon of any bonus with the like view. 
 
 The trustee or trustees shall not be under any obligation to keep the 
 policy on foot, or be responsible for any loss occasioned by its becoming- 
 void by any means. 
 
 As provided by the sd Act the assured may by any memorandum 
 under his hand appoint a trustee or trustees of the monies payable under 
 the policy, and from time to time appoint a new trustee or new trustees 
 thereof. 
 
 Sect. 11 of The Married Women's Property Act, 1882 (15 & 46 Vict., c. 7o}, 
 provides as follows : — 
 
 11. "A married -woman may by virtue of the power of making contracts 
 hereinbefore contained effect a policy upon her own life or the life of her 
 husband for her separate use ; and the same and all benefit thereof shall enure 
 accordingly. 
 
 "A policy of assurance effected by any man on his o^vn life, and exin-essod 
 to be for the benefit of his wife, or of his children, or of his wife and children, 
 or any of them, or by any woman on her own life, and expressed to be for tlie 
 benefit of her husband, or of her children, or of her husband and children, or 
 any of them, shall create a trust in favour of the objects therein named, and 
 the monies payable under any such policy shall not, so long as any object of
 
 300 
 
 POLICIES. 
 
 Form 238. I^he trust remains unperformed, form part of the estate of tlie insured, or be 
 
 " subject to his or her debts : Provided, that if it shall be proved that the policy was 
 
 effected and the premiums paid with the intent to defraud the creditors of the 
 insured, they shall be entitled to receive, out of the moneys payable under the 
 policy, a sum equal to the premiums so paid. The insured may by the policy, or 
 Ytj any memorandum under his or her hand, appoint a trustee or trustees of the 
 monies payable under the poKcy, and from time to time appoint a new trustee or 
 new trustees thereof, and may make provision for the appointment of a new 
 trustee or new trustees thereof, and for the investment of the monies payable under 
 any such policy. In default'of any such appointment of a trvistee, such policy, 
 immediately on its being effected, shall vest in the insured and his or her legal 
 l^ersonal rej^resentatives, in trust for the purj^oses aforesaid. If, at the time of 
 the death of the insured, or at any time afterwards, there shall be no trustee, 
 or it shall be expedient to apijoint a new trustee or new trustees, a trustee or 
 trustees or a new trustee or new trustees may ])e appointed by any court having 
 jurisdiction under the provisions of the Trustee Act, iSoO, or the Acts amending 
 and extending the same. The receipt of a trustee or trustees duly appointed, 
 or, in default of any such aiJiiointment, or in default of notice to the insurance 
 office, the receipt of the legal personal representative of the insured shall be a 
 discharge to the office for the sum secured by the policy, or for the value 
 thereof, in whole or in part." 
 
 The forms used for the purposes of this section vary considerably : those of 
 some companies being well expressed, and those of others the reverse. The 
 above [Form 238] can readily be altered to any form authorised by this 
 section. 
 
 It will be observed that the section jjrovides that the policy shall create a 
 trust in favour of the objects therein named, and some companies act on the 
 footing that these words render it necessary to give the proper names of the 
 objects ; but there seems no foundation for this notion. 
 
 In Be Adams Policy Trusts, 23 C. D. 525, a policy was effected under the 
 Married Women's Property Act, 1870, for the benefit of the assured's "wife A. 
 and the children of their marriage ;" and it was held, not without some 
 difficulty, that the proper construction was that the wife was to take for life, 
 with remainder to the children as joint tenants. 
 
 Torm 239. 
 
 Policy of 
 unlimited 
 "ComxJany. 
 
 Whas, proposal, &c., \_siiji)ya, Form 228.] 
 And Whas, paymt of premium, &c. \_supra, Form 228.] 
 NOW THIS POLICY WITNESSETH and declares that if, &c. 
 lAs ill Form 228.] 
 
 Then, and in such case, the funds and ppty of the co shall, according- 
 to the provisions of the eo's [deed of settlemt] be subject and liable to 
 ])ay and satisfy to the exs, &c, 
 
 [Another form is " Then, and in such case, the co will, out of its 
 funds and ppty, pay," &c., as in Form 228.] 
 
 Provided always that the funds and ppty of the co shall alone be 
 liable to answer and make g-ood all claims and demands under or by 
 virtue of this policy, and that no shareholder in the co shall in any case 
 be liable to contribute to the funds of the co more than the unpaid 
 pt, if any of his or her share or shares in the capital thereof [and that 
 after the transfer of any share has been duly registered in accordance 
 with the provisions of the sd deed of settlemt, the transferee shall be 
 answerable for the unpaid pt of any such share in exoneration of the 
 transferor,]
 
 PRECEDENTS. 301 
 
 It is well settled that a policy framed as above effectually limits tlie Form 239. 
 
 liability of the shareholders. Hallett v. Doiodall, 18 Q. B. 2 ; Lethbridge v. 
 
 Adams, 13 Eq. 5-17 ; Host's case, 1 C. Div. 307; Lindley, 378. In Mclver's case, 
 ubi supra, Giffard, L.J., was of opinion that the provision that the funds shall 
 be liable to pay effectually limited the liability, and that the proviso did not 
 carry the matter any further, i. e., was superfluous. 
 
 It is also settled that a policy so framed creates no lien or charge on the 
 property of the company, and accordingly that policy holders have no jiriority 
 over general ci-editors, or inter se. State Fire Insurance Co., 1 De G. J. & S. 
 634; Be International Society, Mclver's claim, 5 Ch. 421. 
 
 This policy is issued out of the life deiiartint of the co, and the funds Form 240. 
 and ppty of the co for the time being appropriated to the satisfon of ciau.se where 
 claims upon life policies, as specified in clause of the co's articles of several 
 association, shall alone he liable to pay and make o-ood all claims under 
 or by virtue of this policy. 
 
 Where a company has several branches, e.g., fire, life, and marine, the 
 i*egulations generally provide for keeping the funds of each branch separate ; 
 and in such case the policies should be framed accordingly. 
 
 CON'DITIONS 
 
 For Use in connection iviiJi tlic above Policies, 
 
 According to present practice the following are faii-ly liberal conditions ; Form 241. 
 
 biit there is a general tendency to increased liberality. That the conditions . 
 
 bind the assured, see Macdonald v. T/ie Law Union, L. E. 9 Q. B. ;528 ; ^.^^^'^^^^''f^®'^*^" 
 A J TTx 7 J 1 Ti T /-I ^oi ' tion and non- 
 
 Anderson v. Fitzgerald, 4 H. L. C. 484. disclosure 
 
 1. If the proposal and declon, on the l)asis of which a policy is effected, 
 contains any untrue statcmt, or fails to disclose any material fiict, the 
 policy shall l)e void. 
 
 The policies of almost all the British companies refer to a jjroposal, or some 
 other preliminary document, and make it the basis of the contract, and also 
 insert a condition as above. A policy so framed is voidable, if the declara- 
 tion or proposal contain a single misstatement, whether material or not, and 
 whether made fraudulently or innocently. 
 
 But of late years a good many companies have adopted qualifying con- 
 ditions, as below (2), which relax to some extent the extreme severity of the 
 foregoing condition ; and this relaxation is gradually extending. 
 
 2. Nevertheless, where a policy has endured for five years, it shall 1)0 When policy 
 indisputable and unchallengeable on any ground connected with such ^^'^ ^"^^^ ^' 
 proposal and declon, any error in age being dealt with in accordance with 
 condition 3. 
 
 Such a condition as the above adds considerably to the value of a policy, 
 whether regarded as an investment, security for money, or settlement : and 
 with more or less modification it is adopted by a good many companies. Some, 
 however, add the words, " except in case of fraud ;" but the addition goes far 
 to render the protection ostensibly conferred by the clause illusory ; for 
 persons dealing with the policy can never be certain that it does not suffer 
 from some latent flaw. 
 
 A few companies protect as from the date of the policy the interests of third
 
 ,302 POLICIES. 
 
 Form 241. parties ; and the value of this jDrotection cannot be overrated. The following' 
 is an example : — 
 
 " Notwithstanding the first condition, all policies shall so far as regards the 
 beneficial interests of third persons be indisputable and unchallengeable ; 
 and all policies whatsoever which shall have been in force for five years shall 
 be in like manner indisputable and unchallengeable : Provided, &c." [as to 
 error in age] . 
 
 Several companies use a condition to the effect that — " This policy is in- 
 disputable on the ground of any error in the proposal, any error in age being 
 
 allowed for in the manner stated in the th condition." Such a condition 
 
 is better than none ; but " error " could scarcely be held to cover fraud ; and 
 accordingly the policy cannot be relied on as indisputable. 
 
 Some companies make the policy indisputable as above, where it has endured 
 for five years, and the age of the life assured thereby has been admitted. This 
 condition is used where the jDolicy contains no provision as to error in age, 
 similar to condition 3. 
 
 Error as to g, jf the age of a person wliose life is assured exceeds that stated in 
 
 the proposal, the policy will not on that account be void, but such a sum 
 will be payable thereunder as would have been assured for the premium 
 actually pd if the age had been correctly stated. 
 
 This condition is adopted by several companies : some add the words " ex- 
 cept m case of fi-aud," but the addition is open to the objection referred to in 
 the note to condition 2. A few companies so frame the condition that it only 
 operates when the directors think fit, but such a provision is objectionable. 
 
 ^^V^^- 4. A policy will become void where a premium is not pd within one 
 
 calendar month after it becomes due ; but should the person whose life 
 is assured die within such calendar month, the ijremium, if unpaid, will 
 be deducted from the sum assured on settlemt of the claim. 
 
 Thirty days of grace is usual. 
 
 As to the circumstances in which a person paying the premium may obtain 
 a lien on the policy, see Leslie v. French, 23 C. D. 552. 
 
 Eenewal. 5, A policy which has become void for non-paymt of premium may 
 
 be renewed at any time within twelve calendar months after it becomes 
 void upon paymt of the premium in arrear with interest thereon at 
 the rate of 5 p. c. j)cr month [and upon proof being given to the satisfon 
 of the CO of the unimpaired health of the person whose life is assured]. 
 
 The conditions as to the revival of a lapsed policy vary much. In many 
 cases the condition as above allows of the revival of a policy within a specified 
 period on payment of the premium in arrear with a fine, and on proof of the 
 unimpaired health of the life. The period is usually three, six, or more com- 
 monly, twelve months from the lapse, and the fine is usually 10s. and sometimes 
 5s., or 20s. per cent, on the sum assured. Some companies are more liberal, and 
 instead of a per centage on the sum assured, charge interest (e.g., five per cent, 
 per annum, or five per cent, per month) on the premium in arrear. A few 
 companies do not require any proof of health on revival, but most do. Some 
 dispense with the proof upon the revival of a policy which has lapsed after 
 being in force for more than five years. 
 
 One important company allows a policy which has lapsed after being in force 
 for more than^re years to be revived within twelve months on payment of the
 
 PEECEDENTS. 303 
 
 overdue premium Avith interest at five per cent, per month thereon, hut only Form 241. 
 allows the revival of other policies upon payment of the overdue premium 
 with a fine of 10s. per cent, on the sum assured. 
 
 A few companies use conditions which prevent forfeiture without application 
 on the part of the assiu-ed. 
 
 Thus one office declares that non-payment of a premium within the days of 
 grace is not to void a policy " provided its surrender- value after deduction of 
 all debts in respect of unpaid premiums or otherwise (if any) is sufficient to pay 
 the premium in arrear, in which case the premiums shall be held to be a debt 
 upon the policy bearing interest at five per cent, per annum until paid. If, 
 however, the surrender-value subject to deduction as aforesaid be not sufficient 
 to pay the premium, [power to renew within thirteen months.] 
 
 Several offices provide, in the event of lapse, for the issue of a paid-up policy 
 for the equivalent of the surrender-value or for some other amount. Thus one 
 office provides that " if after the payment of five years' ordinary premium the 
 assured shall be unable to continue the assurance he may receive a free policy 
 for the full amount of the ordinary premiums paid, provided the application 
 for such free policy be made within thirty days from the time of the premium 
 (which he is unable to pay) becoming due." 
 
 The following is another form : 
 
 " In case of a lapsed policy the surrender-value at the time of lapse will 
 he allowed to the legal holder at any time within five years from the date of 
 lapse, the option being given, subject to the production of satisfactory proof of 
 the life being in good health, of receiving a paid-up policy in lieu of the sur- 
 rendei'-vakie." A good many offices now publish tables of surrender-value. 
 It is singular how much they differ. 
 
 G. Where an assurance is fur the whole term of life by a limtcT Non-forfeiture 
 number of premiums, or is made payable on the attainmt of a yiven age, °i endowments, 
 or at death if previous, then, if at any time after the assurance has been 
 in force for three years a premium is not pd within thirty days from the 
 day on -which it becomes due, and the person whose life is assured is 
 then li\dng, the policy shall not become wholly void, but shall remain in 
 force for a reduced amount, bearing such proportion to the principal sum 
 assured as the number of full years' premiums actually pd shall bear to 
 the nmnber of full years' premiums originally made payable, and thence- 
 forth the same shall Ijc exempt from premiums, and in the event of any 
 such reduction all additions by way of reversionary bonus (if any) in 
 respect of the policy shall be reduced in like proportion. This condition 
 is without prejudice to Condition 5. 
 
 A considerable number of companies act on the rule laid down in the above 
 condition and frame their policies or conditions accordingly. And the condi- 
 tion is so obviously fair that it seems likely to be generally adopted. It is an 
 importation from Amei'ica. 
 
 7. A premium will not be considered as jDd, unless a printed official Receipts, 
 receipt signed by a director and countersigned by the secretary or by one 
 
 of the agents of the co shall have been given for the same. 
 
 A condition as above is very commonly used. 
 
 8. A jjerson whose life is assured may reside in any pt of Europe, Kesidences and 
 Madeira, the North-American colonies, the Australian colonies, Tasmania, *'"^"^'6^- 
 
 New Zealand, the South African colonies, and any pt of the world
 
 304. 
 
 POLICIES. 
 
 Form 241. (except Asia) north of 33° N. lat. and south of 32° S. lat., and may 
 travel l)y sea or land within these limits, and also, if not of seafaring- 
 occupation, may pass in first-class steam or sailing vessels from any 
 place within the northern limits to any place within the southern limits, 
 and vice versa. But a policy shall be void if a person whose life i.s 
 assured thereby shall (without previously obtaining the licence of the 
 co) go beyond the afsd limits, except for the ppose of passing as above 
 mentioned. Permission will be granted on paymt of such additional 
 premium as the co may require. 
 
 The limits for residence and travel vary considerably. Some companies use 
 very strict conditions, but most companies are much more liberal. 
 
 As regards residence : 
 
 Within 33° of the equator is a common limit. Some comj^anies give liberty 
 to visit and reside in any part of the world (Asia excepted) situate to the north 
 of 35°[or, 33"] N. Lat., and south of 30° \_or, 31"] S. Lat., and to travel by sea ' 
 or land within those limits. Other companies permit the assured, not toeing" a 
 seafaring person, during peace to proceed to and reside in any part of Europe, 
 the Mediterranean, the Canary Islands, the Azores, and North America north 
 of 33° N. Lat. 
 
 Some companies permit the life assured to proceed to and reside in any part 
 of Europe, Madeira, the Azores, the Canary Islands, the Islands of the Medi- 
 terranean, Egypt, north of 25° N. Lat., the Holy Land, Australia, New Zealand. 
 Cape Colony, Natal, and America, north of 35° N. Lat., without extra in-emium. 
 
 One company, which does a considerable business, permits the life to proceed, 
 without extra jjremium, and reside in, any part of Europe, with the exception 
 of such parts as are included within a right angle formed Vjy two lines sxipjiosed 
 to be drawn from Eagusa, in Dalmatia, the one due south, and the other due 
 east. This is singularly strict. 
 
 Another important office jjermits all persons not seafaring by occupation 
 diiring peace to go to reside in or return from any part of the woi'ld north of 
 33° N. Lat., or south of 30° S. Lat., or any place on the African coast of 
 the Meditei-ranean, Egypt, the Holy Land, Madeira, the Canary Islands, the 
 British Possessions in South Africa, except Mauritius, and the Australian 
 Colonies, without extra premium. 
 
 As to travel : 
 
 Most companies permit travelling within the prescribed limits free. A few 
 allow travelling in any part of the world. Some so frame their conditions 
 that, although residence abroad is permitted a licence must be obtained for the 
 journey there. But the conditions of a good many of the best offices permit 
 the journey from the northern to the southern limits without licence or extra 
 premium. Occasionally, however, it is provided that the life must not remain 
 in any particular country within the prohibited limits for a longer time than 
 one calendar month. See further the note to condition 2. 
 
 Occupation. 9, A policy will be void if the person whose life is assured shall with- 
 
 out the permission of the directors first obtained, voluntarily and know- 
 ingly go within the limits of actual military operations or occupation 
 in time of war or foreign insurrection (his previous usual place of resi- 
 dence not having been within such limits). 
 Occasionally a condition as above is inserted. 
 
 10. A policy shall be void if a person whose life is assured thereby 
 
 Military and 
 
 proceedings. shall engage in any military or naval sei-vice (except the volunteer or
 
 POEMS. 30f 
 
 militia service), or being a military or naval person shall be engaged or Form 241. 
 employed in any military or naval capacity daring actual war, or being a 
 seafaring person shall go upon the sea in the course of his occupation, 
 unless the permission of the co shall have been previously obtained. 
 Such permission will be granted on the paymt of such additional pre- 
 mium as shall be required by the co. 
 
 The above condition is generally used with more or less modification. 
 
 As regards military and naval service, the following are some of the alterna- 
 tive forms in use by different comi^anies ; — 
 
 (a.) Shall be engaged or emi^loyed on actual service in any military or naval 
 capacity. 
 
 (b.) Shall be engaged in any military, naval, coastguard or preventive ser- 
 vice out of the United Kingdom. 
 
 (c.) Shall die in consequence [this seems fair^ of having been engaged or 
 employed in actual service in any military or naval capacity. 
 
 (cl.) If the life, being or becoming a military man, shall at any time enter 
 into active military service out of the United Kingdom. 
 
 (e.) Shall die in or in consequence of any actual naval or military service 
 (service in local militia or volunteer corps within the United Kingdom 
 excepted). 
 
 Formerly the policies of a good many companies contained provisions in 
 regard to other hazardous occupations besides naval and military, but they are 
 noAv rarely found. However, one company avoids its jjolicies if the life " en- 
 gages in any occupation involving any unusual risk to life or health," and 
 another avoids its policies if the life " engages in any hazardous occupation, 
 such as that of miner, engine-driver, railway guard, or publican, unless with 
 the previovis permission," &c. And the leading American companies which do 
 business here insert in their policies a long list of hazardous occupations. 
 
 11. So for as regards the beneficial interests of third parties a policy Protection of 
 shall not become void under the 8th, *.)th, or 10th condition, provided *^'"'^ parties. 
 such additional premium as the directors require be pd ^vithin fourteen 
 
 days after the fact which, l)ut for this condition, would have caused the 
 forfeiture of the policy comes to the knowledge of such parties, and this 
 jirovision shall hold good notwithstanding the death of the person whose 
 life is assured before such notice shall have been given. 
 
 This very desirable condition is occasionally found, but the great majority of 
 the companies either leave conditions 8, 9 and 10 unqualified, or adopt a condi- 
 tion as follows : — 
 
 12. After a policy has remained in force for [five] years of the jierson Further pro- 
 Avhose life is assured (not being of a military or seafaring occupation) *|'*:*'i|'" ^'^ 
 has attained the age of [thirty], it shall thenceforth be free from all 
 restrictions as to residence, travel, or occupation, provided extra pre- 
 miums have not been incurred during the preceding period. 
 
 A condition as above is now very commonly adopted. Some companies go 
 even further, and free a policy at any time from all conditions as to residence 
 and travel in consideration of a single extra jiremium of small amount {e.g., 
 10s. or 5s. per cent, on the sum assured) and on evidence being adduced that 
 there is no prospect of the life going beyond the limits. And other companies 
 free the policy in like manner, upon such evidence being adduced, without 
 requiring an extra premium. 
 
 X
 
 306 
 Form 241. 
 
 POLICIES. 
 
 One leading office inserts in all its ordinary policies a provision that " The 
 person whose life is assured by this policy may, without payment of any extra 
 premium, proceed to and reside in any part of the world, or engage in any 
 trade, occupation or profession," and only inserts limits of travel, &c., in special 
 circvimstances. 
 
 Suicide, jg_ \ policy will become void if the person whose life is assured shall 
 
 "' ' die by duelling, or by his own hands, or by the hands of justice, within 
 
 thirteen calendar months from the date thereof, except to the extent of 
 
 any &o?k^//^/(? interest which any other person may have acquired therein. 
 
 Most companies adopt a condition in reference to death, as above. A few 
 omit any reference to duelling as obsolete. The limit of time fixed by some 
 companies is six months : thirteen months is a common limit, but five years is 
 adopted by several companies. A few companies place no limit as to time, but 
 protect third pai'ties. The words "die by his own hands," and "commit sui- 
 cide," extend to all cases of voluntary self-destruction, except, perhaps, where 
 the life is incapable, by reason of insanity or otherwise, of understanding the 
 consequences of his act. Borradaile v. Hunter, 5 M. & G. 639 ; Glift v. Schwahe, 
 3 C. B. 437 ; 17 L. J. C. 8. Some companies add the words "sane or insane" 
 after the words " by his own hands." These words seem to cover every case of 
 self destruction. 
 
 Any legal or equitable charge or assignmentwould constitute a 6o7i«/cle interest. 
 White V. British Empire Co., 7 Eq. 394.. And the exception operates even where 
 the estate of the life assured benefits thereby, and as regards an interest vested 
 in the company, e.g., as mortgagee. See the above case, and Solors. Gen. Soc. 
 V. Lamb, 2 De G. J. & S. 251. 
 
 Having regard to these cases some companies provide that in the event of 
 suicide the policy shall be void so far as any money is payable thereunder to or 
 for the benefit of the estate of the person so committing suicide, but give pro- 
 tection to bond fide interest of other persons. At least one company provides 
 that in the event of the policy Ijecoming void under a condition as above, the 
 company will return to the assured the gross amount of the premiums paid. 
 
 The conditions adopted by several companies only preserve the interests of 
 third parties where they have been acquired for valuable consideration. This 
 seems reasonable enough, but some companies require that notice of the exist- 
 ence of the interest shall be given to the company before the death: this 
 seems objectionable. 
 
 Instalments. 14. Where the premium is payable by quarterly or half-yearly instal- 
 
 mts and the person whose life is assured dies before the paymt of all 
 the instalmts for the current year of assurance have become due and 
 been pd, the unpd instalmt or instalmts shall be deducted from the sum 
 assured. 
 
 A condition as above is very commonly used. It does not prevent forfeiture 
 where an instalment is not duly paid. Phcenix Co. v. Sheridan, 8 H. L. 745. 
 Query, whether it would not be fairer to provide that for the purposes of 
 conditions 4, 5, and 7, each instalment shall be deemed a premium. 
 
 Proof of death, 
 
 iiC. 
 
 15. On the occuiTence of the event on which the sum assured is to 
 become payable, such evidence must be produced as the directors require 
 to establish the claim, and unless the age of the person whose life is 
 assured shall have been previously admitted, proof thereof must be 
 furnished
 
 FOEMS. 
 
 307 
 
 This means such evidence as may reasonably be required. Braunstein v. Form 241. 
 Accidental Death Co., 1 B. & S. 782 ; Moore v. Woolsey, 4 El. & Bl. 254. 
 
 16. AMiere a policy is subject to any trust, or shall have l)een assigned Trustees 
 by way of mtge or other-nise, the receipt of the trustee, mtgee, or ^'^^^^^'^^ 
 assignee for the money which may become payable in respect of such 
 policy shall be an eft'cctual discharge to the co. 
 
 A condition as above is very commonly inserted, but it seems wholly 
 unnecessary. Sections 22 and 3G of the Conveyancing Act, 1881, appear to give 
 the requisite powers to trustees and mortgagees ; and see also the Policies of 
 Assurance Act, 1SG7 (30 & 31 Vict. c. 144) ; and the Judicature Act, 1873, 
 s. 25 (G). 
 
 The following condition is more practically useful : — 
 
 " Where a policy is held in trust, the trustees or trustee in order to prevent 
 or diminish loss by forfeiture, or apprehended forfeiture, may deal with it in 
 such manner as they or he think best in the interests of the beneficiaries, and 
 in particular may surrender it, or may accept a paid-up policy in substitution, or 
 may assent to a reduction of the sum assured, or other modification of the 
 policy, with a view to the reduction or extinction of subsequent premiums." 
 
 17. Where a policy becomes void all premiums and other monies Forfeitm-e of 
 which shall have been pd to the co in respect thereof shall be forfeited P^''^'^^'^'^^- 
 to the CO, and all claims in respect of the policy shall determine except 
 
 as otherwise herein provided. 
 
 This is'a usual condition, and would seem to be effectual. Wilson v.Duchett, 
 3 Burr. 1361 ; but the Court might impose terms where the company sues to 
 have the policy set aside. Whittingham v. Thornborough, 2 Vex-n. 206 ; Da Costa v. 
 Scandret, 28 W. 170. 
 
 18. If the CO shall be advised that there is any doubt or difficulty as Trustee Relief 
 to the title of any person clamiing paymt of the monies assured by a '^^*- 
 I^olicy or as to the discharge to be given for the same the co shall be at 
 
 liberty to declare that it holds such monies in trust for the person or 
 persons entled thereto, to the intent that the co may thereupon have the 
 remedies and benefits pro\'ided by the Trustee Relief Act. 
 
 Several companies use a condition as above, and it may sometimes be useful. 
 In the absence of such a condition, a company can only pay into Court under 
 the Trustee Belief Act, where there is some trust affecting the sum assured, or 
 where sub-sect. G of s. 25 of the Judicat\u-e Act, 1873, applies. Sutton's Ti-vMs, 
 12 C. D. 175 ; Re Haycock's Policy, 1 C. D. 611 ; Matthews v. Northern Assurance 
 Co., 9 C. D. 80. 
 
 Miscellaneous Coxditioxs. 
 
 Such bonuses or proportions of profit as shall from time to time be As to appli- 
 appropriated to this policy may at the option of the assured be applied, ^'^*"'" °^ 
 (a), as a bonus added to the sum hby assured and payable therewith 
 upon the death of the person whose life is assured ; or (h), to the reduc- 
 tion of the premiums payable hereunder ; or (c), in making the amount 
 hereby assured payable during the lifetime of the person whose life is 
 
 X 2
 
 308 
 Form 241. 
 
 Anotlier. 
 
 Limitation. 
 
 POLICIES. 
 
 assured on his attaining a given age (such age to be fixed by the actuary for 
 the time being of the co), nevertheless all bonuses appropriated to this 
 policy will be applied in the last-mentd manner, unless notice in writing 
 selecting one of the other modes of apjilicon of such bonus be sent to the 
 CO within three calendar months fi"om the declon of the bonus. 
 
 Most companies give the options referred to in the above condition, and a 
 few insert conditions to that effect. The following is another form, which 
 is occasionally used. 
 
 All bonuses or proportions of profit declared upon any policy will be 
 applied in such a manner that the amount assured will become payable 
 during the lifetime of the person whose life is assured, on his or her 
 attaining a given age, unless notice in writing selecting some other mode 
 of applicon be given to them within three calendar months from the 
 declon of the bonus. 
 
 The monies assured by a policy shall not carry interest as against the 
 CO, and the co shall cease to be liable for such monies if the same be not 
 claimed by or on behalf of the person or persons entled thereto within 
 six years next after the death or other event on proof of which the same 
 were to be pd. 
 
 A condition as above is occasionally used. As regards interest, it is unne- 
 cessary, for no interest is payable, unless the money is wrongfully withheld. 
 Webster v. British Empire, 15 C. D. 169. As regards the six years' limit, it 
 seems a reasonable provision ; for in the absence thereof the Statute of 
 Limitations would apparently not begin to run until proof of death has been 
 admitted, and the limit would be twenty years. 
 
 Surrender of The policy must be given up to the co upon paymt of the amount 
 pohcy and loss. ^^^^ thereon, but in case of its loss or destruction, such evidence thereof 
 
 and such indemnity shall (in lieu of production or delivery), Ije given as 
 
 shall be satisfactory to the directors. 
 
 The above condition is used by a few companies, but it appears only to express 
 what the law implies. Where the policy has been lost, the monies are paid 
 by the order of the Court, the company is :iot entitled to any indemnity. 
 England v. Lord Tredegar, 1 Eq. 314. 
 
 Surrender 
 value. 
 
 Holders of policies of assurance for the whole term of life by equal 
 annual pajmits, or of policies payable on the attainmt of a given 
 age or death, if previous, who may wish to surrender after paymt of 
 three full years premiums are guaranteed a return of not less than two- 
 fifths of the ordinary premiums pd if the assurance be "with profits,'* 
 and l)onus has not been guaranteed and one-third of the ordinary pre- 
 miums pd if the assurance be "without profits," provided applicon 
 for such returns be made before the expiration of three calendar months 
 fi'om the date on which a premium has fallen due. This guarantee does 
 not extend to a return of extra premiums of any kind. 
 
 Very few companies use any such condition as the above ; Init a good many 
 have taken of late to publishing tables of surrender values.
 
 FOEMS. 309 
 
 The Co, Limtd. Form 242. 
 
 THIS POLICY OF INSURANCE WITNESSETH that Fire insurance. 
 
 (hereinafter called the insured) having pd to the Co, Limtd (here- 
 inafter caUed the co), the sum of for insuring against loss or damage 
 
 by fire as hereinafter mentd, the ppty hereinafter described in the several 
 sums following, namely : — 
 
 \_Here insert jmrtkulars.'] 
 
 The CO agrees with the insured (but subject to the conditions at the 
 back of this policy which are to be taken as pt of this policy) that if 
 the ppty herein described, or any pt thereof, shall be destroyed or 
 
 damaged by fire at any time between the day of and the 
 
 day of both inclusive or at any time after^^■ards, so long as the 
 
 insured, or his, or her, or their representatives in interest shall pay to the 
 CO, and it shall accept the sum required for the renewal of this policy, 
 
 on or before the day of in each succeeding year, the co will 
 
 pay or make good all such loss or damage to any amount not exceeding 
 in respect of the several matters herein specified the sum set opposite 
 
 thereto respively, and not exceeding in the whole the sum of /. 
 
 \_If iiccessary, Insert proviso timitimj liatjUitij as at p. 300.] 
 
 In Witness, &c. 
 
 A policy of fire insurance is a contract of indemnity. See ColUngridge v. 
 Royal Insurance Co., L. R. 3 Q. B. 173; Daniell v. Tihbitts, 5 Q. B. D. 560; 
 Reynolds v. Arnold, 10 Ch. 386. As to the company's right of subrogation, see 
 Castellan v. Preston, 11 Q. B. Div. 380; 49 L. T. 29^ and cases there cited. 
 
 The conditions within referred to. 
 The following are the conditions in general use : — 
 
 1. Any material mis-description of any of the ppty proposed to be hby Fire iiwurance 
 insured, or of any building or place in which ppty to be so insured is ^"'^ ^ ^*'"''' 
 contd, or any mis-statemt of or omission to state any fact material to be 
 
 known for estimating the risk renders this policy void as to the ppty 
 affected by such mis-description, mis-statemt, or omission respively. 
 
 See Universal Iron Tariff Co., 19 Eq. 494, and cases there cited. 
 
 2. If, after the risk has been undertaken by the co, anything whereby 
 the risk is increased be done to ppty hby insured, or to, upon, or in, any 
 building hby insured, or any building or place in which ppty hby 
 insured is contd, or if any ppty hby insured be removed fi'om the 
 building or place in which it is herein described as being contd, without, 
 in each and every of such cases, the assent or sanction of the co signified 
 by endorsemt hereon, the insurance as to the ppty affected thereby ceases 
 to attach. 
 
 See stokes v. Cox, 1 H. & M. 533; Barrett v. Jermy, 3 Ex. 535, as to the 
 construction of the earlier part of this condition. 
 
 The condition may be waived by accepting a premium after notice of breach. 
 Wing V. Harvey, 5 De G. M. & G. 205.
 
 310 POLICIES. 
 
 Form 242. 3. This policy does not cover ppty held in trust or on commission 
 unless expressly described as such ; nor china, glass, looking glasses, 
 jewels, clocks, watches, trinkets, medals, curiosities, manuscripts, 
 governmt stamps, prints, paintings, drawings, sculptures, musical, 
 mathematical, or philosophical instrumts, patterns, models, or moulds, 
 unless specially mentd in the policy; nor deeds, bonds, bills of 
 exchange, promissory notes, money, securities for money, or books of 
 account ; nor gunpowder ; nor loss or damage by fire to ppty occasioned 
 by or happening through its own spontaneous fermentation or heating, 
 or by or through iuTasion, foreign enemy, riot, or civil commotion ; nor 
 loss or damage by explosion, except loss or damage by explosion of gas in 
 a building not forming part of any gas works ; or of explosion of 
 domestic boilers, and domestic heating apparatuses. 
 
 See Waters v. Monarch Co., 5 E. & B. S/O, for case of policy on goods in trust 
 or on commission ; and see North British Co. v. Moffatt, L. E. 7 C. P. 25, for 
 case of insurance on goods " in trust or on commission, for which the assured 
 is responsible." It was there held that after sale the goods being at the risk 
 of the purchasers, were no longer covered. Se.e also North British v. London 
 Liverpool Co., 5 C. Div. 5G9. As to gas explosions, see Stanley v. Western Co., 
 L. R. 3 Ex. 71. 
 
 4. This policy ceases to be in force as to any ppty hby insured which 
 shall i^ass from the insured to any other i:)erson otherwise than by will or 
 ojjeration of law, unless such policy be assigned or transferred in con- 
 formity with the regulations for the time being of the co. 
 
 As the contract is one of indemnity the insured cannot recover for loss sus- 
 tained after he ceases to be interested. But an unpaid vendor can recover 
 and is not liable to account to the purchaser. Poole v. Adams, 12 W. E.. 683 ; 
 Bayner v. Preston, 18 C. Div. 10. But if the office pays the amount and the 
 sale is carried out the oifice can recover from the vendor. Castellan v. Preston, 
 49 L. T. 29. 
 
 f). On the happening of any loss or damage by fire to any of the ppty 
 hby insured, the insured is forthwith to give notice in writing thereof to 
 the CO, and within fifteen days at latest to deliver to the co as parlar an 
 account as may Ije reasonably practical)le of the several articles or 
 matters damaged or destroyed by fire, with the estimated value of each 
 of them respively, having regard to their several values at the time of 
 fire, and in support thereof to give all such vouchers, proofs, and ex- 
 planations as may be reasonably required, together with, if required, a 
 statutory declon of the truth of the account ; and in default thereof no 
 claim in respect of suc^h loss or damage shall be payable until such 
 notice, accounts, proofs, and explanations respively are gi^■en and pro- 
 duced, and such statutory declon, if required, is made. 
 
 See Goulstone v. The Royal Insurance Co., 1 F. & P. 27G ; Strong v. Harvey, 3 
 Burg. 301.. 
 
 0. If the claim be in any respect fraudulent, or if any false statutory 
 declon ])e made in support thereof, or if tlie fire was occasioned by
 
 FOEMS. 311 
 
 or tlirongli the procuremt or connivance of the insured, all benefit under Form 212. 
 this poHcy is forfeited. — — • 
 
 Cha2miaii v. Pole, 22 L. T. N. S. 306 ; Haigh v. De la Cour, 3 Camp. 319. The 
 policy covers loss resulting from the negligence of the inaui-ed if there is no 
 fraud. Dixon v. Sadler, 5 M. & W. 405 ; Jameson v. Boyal Insurance Co., L. E. 
 7 Ir. C. L. 12G. 
 
 7. The CO may, if it think fit, reinstate or replace ppty damaged or 
 destroyed instead of paying the amount of the loss or damage, and may 
 join with any other co or insurers in so doing in cases where the ppty is 
 also insured elsewhere. 
 
 Sec. l-i Geo. III. c. 78, whereby any person interested may insist on having 
 the policy money applied in reinstating the property. The Act is general; Ex 
 parte Gorely, 1 D. J. & S. -177. 
 
 .s. On the happening of any loss or damage by fire to any ppty in 
 respect of which a claim is or may be made under this policy, the co, 
 without being deemed a Avrong doer, may by its authorised officer and 
 servants enter into the building or place in which such loss or damage 
 has happened, and for a reasonable time remain in possession thereof 
 and of any ppty hby insured which is contd therein, for all reasonable 
 pposes relating to or in connection with the insurance hby effected, and 
 this policy shall be evidence of leave and license for that ppose. 
 
 This condition does not authorise a forcible entry. Eswick v. Hawlces, 18 
 C. D. 199. 
 
 9. If at the time of any loss or damage l:)y fire happening to any ppty 
 hby insured there be any other subsisting iiisurance or insurances, 
 whether effected by the insured or by any other person, covering the 
 same ppty, this co shall not be lial)le to pay or contribute more than its 
 rateable proportion of such loss or damage. 
 
 The meaning of this condition is far from clear. In North British Co. v. 
 London Liverpool Co., 5 Ch. 577, Jessel, M. K., said that the word "property "in 
 the conditions means the interest of the assured, and was of opinion that the 
 condition " never could have been meant to apply for example to the cases of a 
 tenant for life and remainderman, or a first mortgagee and second mortgagee, 
 both insuring the same goods. You must read the condition in a sensible 
 way and not assume that these great companies intended to entrap their policy 
 holders and to destroy the value of the contract of indemnity by reason of 
 the accidental contract of somebody else." See' also Castellan v. Preston, 11 
 Q. B. Div. 380 ; 49 L. T. 29 ; Reynard v. Arnold, 10 Ch. 386. 
 
 10. In all cases where any other subsisting insurance or insurances, 
 whether effected by the insured or by any other person, co\'ering any 
 ppty hby insured, either exclusively or together with any other ppty in 
 and subject to the same risk only, sliall be subject to average, the 
 insurance on such ppty under this policy shall be subject to average in 
 like manner. 
 
 See infra, p. 312, the conditions of average. North British Co. v. London- 
 Liverpool Co., ubi supra.
 
 312 
 
 POLICIES. 
 
 Form 242. 11. If any difference sliall at any time arise between the co and the 
 insured or any claimant under this policy, as to the amount of any loss 
 or damage by fire, or as to the fulfilmt or non-fulfilmt of any of the 
 conditions herein set forth, or as to any question, matter, or thing con- 
 cerning or arising out of this msurance, every such diflFerence, as and 
 when the same arises, shall be referred to the arbitration and decision of 
 two indifferent persons, one to be chosen by the pty claiming and the 
 other by the co, or, in case of disagreemt between them, then of an 
 umpire to be chosen by the arbitrators before entering vn the reference ; 
 and the costs of the reference shall be in the discretion of the arbitrators 
 or umpire, as the case may be vrho may ascei"tain, &c. [_see supra, p. 21], 
 and the obtaining of such award shall be a condition precedent to the 
 commencemt of any action or other proceeding upon this policy, and the 
 co shall only be lial)le for the amount awarded. 
 
 Arbitration clauses are commonly inserted in fire policies. 
 
 12. In all cases where this policy is void or has ceased to be in force 
 under any of the foregoing conditions, or the regulations for the time 
 being of the co, all monies pd to the co in respect thereof will be 
 forfeited. 
 
 The following are the conditions of average commonly used : — 
 
 Average 1. It is hby agreed and declared that whenever a sum insured is 
 
 declared to be subject to the conditions of average if the ppty so covered 
 shall, at the breaking out of any fire, be collectively of a greater value 
 than the sum insured thereon, then this co shall pay or make good such 
 a porportion only of the loss or damage as the sum so insured shall bear 
 to the whole value of the sd ppty, at the time when such fire shall first 
 happen. 
 
 2. But it is at the same time declared and agreed that if any pjoty in- 
 cluded in such average shall, at the breaking out of any fire, be insured 
 by any other policy in this or any other office, whether subject to average 
 or not, Avhich shall apply to pt only of the buildings or places, or of the 
 ppty to which such average extends, then this policy shall not cover the 
 same, except only as regards any excess of value beyond the amount of 
 such more specific insurance, which sd excess is declared ti) be under the 
 protection of this policy and subject to average as afsd. 
 
 3. And it is further declared and agreed that if the assured shall 
 claim under this policy for loss or damage to ppty, embraced in the terms 
 of any average i)olicy, extending as well to other buildings, or places, or 
 to other j^pty not included in the terms of this insurance, and if at the 
 breaking out of any fire, there shall not be any ppty in such other 
 l)uildings or places, or any such other ppty actually at risk to be j^ro- 
 tected by such policy, then, so far as regards the settlemt of any clann 
 under this policy, the terms and liability thereof shall Ije held to be 
 concuiTent in all respects with those of such other policy. 
 
 conditions.
 
 FORMS. 313 
 
 The following condition is generally used as regards agricultural produce : — Form 242- 
 
 If the sum insured on agricultural produce, either separately or in one 
 amount with other ppty, shall, at the breaking out of a fire, be less 
 than three-fourths of the value of all the ppty insured in that amount, 
 then the insured shall be considered as his own insurer for the difference 
 between the sum insured and the fall value of the ppty insured at 
 the time of the lire, and shall bear a rateal)le proportion of tlie loss 
 accordingly. 
 
 Besides the abov^e, policies on agricultural produce generally contain certain 
 special conditions. 
 
 The following condition is sometimes used : — 
 
 No insurance proposed to the co is to be considered in force until the 
 premium is actuaUy pd. No receipt for any premium of insurance shall 
 be valid if available for any ppose whatever, unless it be upon the 
 printed office form and signed by one of the clerks or agents of the co ; 
 and any condition or proviso contd in or indorsed upon, or refcri'cd to 
 in any such receipt, shall Ije taken as j^t of this policy. 
 
 Whas , liei'cinafter called the insured, desires to effect an insur- Form 243. 
 
 ance with the Co, limtd (hereinafter called the co), as hereinafter ex- ^^cident 
 
 pressed, and has pd to the co the sum of premimn for such insurance 
 
 uutil the day of . 
 
 NOW, THEREFORE, THIS POLICY WITNESSETH and declares 
 that if at any time within one year from the date hereof or at any time 
 afterwards, so long as the insured shall pay and the co shall accept the 
 sum required for the renewal of this policy, on or before each succeeding 
 
 • day of , the insured shall sustain any personal injury caused 
 
 by accident, and the direct effect of which injury shall either cause the 
 death or the permanent total disablemt (as defined on the back hereof) 
 of the insured, then the co shall pay to the insured, or to his leg. per. 
 
 reps., the full sum of within one calendar month after satisfactory 
 
 jiroof of such death or disablemt shall have been furnished to the co : 
 Provided that such death or disablemt takes place Avithin three calendar 
 months from the date of the accident occasioning the same : Or, if the 
 insured shall sustain any personal injury, caused as afsd, which shall 
 occasion permanent partial disablemt (as defined on the back hereof), 
 
 then the co shall pay to him the sum of within one calendar month 
 
 after satisfactory ])roof of such disablemt shall have been furnished to 
 the CO, and if such injury does not entitle the insured to the compensa- 
 tion for permanent, total, or partial disablemt, as above provided, but 
 shall, independently of all other causes, immediately and totally disable 
 and prevent him from attending to business of any kind, then com- 
 
 jiensatiou shall l)e pd to him at the rate of per week for the period 
 
 of such continuous total disablemt as shall immediately follow the sd 
 
 accident and injury : Or, at the rate of , so long as he shall be 
 
 thereby rendered partially unable to attend to business : Put the period
 
 314 
 
 POLICIES. 
 
 Form 243. during wliicli conipensatiou for total or partial temporary disablcmt oi 
 l)otli is to be pd shall uot, for any single accident, exceed t\Yenty-six 
 consecutive weeks from the date thereof. 
 
 This policy shall be subject to the conditions indorsed hereon, which 
 are to be considered pt of it. 
 
 In witness, &c. 
 
 The following are the principal schemes of general accident which prevail in 
 the United Kingdom : (a) as above a lump sum at death or permanent disable- 
 ment [infra, p. 317], and a weekly allowance for partial disablement ; (6) a lump 
 sum at death, a lump (loss) sum for permanent disablement, and a weekly- 
 allowance for temporary disablement ; (c) a lump sum for death, and a weekly 
 allowance for disablement whether total or partial. 
 
 In the case (c) " total disablement " is declared to mean " an injury i^revent- 
 ing the claimant from attending to or superintending any portion of his busi- 
 ness," and " partial disablement" is declared to mean "when the claimant is 
 so injured or has so far recovex'ed as to be able to transact some portion of his 
 business but not the whole." 
 
 Besides insuring as above accident companies commonly issue policies insuring 
 (a) against fatal accidents only, (b) against non-fatal accidents only, (c) against 
 railway accidents only [m/Va, p. 317], (d) against marine risk [infra, i:>. 317], 
 (o) for a journey, for a term of years, for a short period. The above form can 
 be readily altered so as to suit their various cases. 
 
 Form 244. 
 
 Notice of 
 change of 
 Address. 
 Payment of 
 premium. 
 
 "When liolicy 
 void. 
 
 The conditions within referred to— 
 
 1. Due notice shall be given by the insured to the co at its chief 
 office of any cliange during the continuance of this policy of his name, 
 residence, and occupation. 
 
 2. The premium for the renewal of tliis policy must be paid within 
 fourteen days from the expiration of each year of insurance, otherwise 
 the policy will be void ; but should any accident occur within such 
 fourteen days, compensation will be payable as if the accident had 
 occurred within such year, unless notice of discontinuance shall have 
 been given by the co or the insured jorior to the accident. 
 
 3. This policy shall be void (a) if the declon, upon the basis of which 
 this pohcy has been granted, contains any untrue statemt, or foils to 
 disclose any material fact ; or (b) if this policy or any renewal thereof 
 has been obtained through misrepresentation or concealmt by the in- 
 sured ; or (r) if in any statemt or declon made in support of any claim for 
 compensation, or in the information given in respect thereof, there shall be 
 any false statemt, suppression, or concealmt ; or (d) if the assured shall 
 become of intemperate habits, or at any time engage in any occupation 
 other than that specified in the afsd declon, and thereby in the opinion 
 of the directors of the co increase the risk insured under this policy, and 
 if such increased risk be not accepted and is insured by the co ; or (e) 
 if the insured shall not use all due diligence for his personal safety ; or if 
 (/) the iusui'ed shall travel and be l)eyond the limits of Europe, or shall 
 embark in any vessel with the intention of going beyond such limits : 
 And if the policy becomes void under this condition, all premiums in 
 respect thereof shall be forfeited to the co. 
 
 Some companies give liberty to travel for an extra premium.
 
 FOE^IS. 315 
 
 4. No claim shall be made mider this policy for any injury from any Form 244. 
 accident unless such injury shall be caused by some outward and visible Concluded 
 means of -which proof satisfactory to the co can be furnished ; and this accidents. 
 insurance shall not extend to death by suicide, whether felonious or 
 otherwise, or to any injury, whether fatal or otherwise, caused ])y or 
 
 arising from natural disease, or happening whilst the insured is inca- 
 pacitated ])y disease or weakness, or exhaustion consequent upon 
 disease, or to any injury, whether fatal or otherwise, caused by any 
 medical or surgical treatmt or operation rendered necessary by 
 disease, or to any death or disablcmt arising from disease, although 
 such disease may have been brought on or accelerated by accident, 
 or to any injury, Avhether fatal or otherwise, caused by duelling or 
 figliting or any other Ijreach of the laws on the pt of the insured, or liy 
 l^oison or intentional self-injury, or by war or invasion, or by civil or 
 seditious or popular riot, or attack or l)y assault, or to any injury, 
 whether fatal or otherwise, happening while the insured is under the 
 influence of intoxicating liquor or drug, or in a state of insanity, tem- 
 porary or otherwise, or occasioned to the insured by his tra^■elling l)y 
 railway in a carriage diflFerent from those provided for the conveyance of 
 passengers, or by his entering or leaving a carriage of a train in motion 
 or attempting so to do, or otherwise by his acting in violation of the bye- 
 laws of any railway co, or whilst riding races or steeple chases or generally 
 l)y his voluntarily exposing himself to any unnecessary danger or peril. 
 
 • As to what is " an accident/' see Sinclair v. Maritime Passenger Co., 30 L. J. 
 Q. B. 77. 
 
 As to " eijileptic or otherfits " sometimes mentioned, see Shilling v. Accidental 
 Death Co., 1 F. & F. IIG. As to "wilful exposm-e to unnecessary danger," see 
 Mair v. Railway Passengers Co., 39 L. T. 3.'3(3. As to " intoxication," see the 
 case last-mentioned. As to words " wholly disabled from attending to his usual 
 biisiness," see Hooper v. Accidental Death Co., 5 H. & N. 54G ; Sutton v. Acci- 
 dental Death Co., 17 C. B. N. S. 122; 31 L. J. C. S. 28 (rupture); Trew v. 
 Railway Passengers Co., G H. & N. 839; andEei/noZds v. Accidental Death Co., 22 
 L. T. N. S. 820 (drowning). See also Lawrence v. Accidental Death Co., 7 Q. B. D. 
 20G, that the Court will look to the immediate cause ; and Smith v. Accident I n- 
 surance Co., L. R. 5 Ex. 307; Wiiispear v. Accident Co., G Q. B. Div. 12. 
 
 5. In the event of any accident witliiii the meaning of this policy Notice of 
 (Avhether fatal or not) occurring to the insured, it is a condition prece- 
 dent to any claim that notice thereof in "UTiting must be received by tlie 
 CO at its chief office within seven days after the occurrence of the 
 accident, stating the nature and date of the injuries, the place where 
 and the manner in which they were received with the name, address, and 
 occupation of the person injured. And in case the accident shall not 
 prove fatal but shall injure the insured, he shall, in addition, when called 
 upon to do so, furnish to the co a full written report by a registered 
 medical practitioner, setting forth the facts of the case and the injuries 
 he has received, and further shall, when required by the co, submit 
 himself to be examined by the medical or other officer of the co, and 
 shall at all times o-ive them all such further evidence and information 
 
 accident.
 
 316 
 
 POLICIES. 
 
 Form 244. by certificates, declons, or otherwise, as they may from time to time 
 require, or as may be necessary or proper in order to ascertain and prove 
 the nature and extent of such injury, and in case of death there must be 
 delivered to the co, at its chief office, a certificate from tlie medical 
 attendant of the insured, stating as fully as possible the nature, extent, 
 and duration of the injuries and the cause of death, and all such other 
 information and csadencc as the co may require or consider necessary to 
 elucidate the case. In all the above-mentioned cases the certificates, 
 information, and evidence to be given shall be at the expense of the 
 insured, and shall be in such form and of such nature as the co may 
 prescribe and the co shall not be liable in nor bound to pay any sum 
 whatever until the entire amount of cojuiiensation due shall have been 
 ascertained and proved to the satisfon of the co. 
 
 The notice must be given within the time limited even though the insured 
 alone knows of the policy. Taylor v. Caldivell, 3 B. & S. 826 ; Gamble v. Acci- 
 dent Insurance Co., L. K. -i Ch. 201. 
 
 Arbitration. 
 
 £1000 Hmit. 
 
 Disclosure 
 before renewal. 
 
 How notices to 
 be L'iven. 
 
 No notice of 
 premium due. 
 
 Receipts. 
 
 0. If any dispute arise respecting the liability of the co under this 
 policy to make compensatiim f(»r any injiuy whether fatal or otherwise, 
 <»r as to the amount of compensation payable, the dispute shall, if required 
 by the co, be referred to the arbitration of two disinterested persons, 
 one to be appointed by the co and the other by the insured or his leg. 
 per. rep., and the costs, &c. \_supra, p. 312]. 
 
 7. In the absence of special agreemt 1000/. is the limit to any sum 
 insured by the co on any one life, and no further insurance in excess of 
 that amount effected in any way with the co, whether through an agent 
 or other einj)lo)je, or direct with the co and accepted by the co in over- 
 sight, shall hold good against the co without such agreemt. 
 
 8. The insured shall, before the renewal of this polic}', give notice in 
 writing to the co at their chief office of any disease or physical defect or 
 infirmity of which he has l)ecome cognisant or affected during the pre- 
 ceding year. 
 
 1). In all cases in which under this policy it is conditioned and agreed 
 u})on that any declon, notice, or other information shall be made or 
 given to the co by or in behalf of the insured, it shall not be a sufficient 
 compliance with the terms and conditions hereof in regard thereto, 
 or amount to such declon, notice, or information as shall bind or aff'ecc 
 the CO that the same has been made or given to or brought to the know- 
 ledge of any local agent of the co, and that notwithstanding the subse- 
 quent acceptance by the co of any premium. 
 
 10. The CO shall not be bound to send any notice of the renewal 
 ])reniium becoming due, and shall be at liberty to decline to renew the 
 ])ohcy at the end of any year. 
 
 See Simpson v. Accidental Death Co., 2 C. B. N. S. 257. 
 
 11. No renewal receipt is valid unless it is in the i^rinted office form 
 and issued by the manager, and no paymt of money to any person shall
 
 FOEMS. 317 
 
 he lield to keep this policy in force unless such person shall forthwith Form 244. 
 give to the insured the manager's official printed ]"eceipt for such 
 liremiuni, and no special or other indorsemt will be held valid unless 
 the same is recognised and countersigned at the chief office. 
 
 12. In this policy "permanent total disablemt " implies the loss of Definitions, 
 both hands or of l)oth feet or the loss of a hand and a f )()t ; and "])er- 
 manent partial disablemt " implies the loss of one hand, the loss of one 
 foot, or the complete or irrecoverable loss of sight. 
 
 lo. This policy shall not be assignable, and the co shall in no case No trusts 
 be bound to recognise or take notice of any trust or equitaljle charge or ^^'^°°^^ 
 lieu sought to be hnposed on this policy, or any monies payable there- 
 under, and the receipt of the insured or his leg. per. reps, shall in all 
 cases l)e a good discharge to the co. 
 
 Recital as in Form 2 4 3. 
 
 Now, &c,, that if at any time, &c., the insured sliall, whilst travelling by Form 245. 
 
 a passenger train on any line of railway in Great Britain or Ireland [or r"T ' 
 
 on the continent of Europe] in any carriage intended for passengers of accident policy. 
 whatever class, sustain any personal injury caused by an accident to such 
 ti'ain, then, &c. \_as in Form 243]. 
 
 \_Conclitions, see siqira, p. 314, et scri.'] 
 
 See Theobald v. Railway Passengers Co., 10 Exch. 45. The above can readily 
 be altered to an insurance against fatal injury. 
 
 Recitals as in Form 243. 
 
 Now, &c., that if, &c., the insured shall whilst at sea be drowned, or Marine 
 Avhdst at sea shall sustain any personal injury caused by accidentar^'"^ '■'^ ■* * 
 violence, whereof the direct effect shall cause the death of the insured, 
 
 then the ■ Co shall pay to his leg. per. reps, the full sum of /. 
 
 within a mouth after satisfactory proof of such death shall have been 
 furnished to the directors of the co : Provided that such death takes 
 place within three calendar mouths from the date of the accident 
 occasioning the same, &c. [_as in Form 313]. 
 
 The conditions above, p. 315, can readily be adopted. But a condition as fol- 
 lows will be inserted : — 
 
 " The company shall only be liable and the policy shall only extend to and 
 cover accidental death from drowning or any other cause which hapjjens while 
 the insured is actually at sea in the employment of ships siDecified in the 
 schedule hereto, or is embarking or disembarking therefrom, or while he is in 
 any boat, raft, or vessel in which he may have been compelled to leave the said 
 ship in consequence of its being wrecked or in a state of danger, provided the 
 said ship shall sail or be navigated in some of the usual ascertained tracks." 
 The time for giving notice, supra, p. 315, condition 5, is generally increased, 
 e.g., to three months. The above form can readily be altered to a voyage policy. 
 
 Whas (hereinafter called the employer), desires to effect an in- Form 246. 
 
 surance with (hereinafter called the co) as hereinafter ex- ;; — ; \ 
 
 TTii,,! ,1 n 71 ' J^mployers 
 
 pressed, and has pd to the co the sum ot /. as the premuun for such liability.
 
 318 
 Form 246. insurance for 
 
 rOLICIES. 
 
 calendar months from the 
 
 day of 
 
 1«8 
 
 Notice of 
 accident. 
 
 Company may 
 .settle claim. 
 
 State of 
 works. 
 
 Notice on 
 renewal. 
 
 IIow notice to 
 lis given. 
 
 ]\Ii.s-iitatemcnt 
 
 XOW THIS POLICY WITNESSETH and declares that the co, so 
 far as regards injuries caused during the period covered l)y the premium 
 BO pd as afsd, or any farther period in respect of which the co shall 
 accept a premium or premiums, shall pay to the employer all sums 
 which such employer shall become liable for under or l)y virtue of the 
 Employers' Liability Act, 1880, as and for compensation for personal 
 injury caused to any workman in [his] service while engaged in per- 
 forming the employer's work in any of the occupations and at any of 
 the places nientd in the schedule hto, such paymt to be made within 
 one calendar month after satisfactory proof of such liability shall have 
 been furnished to the co. 
 
 This policy, &c., siqna, p. 314. 
 
 In witness, &c. 
 
 The conditions within referred to are as follows : — 
 
 1. Upon the occurrence of any accident notice thereof shall within seven 
 days of its occurrence be given to the company with such further information 
 as to the time at and the circumstances under which the injury was caused 
 and the nature and extent thereof, and the name and occupation of the claimant 
 and such other information as the company may by their rules or otherwise re- 
 qiiire ; and if the company shall so require such information shall be given 
 upon forms supplied by the company for the purpose, and be certified by the 
 employer or his principal manager. The employer on receiving notice of a 
 claim shall within seven days send on the same or a certified copy thereof to 
 the company, and he shall cause to be supplied to the company siich further 
 information as to and such evidence of the circumstances connected with siich 
 claim as the company may from time to time apply for. 
 
 2. On receiving from the employer notice of any claim the company may 
 take upon themselves the settlement of the same, and, in that case, the em- 
 ployer shall give them all necessary information and assistance for the piirpose. 
 The employer shall not, except at his own cost, pay or settle any claim without 
 the consent of the company, but if any proceedings be taken to enforce any 
 claim in respect of which such notice shall be given, the company shall have the 
 entire conduct and control of the same throughout in the name and on behalf 
 of the employer, and shall in any event indemnify the employer against all 
 costs and expenses of and incident upon any such proceedings, and the employer 
 shall at the cost of the company render them every assistance in his power to en- 
 able them to resist any claim wholly or in part or to defend any such proceedings. 
 
 3. The employer shall and will at all times use all reasonable diligence in 
 keeping himself acciuaiuted with the state of the ways, works, macliinery and 
 plant connected with or used in his business upon or in the use of which the 
 said workmen shall be employed, and in keeping the same in a proper state of 
 repair, and if any defect shall be discovered rendering the occupation of any 
 workman more than usually hazardous shall cause the said defect to be made 
 good, and shall in the meantime cause such additional precautions as circum- 
 stances may require to be taken. 
 
 4. The employer shall, at every renewal of the policy, give to the company 
 notice of any circumstance rendering the occupation of workmen more hazardous 
 than at the time of the payment of the last previous premium. 
 
 5. Every notice and communication to be given or made hereunder to or with 
 the company shall be sent to the chief offices of the company in 
 
 G. If there shall be any mis-statement in or intentional omission of a material 
 fact from the proposal upon the basis of which this insurance is granted, or if 
 the third condition be not complied with, this policy shall be void.
 
 FORMS. 
 
 319 
 
 Limit of 
 liability. 
 
 7. The premium has been fixed on the assumption that only the amount of Form 246. 
 wages mentioned in the schedule hereto will be paid to woi'kmen engaged in 
 each occupation there mentioned. If upon any claim arising it shall be found 
 by reference to the wages book that a larger amount of wages is being paid to 
 men in the occiipation in which the injury occurs the comi^any will only jiay in 
 
 respect of such injury such a proportion of the amount they would otherwise 
 have to pay as shall Ije borne by the amount of wages mentioned in the schedule 
 under the particular occupation to the amount of wages actually being paid in 
 that occupation at the time of such claim arising, and the said wages book shall 
 at all reasonable times be open to the inspection of the company or whomsoever 
 they may appoint. 
 
 8. In the case of the death or retirement of any member of or the addition of New partners, 
 a new member to any firm hereby insured this policy shall enure for the benefit 
 
 of the remaining or continuing and new members of such firm. 
 
 9. The expression "workman " shall have the same meaning throughout this " Workmen." 
 policy, and in these conditions, as in the Employers' Liability Act, 1880, pro- 
 vided that this policy shall not insure against the result of any accident caused 
 
 by or happening to any c"iild, young person, or woman subject to the provisions 
 of the Factory Acts, the Mines Eegulation Acts, or any Act relating to the 
 employment of labour, while employed contrary to such provisions. 
 
 10. If a dispute shall arise respecting the amount to be paid to the em^Dloyer ArLitratiou. 
 or whether these conditions have been complied with or otherwise as to any- 
 thing herein contained, the matter shall, if required by the company, be 
 referred to, &c., supra, p. 312. 
 
 11. The directors shall not be bound to send anj- notice of the renewal pre- Determination, 
 mium becoming due, and shall be at liberty should they see fit at any time by 
 
 giving notice in writing to the insured to determine this policy as from the 
 receipt of such notice without prejudice to the rights of the insured in respect 
 of prior accident, and in that case the company shall return on demand to 
 the insured the premium paid hj him less a pro rata part thereof for the pro- 
 13ortion of the year the policy has been in force, and such notice shall be 
 
 deemed sufficiently given if posted in , addresseci to the insured at the 
 
 within-mentioned adcU"ess, and shall in such case be deemed to have been re- 
 ceived by him at the expiration of twenty-foiir hours after it is posted. 
 
 12. No renewal receipts are valid unless they are in the printed office form 
 and issued by the chief office, and no payment of money to any jierson shall 
 be held to keep this policy in force unless such person shall forthwith give to 
 the insured the official printed receijot for such premium, and no special or 
 other endorsement will be held valid unless the same is recognised and coun- 
 tersigned at the chief office. 
 
 Schedule. 
 
 Description of occu]iation. 
 
 Wages paid to workmen in the 
 occuiiation. 
 
 Place at whioli workmen 
 
 to wlioni wages paid 
 
 are employed. 
 
 

 
 330 
 
 POLICIES. 
 
 Form 246 '^'^e aLove merely deals with liability imposed ])y the Act, but some com- 
 
 '- panics issue policies insuring the employer against claims in respect of any 
 
 accident to workmen and sometimes secures specified compensation to injured 
 workmen. In some cases the policy is to cover weekly wages of a specified 
 amount, and in others is to cover the employer until a specified sum has been 
 expended in wages. 
 
 Form 247. 
 
 Live stock 
 insurance. 
 
 Limit. 
 
 Kenewal. 
 
 Exceptions. 
 
 Compulsory 
 slaughter. 
 
 Salvage. 
 
 Variation of 
 policy. 
 
 Rcciial as in Form 243. 
 
 NOAY THIS POLICY WITNESSETH and declares that if at any 
 time [cjr., as in Form 24o] durini;- the period covered by the premium 
 so pd as afsd, or any further period in respect of which the co shall 
 accept a premium, any animal specified in the schedule hto shall die 
 from any accident or disease, then in every such case the co will pay or 
 make good all the damage and loss which the insured shall sustain by 
 the death of the animal, not exceeding in each case the anu)unt set 
 opposite the parlars of such animal in the sd schedule. 
 
 This policy, &c. \_see p. 314.] 
 
 In witness, &c. 
 
 The schedule will be divided into columns, and will show the colour, species 
 [name], age, market value, insured value, premium, &c. 
 
 The above form, and the conditions following, can readily be altered to suit 
 the case of insurance against accidents only. 
 
 1. The company will cover the risk on each animal to the extent of not more 
 than two-thirds its fair market value, with the exception of stock for fattening, 
 which may be insured up to the full market value at the time of proposal. 
 
 2. Every application for the renewal of this policy shall be made to the com- 
 pany at least seven days before the expiration of the time for which the policy 
 may be in force, and shall be accompanied by a deposit of 20 per cent, of the 
 amount of premium to be paid. 
 
 3. This policy does not insure against the death of any animal resulting from 
 improper use or unskilful treatment, or wilful neglect, nor against death result- 
 inp- from rot, or liver-fluke, nor from injuries maliciously inflicted, nor from 
 malicious slaughtering or poisoning, nor from death resulting from fire, or 
 occurrino- during transport by sea or land, except from one farm of the insured 
 to another in the same or adjoining parishes, nor, in the case of sheep, from 
 rot or small-pox, nor, in the case of horses, from death from foaling, or the 
 operation of castration, or from glanders and farcy, unless at an additional 
 premium. 
 
 1.. When any animal hereby insured is desti'oyed under the Contagious 
 Diseases (Animals) Act, or under any Order of the Privy Council, or by the 
 instructions of any government or local inspector, acting under the authority 
 of such Act or Order, the company shall be liable for the ditference only 
 between the amount payable to the owner under the above-named Act and the 
 amount of insurance on such animal covered by this policy. 
 
 5. One third of the salvage on cattle, sheep, or pigs, will belong to the 
 assured, and the remaining two-thirds, as also the whole of the salvage on 
 horses, will belong to the company, but in no case will less than 25s. for horses 
 in laro-e towns, 15s. for horses in the country and small towns, IDs. for neat 
 cattle exceeding 18 months old, 5s. for young stock, 3s. for sheei) and pigs, be 
 deducted by the company from the amount of claims. 
 
 G. Subject to the payment of such premium as the company may require, the 
 said schedule hereto may, with the consent of the company, be varied from 
 time to time by the entering thereon, or on a separate form, of other animals 
 either in addition to or in substitution of those for the time being therein com- 
 prised. Every such variation shall be authenticated by the signature of the
 
 FOEMS. 321 
 
 secretary, and the risk of the company in respect of the animals added shall Form 247. 
 commence from such date as may be specified, and be in every resjDect subject 
 to the terms and conditions of this policy. 
 
 [It is said that where an alteration is required in a policy it may be made 
 by indorsement if it is such as is provided for by the conditions of tlie jDolicy ; 
 but if not, and the contract becomes a new one, a new policy should be issued, 
 or the indorsement should have an adhesive stamp attached at the time of 
 execution. Bunyan, Fire Insur. 61. This proposition seems consistent with 
 reason, and is generally acted on. Hence the introduction of a clause as 
 above.] 
 
 7. All stock of a class on a farm or premises must be insured, and newly- Separation of 
 purchased stock must be kept separate and apart from other insured stock on stock. 
 
 the premises, as far as possible, until examined and passed by the company's 
 inspector. 
 
 8. Under no circumstances will the company be liable whilst any part of the Premiiun 
 premium in respect of the original insurance, or any renewal, addition or sub- unpaid, 
 stitution, shall be unpaid. Every animal must be in perfect health, and free 
 
 from any injury, at the time of such payment, and so continue for twenty-one 
 days after the date of any proposal paper. 
 
 9. The insured shall give notice of the illness of or of any accident to any Notice of 
 stock hereby insured to the secretary at the head oifice, and to the local agent illness, 
 or inspector of the company, within twenty-four hoiu-s from the commence- 
 ment of such illness, or occurrence of such accident, and shall comply with all 
 
 such directions as the inspector may give. When the carcase is fit for human 
 food the assured must cause it to be dressed and disposed of to the best advan- 
 tage. 
 
 10. No compensation will be allowed for any cattle, sheep or pigs slaughtered When no 
 without expi'ess permission from the inspector of the company, nor for any compensation, 
 horse slaughtered (except in cases of fractured bones, where humanity renders 
 
 it necessary), without authority in writing under the hand of the secretary of 
 the company. 
 
 11. The assured shall not introduce, or permit to be introduced, a diseased Diseased stock 
 or infected animal among any insured stock, or upon any part of his premises, pot to be 
 
 or suffer the insured stock to mix with diseased or infected animals, or permit i^trotluced. 
 them to go into tainted sheds or buildings, or any other place where diseased 
 animals have been, but shall cause any animal attacked with any con- 
 tagious disease to be completely sepai-ated and isolated from the remainder 
 of his stock immediately upon the discovery of the attack, and shall not 
 permit any communication by his servants, utensils, or otherwise, be- 
 tween diseased and healthy animals, and shall use all necessary and 
 proper precautions to protect his healthy stock from any chance of 
 infection. 
 
 12. On the death of any animal hereby insured the insured shall immedi- Notice on 
 ^tely give notice thereof to the secretary at the head ofiice, and to the local ileatb. 
 inspector or agent of the company, and shall, within twenty-one days thereof, 
 fiu'nish to the company, at its head office in London, on the printed form of the 
 company, such information, accompanied by such certificates and reasonable 
 
 proof as to the death, identity and value of the animal, and the observance of 
 these conditions, as the directors may require. 
 
 13. The insui'ed shall permit the directors, or their officers, at all times to Inspection, 
 inspect the animals hereby insured, and premises of the assui'ed, and shall 
 furnish any information which they may require, and shall comply with all 
 reasonable regulations and directions from time to time made and given by the 
 company. 
 
 14. No animal hereby insured shall, without the permission of the company, Eniploj-rajnt of 
 be employed for any other purpose than that specified in the proposal, nor be aniiua s. 
 removed for the purpose of being kept on any other farm or premises than 
 
 those mentioned in the proposal, nor be insured in or protected by any other 
 
 Y
 
 322 
 
 POLICIES. 
 
 Food 
 
 Misrepre- 
 sentation. 
 
 Form 247. office, club or association, without previous permission in writing under tlio 
 hand of the secretary of the company. 
 
 15. The insured shall, during the continuance of this policy, cause every 
 animal from time to time hereby insured to have sufficient and proper food, 
 water, and shelter, and will cause them to be propex-ly treated by veterinary 
 surgeons while suffering from disease or accident, and will not suffer any such 
 animal to be watered at any stagnant or unwholesome pond, or with water con- 
 taminated by manure or other drainage, but will keep all fences, yards, sheds 
 and stablings where any animals hereby insured shall be secure, and shall at 
 all times, and to the best of his knowledge and ability, use and exercise every 
 due and proper precaution and safeguard against loss, or danger of loss, under 
 this policy. 
 
 16. If there shall be any untrue or incorrect statement in the declaration 
 upon the basis of which this insurance is granted, or if the insured shall have 
 misstated, or omitted to state any material fact or circumstance at the time of 
 proposal, or shall do so between the date of the proposal and the date of the 
 commencement of the risk hereunder, or afterwards, at any renewal, alteration 
 or extension of this policy, or on the making of any claim hereunder, or shall 
 advance any false or fraudulent claim, or shall fail in any particular to observe 
 and perform the terms and conditions hereof, this policy shall be void, and all 
 premiums paid hereon shall be forfeited to the company. 
 
 17. No agent or inspector has any aiithority to dispense with the express 
 performance of any of the above conditions ; and no alteration of this policy, 
 or any indorsement thereof, will be valid, unless the same be recognised and 
 countersigned by the secretary of the comjjany. 
 
 18. The company shall not be bound to send any notice of the renewal premium 
 becoming due, and shall be at liberty to decline to renew the policy at the 
 end of the year, or other period of insurance. [Sometimes power to determine 
 the insurance is taken, as in Form 24G, Clause 11.] 
 
 19. If any difference, &c. 
 
 Authority of 
 agents. 
 
 Deternaination. 
 
 Arbitration. 
 
 Horse 
 insurance. 
 
 Form 248. Recitals as in Form 243. 
 
 Now, &c., that if, &c. [Form 213], any horse or horses specified in 
 the schedule hto shall be injured by accidental external violence within 
 the meaning of this policy, and shall die from or be necessarily slaughtered 
 in consequence of the effects of such injury, Then, &c., as in Form 247, 
 mutatis mutandis. 
 
 Hiir;^cnn to 
 examine. 
 
 The above form can readily be adapted to cover a specific accident to a 
 particular animal ; and a condition can be added, declaring, " This insurance 
 
 being against the risk of only, the above conditions shall only ajjply so 
 
 far as they are applicable accordingly." 
 
 1 . This policy does not insure against death or slaughter caused or occasioned 
 by any disease or comp>laint, or by unskilful treatment or neglect before or at 
 the time, or following any accident, or by castration or other surgical opera- 
 tion performed without the consent of the company in writing, or by anything 
 administered or taken, or any injury maliciously inflicted, or caused, or occa- 
 sioned by any accident arising from the breach or non-observance by the 
 insured or his servants of any of these conditions, as from the use of imperfect 
 gear, known by the insured or his servants to be so, or from strain from over- 
 loading, or from accidents occurring while foaling, or during transit by railway, 
 steam-vessel, or other conveyance, or from fire, war, tumult, or invasion, or 
 from the wilful or negligent exposure by the insured or his servants of any 
 animal hereby assured to unnecessary danger. 
 
 2. In case of an accident to any horse hereby assured, it shall be imperative 
 upon the insured immediately to call in a duly qualified veterinary surgeon to-
 
 FOEMS. 323 
 
 attend the animal, and the insured must send a certificate from such veterinary Form 248. 
 surgeon with full particulars of the injuries, and how they were occasioned, to 
 
 the secretary of the company, at its head offices. No. , within twenty-four 
 
 hours of the accident, and shall, at the request of the company, furnish to such 
 head office on their printed form such information, accompanied by such cer- 
 tificate and reasonable proof of the death, or accident, or any circumstance 
 relating- thereto, and the identity and value of the animal, and of the observance 
 of these conditions prior and subsequent to the accident, as the directors may 
 require. 
 
 3. No horse may be slaughtered (except in the case of a severe fracture of Slaughter, 
 the bones, certified to by a duly qualified veterinary surgeon), without an 
 authority in writing, under the hand of the secretary of the company, or other 
 officer appointed by the directors. The insured must dispose of the carcase of 
 any horse when dead to the best advantage, and the whole amount realised 
 shall belong to the company. 
 
 •i. Subject to the payment of such, &e. [Form 247, Clause G]. 
 
 5. Uuder no circumstances, &c. [Form 217, Clause 8]. 
 
 6. The insured shall permit, &c. [Form 217, Claiise 13]. 
 
 7. No animal insured shall without, &c. [Form 247, Clause 14]. 
 
 8. The insured shall during the continuance, &c. [Form 247, Clause 15]. 
 
 9. If, &c. [Form 247, Clause 16]. 
 
 THIS POLICY OF INSURANCE WITNESSETH that Form 249. 
 
 (hereinafter called the insured) having pd to (hereinafter called Transit. 
 
 the CO) the premium of , the co hby agrees with the insured that if 
 
 any animal specified in the schedule hto shall be injured from accidental 
 external violence within the meaning of this poHcy whilst travelling 
 between the points of departure and destination respively mentd in the 
 same schedule by the modes of conveyance therein described, and shall 
 within fourteen days after the occurrence of such accident die fi-om or be 
 necessarily slaughtered in consequence of the effects of such injury, 
 Then, &c. [Form 247]. 
 
 1. This policy does not insure against general average, nor against death or Exceptions, 
 slaughter, caused or occasioned by any accident occurring in consequence of 
 unseaworthiness, or of fire on board of any vessel, or in the loading of any 
 
 animal at the point of departure, the company's risk commencing when the 
 loading of such animal is complete, and terminating on the arrival of the 
 vessel or train in which the animal is carried at the port or station at which 
 such animal should be landed or unloaded. 
 
 2. In case of an accident to any horse, the insured shall where possible im- 
 mediately call in a duly qualified veterinary surgeon to attend it, and shall 
 furnish to the company a certificate from such veterinary surgeon as to the 
 cause of death, or natvire of injuries ; and in the case of an accident to any 
 animal whatsoever, the insured shall immediately forward to the company, at 
 their head office in London, full particulars of the injui-ies, and how they were 
 occasioned, within twenty-four hours of the accident, or of the same coming to 
 the knowledge of the insured, and shall, at the request of the company, furnish 
 to their head office in London, on their printed form, such information, &c. 
 [Form 248, Clause 2]. 
 
 3. No horse, &c. [Form 248, Clause 3]. 
 
 4. The insured or his agents shall, so far as possible, see that every animal 
 hereby insured is properly loaded and secured, and shall permit, &c. [Form 247, 
 Clause 13]. 
 
 5. No agent or inspector has any authority, &c. [Form 247, Clause 17]. 
 G. If any difference [reference to arbitration]. / 
 
 Y 2
 
 324 
 
 POLICIES. 
 
 Damage by 
 liorses aud 
 vehicles. 
 
 Alteration of 
 risk. 
 
 Certain risks 
 excepted. 
 
 Form 250. Recitals as in Form 243. 
 
 Now, &c., that if at any time, &c. \_as in Form 24:3], any damao-e or 
 injury shall be directly caused by or by means of the animals or vehicles 
 of the insured specified in the schedule endorsed hereon, or any of them, 
 to any person or persons or ppty whilst the sd animals and vehicles, or 
 any of them, are or is being ridden or driven on the road, or in the 
 street, by the insured or his pd servant or servants, Then and in every 
 such case the co will pay or make good any sum or sums in respect of 
 such loss or damage which the insured maybe honCt Jidp compelled to pay 
 to any other person or persons, such amount not to exceed in each case 
 the sum insm'ed hiereon, as specified in the sd schedule. 
 
 This policy, &c. [see Form 243]. 
 
 In witness, &c. 
 
 The schedule will be endorsed and the conditions will be printed below. 
 
 1. After the risk has been undertaken by the company, nothing shall be done 
 whereby such risk shall be altered or increased without the written consent of 
 the company. 
 
 2. This policy does not cover any loss or damage resiilting from the intoxication 
 of any rider or driver, nor any loss or damage arising from the bites or kicks of 
 horses, or happening through any invasion, foreign eneiuy, insurrection, civil 
 commotion, riot, or any military or visurped jjower whatsoever, or by or through 
 any person or persons engaged or concerned in notorious resistance to the au- 
 thority of magistrates or to any other lawful authority, nor any loss or damage 
 arising either directly or indirectly from fire or the consequences thereof, 
 nor from wilful injiu-y by any person, nor from the negligence, carelessness, 
 mismanagement, neglect, or wrong-doing of the insured or any of his servants, 
 employes or agents. 
 
 3. All proi^er, reasonable and skilful care shall at all times be taken and ex- 
 ercised in the driving of the vehicles specified in the said schedule, and every 
 of them, and the same shall only be entrusted to proper, careful and experienced 
 servants, and shall be drawn by fit and proper animals, without vice and c^uiet 
 and steady in harness. 
 
 4. This policy does not cover any loss or damage which may be caused by any 
 of the animals or vehicles specified in the said schedule whilst out of the United 
 Kingdom. 
 
 5. This policy does not cover any loss or damage which the insured may have 
 to pay to any person or persons in his own employ, or to any person or persons 
 riding, driving or being carried on any animal or on or in any vehicle of the 
 insured. 
 
 6. Whenever any loss or damage shall be directly caused by or by means of 
 the animals or vehicles specified in the said schedule, or any of them, within 
 the meaning and terms of this policy, and the same shall happen by reason of 
 the negligence, carelessness, mismanagement, neglect, or wrong-doing of any 
 person other than the insured, his servants, employes, or agents, it shall be 
 lawful for the company to sue in the name of the insured, and recover compen- 
 Bation from the person or jjersons causing such damage, and any moneys or 
 other compensation which shall be recovered shall belong to the company. 
 
 7. The Association shall be at full liberty to defend, settle, compromise, and 
 otherwise manage, deal with and regulate any actions, suits, or other jiroceed- 
 ings or claims which may be brought, instituted, or made against the insured, 
 his servants, employes or agents, or any of them for or in respect of any loss or 
 damage caused or alleged to be caused by or by means of the animals or vehicles 
 specified in the said schedule, or any of them, and the insured, his servants, 
 employes and agents, shall in this respect give the company every assistance in 
 his or their power. 
 
 C;u-e to he 
 taken. 
 
 Xo foreign 
 risk. 
 
 Damage to 
 
 employes 
 
 incliuled. 
 
 Subrojration. 
 
 PrneeedinL
 
 FOEMS. 
 
 32[ 
 
 8. Immediately upon the happening of any accident hereby insured against. Form 250. 
 the insured shall give notice thereof in writing to the company at their regis- 
 
 tered office, si^ecifying as far as possible the time and place when and whex-e ■^^°''^^^' 
 such accident happened, by which particular animal or animals, vehicle or 
 vehicles the same was occasioned, the name or names of the driver or drivers, 
 rider or riders, and the names and addresses of every person to whom or to 
 whose property any damage has been or has been alleged to have been done, 
 and the nature and extent of such damage, and any other particulars that may 
 be reasonably practicable, to enable the association to ascertain the exact cause 
 and nature of the accident, and the extent of the damage done. 
 
 9. Tlie company shall be at liberty to undertake the settlement of all claims Settlement of 
 on behalf of the insured, and the insured shall not in any way intermeddle claims, 
 therewith, or settle or compromise, or attempt to settle or compromise, any 
 
 claim that may be made against him for damages or compensation in respect of 
 any accident within the terms of this policy without the written consent of the 
 company. 
 
 10. The insm-ed shall, in support of any claim which he may make upon the Insured to 
 company, give all such proofs and explanations as shall be reasonably required, support, 
 together with, if required, a statutory declaration of the truth thereof. No 
 
 claim in respect of any loss or damage shall be payable until all the require- 
 ments of this condition have been fulfilled. 
 
 11. The company, its directors, officers, insjiectors, and agents shall have at Inspection. 
 all reasonable times, during the continuance of tliis policy, access to the animals 
 
 and vehicles specified in the said schedule, to inspect and examine the same, 
 and full right of admission to any coach-house or other place where they or 
 any of them may be for the time being. 
 
 12. If at the time of any claim being made for loss or damage under or by Average. 
 virtue of this policy, there be any other subsisting insurance, &c., as in Form 
 
 242, cl. 9. 
 
 13. Subject supra, p. 320, cl. 6. 
 
 14. The Slim or sums to be paid by the company in respect of any loss or Limit of 
 damage, shall in no case exceed the sum hereby insured, and all sums which liability. 
 may from time to time be paid under or by virtue of this policy in any one 
 
 year, shall be counted in diminution of the said sum hereby insured, so that in 
 case of subsequent loss during the same year the total amount payable by the 
 company shall not exceed the said sum hereby insured. 
 
 15. If there shall be [Form 247, supra, p. 322, cl. 16.] Avoidance. 
 
 16. [Arbitration.] 
 
 Whas {_recitcd as in Form 243]. Form 251. 
 
 NOW THIS POLICY WITNESSETH and declares, that if at any ^^^_ 
 
 time, &c. \_as In Form 24o ilotcii io daij of ], any damage or injury 
 
 shall be occasioned Ijy the explosion of the steam boiler specified in the 
 schedule hto, or the collapse of the flue tubes of such boiler, or any or 
 either of them, 'whether to the boiler itself, or to the engine, machinery, 
 or apparatus with which it may be connected, or to any other ppty 
 whatsoever of the insured (except destruction or damage by fire origi- 
 nating from such explosion, and loss sustained through stoppage of work 
 or other indirect damage), Then and in every such case the co shall pay 
 or make good to the insured all such damage, Provided that the total 
 amount to be recoveral)le by virtue of this policy in any one year shall 
 not exceed /. 
 
 This policy, &c. \_as in Form 243]. 
 
 Ix Witness, &c. iAdd Srhcdidc']
 
 326 
 
 POLICIES. 
 
 Inspection. 
 Reparation 
 
 Conditions. 
 
 Form 251. l. The inspectors of the comijany shall at all reasonable times be iDermitted 
 to inspect and examine any boiler insured tinder this jjolicy, and in case per- 
 mission be at any such time refused by the insured or any person acting on his 
 behalf the company may declare this policy void. 
 
 2. The insux-ed shall, at his own expense and with all practical expedition, 
 and if so directed or required by any inspector of the company before any fur- 
 ther use of the boiler, amend or remedy any defect or want of reparation in any 
 insured boiler or the apparatus connected with it wliich may have been notified 
 to him by any such insjjector of the company, and in other respects act under 
 the advice and upon the suggestions of any such inspector in relation to such 
 boiler and apparatus (and particiilarly in relation to the maximum pressure or 
 load to be placed upon the safety valves), provided that such notification, advice 
 or suggestions respectively shall be in wi-iting under the hand of such inspector ; 
 and, if the insured fail to comply therewith, this policy shall be void as regards 
 the boiler or boilers referred to in such notice. The inspection by the com- 
 pany's inspector is intended to be made for the sole purpose of affording in- 
 formation to the company, and no duty or obligation shall be cast upon the 
 company to make any such inspection. 
 Notice. 3. In case of any explosion or damage by exi^losion or collapse of flue tubes 
 
 or injury to or distortion of such tubes insured against by this policy, the 
 insured or some person acting on his behalf shall forthwith give notice thereof 
 by telegram if practicable and also in writing to the company at its chief office 
 
 in N , and to the chief inspector of the district in which the boiler is situated, 
 
 and thereupon the company will inspect such damage and cause it to be made 
 good or authorize the insured to do so, and in such case the insured shall as 
 
 soon as possible thereafter deliver at the said office of the company in N a 
 
 detailed and true account of the sum claimed for such damage, and shall furnish 
 such particulars and further information (if any) as the comjDany may require, 
 and the company will Avithin one month after the receipt of such account, par- 
 ticulars and information, and so far as the claim or demand may be found cor- 
 rect, pay the amount thereof. The company will not be liable for any repairs 
 executed previous to such inspection or without written authority, nor for any 
 damage covered by this policy if the insured does not give notice to the com- 
 pany and to the chief inspector as before described within forty-eight hours of 
 its occurrence. 
 Alteration, 4. In case of removal or alteration of any boiler insured by this policy notice 
 
 in wi-iting shall be given to the chief inspector of the district in which it is 
 situated or at the chief office of the comi:)any previous to such removal or altera- 
 tion, otherwise this j^olicy shall be void as regards such boiler. 
 Explosion. 5. The term " explosion " herein used shall mean violent tearing asunder of 
 
 a boiler through internal pressure. The term " collapse " shall mean the 
 crushing either partially or entii'ely of any internal flue of a boiler by force of 
 the pressure on the external surface of the flue, and whether attended with 
 rupture of the flue or otherwise. 
 Excepted risks, 6. The company shall not be liable to keep in repair any boiler within referred 
 to, nor shall the company be liable in respect of any i-epairs rendered requisite 
 through fracture, blistering, or corrosion of any of the flues or parts of the 
 boiler, or for any other defects caused by wear and tear, or for damage to any 
 flues, seams, or other parts from any matter from or mixed with the feed water 
 or through the accumulation of deposit thereon from any cause whatever. 
 Average, 7. If at the time <5f damage happening to any boiler or boilers or proi^erty 
 
 insured by this policy there shall exist any other insurance qr insurances against 
 such damage, there shall only be payable under this policy such a iDrojportion of 
 the said damage as the amount insured by this policy shall bear to the gross 
 amount of insurances on the boiler or boilers and proj^erty so damaged.
 
 FORMS. 307 
 
 8. In case any difference [Form 312, Clause llj. Form 251 
 
 [Add clauses IG, 17, 18 of Form 217]. 
 
 12. No receipts for jjreminms are to be binding on the company except such as Receipts. 
 
 may be printed and issued from the office in , nor unless they be signed by 
 
 the secretary. 
 
 As to boiler insi)ection, see 45 & 4G Vict. c. 22. 
 
 Sometimes the policy is framed so as to indemnify the insured against claims 
 for workmen damaged by any explosion. 
 
 Whas [recital as in Form 243]. jSTow, &c. [as in Form 243], any Form 252. 
 
 damao'e shall happen to the o-lass specified in the schedule hto, the co ^,77 ; 
 
 .„ * , ^^ - , ° ^ ' Plate glass, 
 
 will pay or maJve good such damage. 
 
 This policy, &c. [Form 243.] 
 
 In witness, &c. [Add Schedule.'] 
 
 See Marsden v. City ^- County Co., 1 C.P. 232, for an action on such a policy. 
 
 Conditions. 
 
 1. In the event of a loss all glass is considered plain, unless otherwise Plain glass, 
 described on the policy. 
 
 2. In the event of the breakage of any glass hereby insured the company shall Breakage. 
 iiave the option of paying the value of the glass so broken less the value of the 
 salvage (if any), or of rej)lacing the same with glass of a similar quality. 
 
 3. If the insured shall be entitled to recover from any other person compen- Subrogation, 
 sation for any damage done to any glass hereby insui-ed, he shall be bound to 
 
 assign his right to sue for such compensation to the company on their settling 
 any claim which he may be entitled to make under this policy. 
 
 4. In case of damage notice thereof must be given to the company within Notice, 
 seven days after the occurrence, and the claimant must furnish full particulars 
 
 of the damage and how and by what means the same was caused, and such 
 particulars must, if required by the comj^any, be verified by statiitory declaration. 
 
 5. This policy does not insure against loss by breakage caused by or resulting Excepted risks, 
 from or in consequence of fire. Queen's enemies, civil or political commotion, 
 
 breakage during removal, alteration, repair of premises, or exj^losions. 
 
 6. In the event of any portion of the glass insm-ed by this policy being Cesser of 
 broken, this policy shall not cover any glass substitiited for such broken glass, liability, 
 unless such additional premium is i^aid in respect thereof as the comi^any may 
 require. 
 
 7. In no case will the company be held liable for interruption or delay of Excepted 
 business or damage of any kind during the time intervening between the occur- damage, 
 rence of a breakage and the replacement. 
 
 8. Frames of every description are to be at the risk of the insured. Window Frames, 
 fittings or other obstructions to replacement must be removed by the insured, 
 
 ■and all salvage mvist be preserved, the same being the property of the company. 
 
 9. This policy of insurance will be vitiated if any alteration is made in the Alterations 
 within-mentioned glass or any alteration in the building, trade, or occupancy, 
 
 imless notice is given to the company of said alterations and the assent and 
 sanction of the company recorded by the endorsement hereon. 
 
 10. If, &c. [Form 247, Clause 16. J Avoidance. 
 
 11. Subject, &c. [Form 247, Claiise G altered.] 
 
 12. Arbitration. 
 
 Whas, etc. 
 
 Now", &c. [Form 243], tliat if, &c., any damage by hail shall happen to ^OJ^m 253 
 the corn seed or green crops specified in the schedule hto the co will pay Hail.
 
 328 
 
 POLICIES. 
 
 Form 253. or make good to the insured all such damage [to au amount not exceed- 
 
 iug in the whole Z.] 
 
 This policy, &c. [^sujn'a, Form 243]. 
 In witness, &c. [Add scJtedide.'] 
 
 Double 
 insurance. 
 
 Notice of 
 claim. 
 
 Valuer. 
 
 Separation of 
 damaged crop. 
 
 Avoidauce. 
 Variations. 
 Rate of 
 compensation. 
 
 Prior damage 
 excepted. 
 
 Conditions to be Endorsed. 
 
 1. Wherever the jsroperty hereby insured is insured against hail elsewhere, 
 notice of the fact must be given to the company, and in case of damage the 
 company shall be liable only for a rateable proportion thereof, and unless such 
 notice be given before the damage is sustained the company shall not be liable 
 for such damage. 
 
 2. The insured must within four days after any damage has been done give 
 notice thereof, &c. 
 
 3. After the requisite notice of damage is received the company will send a 
 valuer to assess the same, and if the valuer and the insured cannot agree the 
 difference, &c. [arbitration]. 
 
 ±. The insui-ed shall, if so required by the company, keep separate and apart 
 any crop which shall have been damaged, and when thrashed (which must be 
 ■\vithin three months after harvesting) declare the produce thereof per acre. 
 
 5. If, &c. [Form 247, Clause 16]. 
 
 6. Subject, &c. [as in Form 2i7, Condition 14>]. 
 
 7. Compensation for loss will be made at the imperial averages for wheat, 
 bai'ley, oats, peas, beans, and rye in the London Gazette the week before the 
 occurrence of tire loss, and for all other crops and seeds at the ordinary price in 
 the neighboui'hood. Garden peas and beans will only be paid for at the average 
 price of ordinary farming produce. 
 
 8. The company is not to be liable if the crojjs insured have sustained any 
 injury from hail before the proposal for the insiu-ance was delivered. 
 
 Guarantee of 
 honesty. 
 
 Form 254. Whas (hereinafter called the employed) is in or is about to be 
 
 taken into the employmt of (hereinafter called the employer) in 
 
 the capacity set forth in the proposal and declon hereinafter mentd : 
 And whas a proposal and declon, signed by the employed and the 
 
 employer, has been delivered to the (hereinafter called the co),. 
 
 which proposal and declon is hby declared to be the basis of the con- 
 tract contd in this policy : And whas paymt of premium] : N"OW 
 THIS POLICY WITNESSETH that tlie co hby agrees with the em- 
 ployer that if at any time, &c. {_Form 243, doini to day of ] and 
 
 the employed shall remain in the uninterrupted employmt of the em- 
 ployer in this capacity and in the manner set forth in the sd proposal 
 and declon, the employer shall sustain any loss by reason or in conse- 
 (|uence of any fraud or dishonesty of the employed, the co shall pay or 
 make good to the employer the full amount of such loss not exceeding 
 
 /. : And in conson of the premes the employed hby agrees with the 
 
 co to indemnify it from all claims and demands by the employer under 
 this policy, and aU actions, costs, damages and expenses in relation thereto. 
 
 This policy, &c. [a.s in Form 243]. 
 
 In witness, &c. 
 
 [A considerable number of guarantee forms are in use, e. g., guarantee in 
 favour of A., who has been surety for B., to secure the honesty of poor-law 
 MLsrepresenta- '^®'^^''^' receivers, liquidators, &c. See another form, infra, " Winding up."] 
 tion. ' ' 1. If. &c. [Form 211, Clause 1].
 
 FOEMS. 329 
 
 2. This policy shall remain in force only so long as the precautions and checks Form 254. 
 
 for seciu-ing accuracy of account, and liinitiny: the amount of moneys entrusted 
 
 to, or left in the hands of the employed at any one time, shall be faithfully saieguanis. 
 and duly observed and put in practice on the part of the employer, in sub- 
 stantial accordance ^vith the representations made in the said proposal and 
 declaration. 
 
 The employer shall give notice in writing to the company of any fraudulent Notice. 
 or dishonest act committed by the employed within ten days after the employer 
 becomes cognisant thereof, and upon his becoming cognisant of any such act, 
 the company shall, ipso facto, and without any notice whatever, be relieved 
 from all liability under this policy, so far as regards the subsequent acts of the 
 employed. 
 
 When any loss which may be sustained or inciu-red as aforesaid by the Surrender of 
 employer shall have been made good and satisfied by the company, this policy policy, 
 shall be g-iven up to the company. 
 
 The employer, if required by the company, shall at the expense of the com- Subrogation, 
 pany assign to the company all claims and rights of action vested in the 
 employer against the employed in respect of any loss in respect of which the 
 company shall admit its liability hereunder. 
 
 3. In the event of any loss or damage accruing to the employer, in respect of Notice of 
 which a claim may be made under this policy, the employer shall, within ten claim, 
 days after such loss or damage is discovered, give notice of such claim, with 
 
 the particulars thereof so far as then ascertained, to the head office of the 
 company, and shall also cause to be delivered as soon thereafter as the cir- 
 crunstances will permit a statement in wi-iting, setting forth fully the amount 
 and particulars of such loss or damage, and of the acts and defaults by which 
 such loss or damage is alleged to have been occasioned, together with proper 
 vouchers in support thereof ; and in case such statement and vouchers shall 
 not be lodged with the company within three months after the date of notice 
 of said claim, such claim will be held to be withdra^vn, and the company shall 
 not be liable therefor, or for any future claim or demand in respect of such 
 alleged loss or damage. 
 
 4. The employer shall also, if so required by the company, cause to be made Statutory 
 and delivered at, or transmitted to the said office a statutory declaration, by declaration, 
 or on behalf of the employer, of the truth of the statement above mentioned, 
 
 and setting forth that the precautions and checks ^vithin referred to have been 
 faithfully and duly observed and put in practice in substantial accordance with 
 the representations made on behalf of the employer in the said proposal, and 
 in default thereof the company will not be liable to make good the particular 
 loss or damage so claimed. 
 
 5. The employer shall also cause to be afforded to the company all such Information, 
 information and assistance as may be reasonably required for prosecuting or 
 bringing to justice the employed for any criminal oifence committed by him 
 
 in his said emploj'ment, by reason or in consequence of which the comj)any 
 shall become chargeable under this policy, or for maintaining any action against 
 the employed, his executors, or administrators, for reimbursing to the com- 
 pany any moneys which they may pay, or become liable to pay, under this 
 policy. 
 
 6. Subject to the performance of the four preceding conditions, payment of When paj-ment 
 a claim will be made within three calendar months from the time of the delivery t° "^ made. 
 
 of the statement above mentioned, or the verification thereof, if required. 
 
 7. Any salary or commission which but for the default on the part of the Salary to be 
 employed on which the claim shall be founded would have become payable by deducted, 
 the employer to the employed, or any other money which shall be due to the 
 employed from the employer, shall be deducted from the amount payable 
 
 tmder this policy. 
 
 8. The right to make a claim imder the wdthin policy will cease at the Death of 
 expiration of tlu-ee calendar months after the death of the emijloyed. employed.
 
 330 rOLICIES. 
 
 Limit of time. 
 
 Form 254. 9. The ri^ht to make a claim iinder the within policy in respect of any loss 
 will cease at the expiration of six calendar months after the act or default 
 occasioning such loss, and no claim shall be made under the policy after the 
 expiration of three calendar months from the time when the employed shall 
 leave the service of the employer. 
 
 Receipts. 10. No receipts for the renewal premium on this policy are valid hut the 
 
 official receipts signed by the manager or secretary of the company. 
 11. If any difference [refei'ence to arbitration]. 
 
 Average. 12. This policy is granted upon the exj^ress understanding or agreement that 
 
 if the employed is or shall hereafter be guaranteed by any other person, society, 
 or company against svich loss as within mentioned, this company shall only 
 be liable to pay to the employer rateably with such person, society, or 
 company. 
 
 See the following cases : — Phillips v. Foxall, L. E. 7 Q. B. 667, employer 
 concealing dishonesty of employed ; and London Guarantee Co. v. Fearnley, 
 5 Ap. Cas. 911, as to construction of guarantee policy. 
 
 Form 255. The Marine Insurauce Co, Limtd. 
 
 Policy on ship. (ci) Whas [has] represented to the above-named co (hereinafter 
 
 called the co) that [he is] interested in or duly authorised as owner, 
 agent or otherwise to make the insurance hereinafter mentd and described 
 with the CO, and [has] promised to pay forthwith for the use of the co, 
 
 at the office of the co, the sum of 1, as a premium or conson at and 
 
 after the rate of p. c. for such insurance. 
 
 (b) NOW THIS POLICY OF INSURANCE WITNESSETH that 
 
 in conson of the premes and of the sd sum of /. the co hby promises 
 
 and agrees with the sd [liis] exs, ads and assigns that the co will 
 
 pay and make good all such losses and damages hereinafter expressed as 
 may happen to the subject matter of this policy, and may attach to this 
 
 policy in respect to the sum of /. hby insured, which insurance is 
 
 hby declared to be upon the ship or vessel called the , whereof 
 
 is at present master, or whoever shall go for master of the sd ship 
 
 or vessel lost or not lost at and from . 
 
 (c) And the co promises and agrees that the insurance afsd shall com- 
 mence upon the sd shijJ as above, and shall continue until she hath 
 moored at anchor for twenty-four hours in good safety at her place of 
 destination. 
 
 UI) And that it shall be lawful for the sd ship or vessel to proceed and 
 sail to and touch and stay at any ports or places whatsoever in the course 
 of her sd voyage [for all necessary pposes without prejudice to this 
 insurance]. 
 
 (e) And touching the adventures and perils which the sd co is made 
 liable unto, or is intended to be made liable unto, by this insurance, they 
 are of the seas, men of war, iire, enemies, pirates, rovers, thieves, jetti- 
 sons, letters of mart and counter-mart, surprisals, takings at sea, arrests, 
 restraints and detainmts of all kings, princes, and people of what nation, 
 condition or quality soe^•er, l)an'atry of the master and mariners, and of 
 all other perils, losses, and misfortunes that have or shall come to the 
 hurt, detrimt or damage of the; afsd sul)ject matter of this insurance, or 
 any pt thereof.
 
 POEMS. 
 
 331 
 
 (/) And in case of any loss or misfortune it shall be lawful to the Form 255. 
 insured, their factors, servants and assigns, to sue, labour' and travel for, 
 in and about the defence, safegaiard and recovery of the afsd subject 
 matter of this insurance or any pt thereof, without prejudice to this 
 insurance, the charges whereof the co will bear in jDroportion to the sum 
 hby insured : And it is expressly declared and agreed that no acts of the 
 insurer or insured in recovering, saving or preserving the ppty insured 
 shall be considered as a waiver or acceptance of abandomnt. 
 
 {g) And it is further agreed that if the ship hby insured shall come 
 into collision with any other ship or vessel, and the insured shall in 
 consequence thereof become liable to pay and shall pay to the persons 
 interested in such other ship or vessel, or in the freight thereof, or in the 
 goods or effects on board thereof, any sum or sums of money not ex- 
 ceeding the value of the ship hby assured, calculated at the rate of 8?. 
 per ton on her registered tonnage, the co will pay the insured such pro- 
 portion of three-fourths of the smn so paid as the sum hby insured bears 
 to the value of the sd ship, and in cases where the liability of the ship 
 has been contested with the consent in writing of the co, the co will 
 also pay a like proportion of three fourth pts of the costs thereby 
 incurred or pd, provided also that this clause shall in no case extend to 
 any sum which the insured may become liable to pay or shall pay in 
 respect of loss of life or personal injury to individuals from any cause 
 whatsoever. 
 
 {]{) And it is declared and agreed that corn, fish, flour, salt, fruit, and 
 seeds shall be and are warranted free from average miless general, or the 
 ship be stranded, and that sugar, rum, hides, skins, hemp, flax, and 
 tobacco shall be and are warranted free fi'om average under five pounds 
 p. c. : that all other goods, also the ship and freight, shall be and are 
 warranted free from average under three pounds p. c, unless general, or 
 the ship be stranded, sunk, or l)urnt. 
 
 (i) Waeranted free from capture, seizure, and detention, and aU the 
 consequences thereof, or any attempt thereat, and all other consequences 
 of hostilities. 
 
 jST.B. The usual deduction of one-third of the amount of repairs is 
 not made by this co in the case of ships built within the limits of the 
 United Kingdom, until after eighteen months from the date of the 
 original register. 
 
 In witness, &c. 
 
 The above and the following are respectively taken from policies used by- 
 one of the leading London companies ; but the clauses in iise vary consi- 
 derably. See " Owen's Marine Insurance Notes and Clauses/' published by 
 Sampson Low & Co., 1883. 
 
 The Marine Insurance Co, Limtd. 
 
 AVhas, &c. [as in Form 255]. Form 256. 
 
 NOW THIS POLICY OF INSUEANCE WITNESSETH that in Poiicyon^rgo. 
 conson of the premes and of the sd sum of /., the co hby promises
 
 3:3:^ POLICIES. 
 
 Form 256. and ugrees with the sd , his exs, ads, and assigns that the co will 
 
 pay and make good aU snch losses and damages hereinafter expressed as 
 may happen to the snbject-matter hby insured, which insurance is hby 
 
 declared to be upon in the ship or vessel called the , whereof 
 
 is at present master, or whoever shall go for master, of the sd ship 
 
 or vessel, lost or not lost, at and from , including risk of craft to 
 
 and from the shii?. 
 
 And the sd co promises and agrees that the insurance afsd shall 
 connnence upon the freight and goods or merchandise afsd from the 
 loading of the sd goods or merchandise on board the sd ship or vessel at [as 
 above], and continue until the sd goods or merchandise be discharged 
 and safely landed at [as above]. 
 
 \_Add iJarcKjraphs (d), (e), (/), (//), (md (i) of Form 255.] 
 
 IX WITNESS, &c. 
 
 The following arc some of the additional clauses commonly inserted in 
 marine policies : — 
 
 1. It is agreed to hold tte assured covered in case of deviation, at a premium, 
 to be mutually arranged, i^rovided notice of such deviation be given to the 
 company on receipt of advices. 
 
 2. To pay general average as per foreign custom, or per York- Antwerp rules, 
 if in accordance with the contract of affreightment. 
 
 3. Warranted free from particular average, unless the ship be stranded, 
 sunk, burnt, or in collision, the collision to be of such a nature as may rea- 
 sonably be supposed to have caused or led to damage to cargo, but this warranty 
 not to exonerate the underwriters from the liability to pay any special charges 
 for warehousing, forwarding or otherwise, if incurred, as well as partial loss 
 arising from transhipment. 
 
 4. Including all liberties as per bill of lading. 
 
 5. It is agreed that the vessel grounding between Port Said and Suez shall 
 not cancel the warranty of F. P. A. 
 
 6. It is hereby agreed and declared that in case of any dispute concerning 
 this policy, or the company's liability thereunder, the same shall be decided 
 according to English law. 
 
 7. The risk not to commence before the expiration of the previous policies. 
 
 8. Warranted free from particular average below the water, unless caused 
 by injury to the stern, or stern-post, or by fire, grounding, or contact with some 
 substance other than water. 
 
 9. With leave to dock, undock, and go in and out of graving dock, and on to 
 gridiron, as often as requix-ed, without prejudice to this insurance. 
 
 10. Sliould the above vessel be at sea on the exj^iration of this policy, it is 
 agreed to hold her covered till arrival at jjort of destination (provided that 
 before the expiration the assured shall have given notice of intention to so con- 
 tinue), at a pro rata monthly premium. 
 
 11. In the event of particular average, the claim to be adjusted as if the 
 vessel were insured separately for each voyage out and home. 
 
 12. Warranted not to be in the Baltic Sea, Black Sea, or White Sea, between 
 1st October and 1st April ; and not to sail to any port in British North America 
 before the 1st April, nor from any port there after 1st October ; nor to be 
 employed in the West Indies, or Gulf of Mexico, between 1st of August and 
 12th January ; and not to trade to the Azores. 
 
 13. Say for and during the space of calendar months commencing , 
 
 and ending (beginning and ending with Greenwich mean time), as employ- 
 ment may offer, in port or at sea, in docks or graving docks, and on ways, grid-
 
 rOEMS. 
 
 333 
 
 irons and iiontoons, at all times and in all places, and on all occasions, services Form 256. 
 
 and trades whatsoever and wheresoever, under steam or sail ; with leave to sail ~ 
 
 Avith or without pilots, to tow and assist vessels or craft in all situations, and 
 to be towed, and to go on trial trips. 
 
 14. With liberty to discharge, exchange, and take on board, goods, specie, 
 passengers and stores wheresoever the vessel may call at or proceed to, without 
 its being deemed a deviation, and with liberty to carry goods, live cattle, &c., 
 on deck or otherwise, but warranted free from any claim in respect of jettison 
 of cattle or goods carried on deck. 
 
 14'a. To return per cent, for every consecutive days the vessel may 
 
 be in port or in dock during such period, the vessel being at the risk of the 
 
 company, and per cent, for every unexpired days should the policy 
 
 be cancelled on arrival.
 
 PEIVATE COMPANIES. 
 
 Meaning of 
 ' ' private 
 company." 
 
 Inducements 
 formation. 
 
 To wliiit 
 concern not 
 vested in a 
 company is 
 liable. 
 
 INTRODUCTORY NOTES. 
 
 In this section the term " private company " is nsed in its popular 
 sense as denoting a company registered under the Act of 1862, but 
 intended to be carried on without any appeal to the public for capital. 
 The meaning of the term is now well recognised, even in the courts of 
 law : thus, in a recent case before the Court of Appeal, Lord Justice 
 Cotton said, " But here it is an established fact that when the company 
 was formed, it was intended to be a iwivate company, that is, it was 
 intended to carry it on without calling in the public or issuing any 
 shares, except to the then existing shareholders ;..,." Re British 
 Seamless Paper Box Co., Lim., 17 C. Div. 467. 
 to The following are some of the principal reasons which induce persons 
 to form private companies : — 
 
 1. Because by means of a private company a trade or undertaking, 
 or transaction, can be carried on with limited liability, and without 
 exposiug the meml^ers, in the event of failure, to the harsh provisions of 
 the Bankruptcy law. 
 
 2. Because a company has much greater facilities for borrowing money 
 than an ordinary trader, e.g., it can raise money on debentures, or 
 debenture stock, or by the issue of preference shares. 
 
 3. Because in the case of a registered company the j)0wers of the 
 directors or managers can be effectually limited and restricted by the 
 regulations, whereas in the case of an ordinary partnership this cannot 
 be done as against outsiders. 
 
 4. Because the shares in a company can be readily dealt with by way 
 of sale, mortgage, settlement, and otherwise, whereas in a partnership 
 such transactions involve serious difficulties and complications. 
 
 5. Because arrangements, e.g., as to disposition by will, subdivision of 
 interests, partial withdrawal of capital, optional retirement, compulsory 
 retirements, &c., can readily be expressed in and secured by the regu- 
 lations of a company, which if embodied in an ordinary deed of partner- 
 ship are necessarily complicated, and by no means certain to work 
 effectually. 
 
 6. Because by conversion into a company a concern is placed on a 
 pennanent footing, free from tlie liability to dislocation and even 
 destruction, which dcatli of partners, withdrawal of capital, refusal of
 
 INTRODUCTORY NOTES. 335 
 
 executors to carry on the concern on account of the unlimited Hahility, 
 bankruptcy, lunacy, and other contiugencies may involve. 
 
 7. Because the members of a company can lend money to it and 
 accept security, and otherwise deal with the company just as if they 
 Avere strangers, whereas in the case of an ordinary partnership such 
 dealings stand on a very different footing." 
 
 Private companies are of two classes — (1) those formed to start some The two 
 new undertaking ; (2) those formed to acquire and carry on some *^''^*'*^^- 
 existing undertaking. 
 
 As to class (1). — Where a few persons are about to concur in some N"ew concerns, 
 joint business or undertaking, e.g., to develop a patent ; to purchase 
 and develop a building estate ; to undertake and carry out a contract 
 for the construction of buildings or works at home or abroad ; to acquire 
 a concession or mine with a view to selling at a profit to a public 
 company or otherwise ; to print and publish a newspaper ; to acquire 
 and work a vessel ; to lend money to a trader in consideration of a 
 share of profits ; or to start any business which can conveniently ])e 
 carried on by a company ; it is now very commonly deemed expedient 
 to form a private company for the purpose. If the founders are not 
 seven in number, they get a few friends to hold a share apiece, in order 
 to make up the requisite number. 
 
 See fm-ther as to single ship companies, siqira. Form lo-i. 
 
 As to class (2). — A considerable proportion of the private companies Conversion of 
 
 formed within the last few years belong to this class. The formation of ^-'^''**'''^o 
 
 •' ^ _ concerns. 
 
 the company, and the acquisition by it of the business, is commonly 
 called the conversion of the business into a private company, and such 
 conversions are now of frequent occurrence. There are two plans of 
 conversion commonly adopted — (1) the first jilan ; according to this, a Tlie first plan 
 company consisting of the fomiders, and, if necessary, a few friends, is ° ^°^^^'^i°"- 
 formed under Part I. of the Act of 18G2 {i. e., by registration of a memo- 
 randum and articles of association), and the concern is sold and trans- 
 ferred to such company when formed in consideration of shares to be 
 allotted to the vendors ; and (2) the second plan ; under this the founders The second 
 execute a deed constituting themselves an unincorporated joint-stock com- P • 
 pany, into the joint-stock of which they undertake to bring the assets of 
 the concern, a few shares are then transferred to friends or otherwise, so 
 as to make up the number to seven, a resolution is passed to register 
 under Part VII. of the Act as a company limited by shares, and the 
 company in due course is registered accordingly. 
 
 The first plan is generally adopted where the assets consist for the 
 most part of chattels and effects capable of manual delivery, and the 
 second plan is generally reserved for cases in which the assets comprise 
 a large amount of land or other property not cajjable of manual delivery. 
 The principal object of the second plan is to avoid the heavy ad valorem 
 
 * See further, as to the formation of such companies, the author's pamphlet 
 intituled " Private Companies : their Formation and Advantages." Stevens 
 & Sons, 5th edition, 1884.
 
 336 PEIVxVTE COMPANIES. 
 
 stamp duty (10 per cent.), which, if the couvevsion be carried out under 
 the first plan, may become payable on the conveyance to tlie company 
 of assets not capable of manual delivery, for under the first plan 
 the conveyance is a " conveyance on sale," and chargeable accord- 
 ingly. It is generally regarded as a great hardship that where seven 
 persons register themselves as a company, and then, in considera- 
 tion of shares or otherwise, convey their business or property to the 
 company so . formed, the transaction should be regarded as a sale, since 
 in substance (though not in law) the same persons are both vendors and 
 purchasers. However, there can be no question that the law does 
 regard the company as a person wholly distinct from its members. As 
 was said by Lindley, J., in Ri/hope Colliery Co. v. Foyer, 7 Q. B. D. 
 485 ; 45 L. T. 410 ; 30 W. R. DO, " A company incorporated under the 
 Act of 18G2 is for no legal purpose the same as the persons Avho have 
 liecomc a corporation with distinct rights and distinct liabilities, and 
 whether the shares are bought l)y those who form it, seems to me, for 
 that purpose, utterly immaterial." Where, therefore, the ad valorem 
 duty on a conversion in accordance with tlie first plan would amount to 
 a considerable sum, it seems best to adopt the second plan, if the cir- 
 cumstances permit. The reasons why, under the second plan, no ad 
 valorem duty is payable, are as follows :— The deed constituting the 
 unincorporated company is, in law, merely a partnership agrcemeut, and 
 therefore only requires a 10s. stamp ; when, subsequently, the property 
 is conveyed to the unincorporated company, or to a trustee for the com- 
 pany, it is conveyed pursuant to the partnership agreement ; and as 
 the conveyance is not a conveyance "on sale of any property," it is 
 chargeable as a " conveyance or transfer of any kind not hereinbefore 
 described, 10s." See schedule to Stamp Act, 1870. When the company 
 is subsequently registered under Part VII. of the Act, the property 
 passes, by virtue of the Act (s. 193), to the incorporated company for all 
 the estate and interest of the unincorporated company. Hence no 
 conveyance chargeable with the ad valorem duty is ever executed. 
 
 Very commonly the legal estate is left outstanding in one of the 
 partners or some other person until after the registration, and is sub- 
 sequently conveyed to the incorporated company, but this does not 
 make any diflerence as regards duty, for the Act vests the equitable 
 interest of the unincorporated company in the incorporated company, 
 and the subsequent conveyance to it of the legal estate is not a convey- 
 ance on sale, and therefore only requires the 10s. stamp. 
 New plan A considerable number of companies have within the last few years 
 
 been formed and registered in accordance with the second jilan, and 
 although at first some doubt was raised whether such companies prior to 
 registration were "duly constituted by law" within the meaning of 
 section 180 of the Act of 18(12, so as to be capable of registration, that 
 doubt has long since then been set at rest. 
 
 It is clear (1) that at common law a joint stock company can be duly 
 constituted by deed ; (2) that the Act of 18G2 only prohibits the forma- 
 
 mucli iise('
 
 INTEODUCTOEY NOTES. 337 
 
 tion of unregistered companies when the number of members exceeds 
 twenty ; (3) that the Act of 18G2 permits the registration of companies 
 consisting of more than seven and less than twenty members, constituted 
 by deed of settlement or other\\ise since the commencement of the Act. 
 
 It may here be mentioned that it is now by no means uncommon for Partnership 
 partners or intending partners who recognise the fact that it may be accordance 
 desirable at some future time to convert their business into a private with new plan, 
 company, to adopt a deed of partnership framed in accordance with the 
 second plan. This can be done without introducing any additional 
 partners, for, as already mentioned, a common law joint stock company 
 may consist of less than seven members. 
 
 The advantage of this scheme is that if at any time it becomes 
 desirable to convert the concern into a private registered company, 
 the conversion can be effected with the gi-eatest facility. For no new 
 deed of settlement or memorandum and articles are required, no 
 valuations or accounts with a view to conversion need be made or taken, 
 and no disturbance of rights or liabiHties will be occasioned. The 
 parties have merely to pass a resolution to register, and proceed in the 
 manner above stated [p. 20(5], and in due com'se the certificate of 
 incorporation [p. 227] will be issued. But of course before registration, 
 the nimiber of the shareholders must be made up to seven, this will be 
 effected by transferring a share apiece to some relations or clerks of the 
 members of the firm. Until registration, the partners can carry on the 
 concern just as if it was an ordinary partnership. Occasionally com- 
 j)anies so formed register in the first instance as unlimited companies, 
 with a view to subsequent re-registration under the Companies Act, 
 1879. 
 
 Below will lie found a few forms relating to private companies. They Tlie fonn 
 are given by way of suggestion only, for the regulations of a private 
 company are generally much more special than those of a public com- 
 pany. In the case of conversions, the documents are sometuues con- 
 sidered by the parties with infinite care. 
 
 Some persons, in order still further to preclude any contention that Occasional 
 the arrangement emljodied in the deed of settlement savours of a sale, v^^^'^^^io^- 
 consider it expedient to appropriate the whole of the shares in the 
 original capital to the persons who bring the assets in, so that the trans- 
 ferors and transferees shall be the same persons. There is no objection 
 to the adoption of these precautions, and where it is desired to increase 
 the number of the original shareholders, it is very easy, before the 
 execution of the deed, to give the proposed shareholders an interest in 
 the assets equivalent to the shares which it is desired to appropriate 
 to them. But of course there is no need to start with more than two or 
 three members, for the number can be increased to seven hy transfer of 
 a share apiece to a few outsiders whenever it becomes desirable.
 
 PEIVATE COMPANIES. 
 
 Agi'eement for 
 sale of 
 bufsiness. 
 
 Preliminary Agrecnmi f. 
 
 Torm 257. AN AGREEMT made the day of , between A., B., aud C, 
 
 all of (hereinafter called the vendors), of the one pt, and 
 
 A. B. & Co., Linitd (hereinafter called the co), of the other pt : Whas 
 
 the vendors have for some time past carried on the business of , 
 
 at , in the Comity of : And wiias the vendors recently deter- 
 mined to transfer the sd business to a co, and with a xiew thereto they 
 have caused the co to be registered. And whas the capital of the co 
 is 100,000?., divided into 10,(»00 shares of 10/. each : 
 
 NOAY THESE PRESENTS WITNESS and declare as follows : 
 
 1. The vendors siiall sell and the co shall pchase the goodwill of the 
 sd business, and all other the ppty of the vendors specified in the schedule 
 hto. 
 
 2. As pt of the conson for the sd sale the co shall allot to the vendors 
 9,750 10/. shares in the co, which shall be considered for all pposes fully 
 
 pd up, and shall be numbered to inclusive, and such shares 
 
 shall be allotted as follows, viz. : to the sd A. 5,000, to the sd B. 4,000, 
 and to the sd C. 750. 
 
 Sale. 
 
 Consideration. 
 
 Liabilities, 
 
 Completion. 
 
 Sometimes it is desired that the vendor shall subscribe the memorandum of 
 association for the shares [^supra, p. 13,] and in such case the agreement should 
 recite that " the vendors have respectively subscribed the company's memoran- 
 dum of association for the shares following, viz., the said A. for shares, the 
 
 said B. for shares, and the said C. for shares," and clause 2 will pro- 
 vide that " as part of the consideration for the said sale the shares subscribed 
 for as aforesaid shall be deemed for all purposes to be fully paid up, and shall 
 be numbered, &c." See supra, p. 11. Sometimes the consideration consists in 
 part of debentures or debenture stock or preference shares, and sometimes in 
 part of cash to be paid out by instalments or otherwise. 
 
 3. As the residue of the conson for the sd sale, the co shall undertake, 
 pay, satisfy, and discharge all the debts and liabilities of the vendors in 
 relation to the sd business, and shall indemnify the vendors and their 
 respivc heirs, exs, and ads, estates aud effects, against all actious, claim>s, 
 and demands in respect thereof. 
 
 4. The sale shall be completed on the day of next, when 
 
 the sd shares shall be issued to the \eudors. And upon, &c. [si/pra, p. 8, 
 Clause 6].
 
 for:n[s. 
 
 339 
 
 5. The sd business shall be deemed to have beeu carried on as from Form 257. 
 
 the day of last on the co's behalf, and accordingly the Retrospective 
 
 vendors shall be allowed all paymts made and expenses incurred, and provision. 
 shall account for all moneys and other benefits received by them respively 
 in relation to such business as from that day. 
 
 Sometimes it is provided that the sale shall take effect as from some future 
 day. 
 
 G. Until the completion of the pchase the vendors shall carry on the Interim 
 business in trust for the co. provision. 
 
 7. Each of the vendors shall for a period of ten years retain and hold ^'endors not 
 in his o\yn name at least one-half of the shares to be issued to him as shares. 
 afsd. 
 
 Occasionally some such provision as the above is made. 
 
 8. The CO shall not at any time alter or attempt to alter Clauses of No alteration 
 its articles of association as originally framed, or do or suffer anything '^^^"^ "^"^ 
 to be done in contravention of the provisions contd in those clauses 
 respively. 
 
 Where the articles contain special jirovisions in favour of the vendors, e. g., 
 that they shall be entitled to retain office, it is occasionally deemed expedient 
 to fortify their position by inserting in the agreement a clause as above, so 
 that if necessary application may be made for an injunction. Where there 
 is a negative provision in a contract the court is bound to enforce it. Allman 
 V. Doherty, 3 App. Cas. 720 ; Donnell v. Bennett, 22 C. D. 83G. 
 
 9. The CO shall accept without investigation such title as the vendors Title accepted. 
 have to the ppty hby agreed to be sold. 
 
 This clause is usiially inserted in the case of a private company. 
 
 10. This agi-eemt shall be filed A\itli the Eegistrar of Joint-Stock Agreement to 
 Cos before the sd shares are issued. be fa e . 
 
 In Witness whereof the vendors have hereunto set their hands, and 
 the CO hath caused its seal to be affixed hereunto, the day, &c. 
 
 The Schedule above eeferred to. 
 [See mfra, p. 3.5G, mutatis mvtavdis.'] 
 
 See Form 32. Memorandum 
 
 of association. 
 
 The memorandum of association of a private company does not differ from 
 that of a public company, but where the company is to be formed for the 
 purpose of converting an existing business, the acquisition of that business is 
 usually specified as the first object. See supra. Form 50. 
 
 Articles of Association. 
 
 [See Form 117, snpra.1 ^A^icies of 
 
 Form 117 will serve as the basis for the articles of a private company. Forms ^^^"'^^^ ^°°' 
 257 to 279, infra, with the notes thereto, will show the modifications commonly 
 
 z 2
 
 340 PEIYATE COMPANIES. 
 
 Form 257. required. Sometimes it is considered expedient where an established business 
 
 ' is converted into a company, to insert an introduction in the articles, stating 
 
 briefly the circumstances in which the comjiany is formed. 
 
 Miscellaneous Clauses. 
 
 Form 258. i. The shares taken by the subscribers to the Memorandum of 
 Restriction on Association and those to be allotted pursuant to the preliminary agreemt, 
 issue of shares g|;^rj]i ]^q (\^^ij iggued by the directors, but no further shares shall be issued 
 ^yithout the authority of the co in general meeting. 
 
 2. Subject to any direction to the contrary that may be given by the 
 meeting that authorises the issue of further shares, all further shares 
 authorised to be issued shall be offered to the members in proportion to 
 the existing shares held by them, and such offer shall be made by notice 
 specifyiug the number of the shares to which the member is cntled, and 
 limiting a time within which the offer if not accepted will be deemed to 
 be declined, and after the expiration of sacli time, or on the receipt of an 
 intimation from the member to whom such notice is given that he 
 declines to accept the shares offered, the directors may allot or otherwise 
 dispose of the same to such persons and upon such terms as they 
 think fit. 
 
 A clause as above, or like the following, is not uncommonly inserted, in order 
 to give the existing members the option of taking up the shares. It will be 
 seen that the above clause does, but the following does not, confine the option to 
 a member's proportion. Sometimes the option is only given to the principal 
 shareholders, e.g., those holding more than 5001. capital. 
 
 Form 259. After the issue of shares in the co's capital, any further issue of 
 
 Another form shares shall be made on such terms and conditions, and cither at a 
 premium, discount, or otherwise as shall be determined by extraordinary 
 resolution, and unless otherwise determined by extraordinary resolution, 
 all further shares authorised to be issued must in the first instance be 
 offered to all the existing members for the time being. Such offer shall 
 be made by notice specifying the number of shares authorised to be 
 issued, and the terms of issue, and stating that the members are at 
 libty to tender for the same during a period to be specified in the 
 notice, and not being less than seven days from the date thereof. Each 
 member shall be at libty to make a tender in writing, delivered at the 
 office within the period afsd, for such shares or any of them on the terms 
 specified, and the directors shall allot the shares to the members who so 
 tender, and in the event of more shares being tendered for than are 
 authorised to be issued, the shares shall (as nearly as may) be allotted to 
 the tendering members in iirojioition to the capital already held by them 
 respively. The directors shall decide by lot or otherwise any difficulty 
 as to such allotmt. .
 
 FOEMS. 
 
 Transfer and Transmission. 
 
 341 
 
 Occasionally the right of transfer is left unfettered, but in most cases it is 
 considered desirable to insert special provisions so as to prevent the introduc- 
 tion of objectionable members, and to secure to existing members a right of 
 preemption when a member desires to retire, e.g. : — 
 
 1. No share shall, save as provided by Clause 8 hereof, be transferred Form 260. 
 
 to a person who is not a member so long as any member is willing to Restricted 
 
 pchase the same at the fair value. right of 
 
 transfer. 
 
 Sometimes it is provided that these restrictive clauses shall not apply to 
 certain shareholders, e.g., the founders of the concern, or to part only of the 
 shares held by them^ or only to a certain class of shares, e.g., those which are 
 to be issued to the employes. 
 
 2. In order to ascertain whether any meml3er is willing to pchase a Notice, 
 share, the person, whether a member of the co or not, proposing to 
 transfer the same (hereinafter called the retiring member), shall give 
 notice in writing (hereinafter called the transfer notice) to the co that he 
 desires to transfer the same. Such notice shall specify the sum he fixes 
 
 as the fair value, and shall constitute the co his agent for the sale of the 
 share to any member of the co at the fair value. The transfer notice 
 may include several shares, and in such case shall operate as if it were a 
 separate notice in respect of each. The transfer notice shall not be 
 revocable except Avith the sanction of the directors. 
 
 The words " whether a member of the company or not," are inserted in order 
 to cover the case of executors and other persons taking by transmission. Some- 
 times, instead of providing as above, it is provided that a member who desires 
 to transfer to a stranger must send in the name and address of the proposed 
 transferee, and that the directors may approve or disapprove, and, if they dis- 
 approve, the member may require them to find a piu-chaser. 
 
 3. If the CO shall, within the space of twenty-eiglit days after being Company'^ 
 served with such notice, find a member willing to pchase the share P°^'"'- 
 (hereinafter called the purchasing member), and shall gi^'e notice thereof 
 
 to the retiring member, he shall be bomid, upon paymt of the fair ^'alne, 
 to transfer the share to the purchasing member. 
 
 Sometimes it is desired to provide that the company shall j^urchase the share, 
 but there is grave doubt whether such a provision is valid in the case of a com- 
 pany limited by shares. See supra, p. 88. Sometimes the foregoing provisions 
 are modified thus : — 
 
 " A person, whether a member of the company or not (hereinafter called the 
 retiring member), who desires to transfer any share to a person who is not a 
 member of the company, must serve the company with notice in ^vriting (here- 
 inafter called the transfer notice) that he desires to make such transfer. The 
 transfer notice must specify the name and address of the proposed transferee, 
 and the sum at which the retiring member fixes the fair value of the shares, 
 and within fourteen days after the service of such notice the directors shall 
 give the retiring member notice of their approval or disapproval of the trans- 
 fer, and, if they approve, the proposed transfer may be forthwith carried out 
 (subject only to clauses hereof). But if they disapprove the transfer
 
 342 
 
 PRIVATE COMPANIES. 
 
 Form 260. 'lotice shall be deemed to constitute the company the agent of the retiring 
 — member for the sale of the share to any member of the company, at the fair 
 
 value, and such authority shall not be revocable, and, if the company shall, 
 
 within the space of twenty-eight days, &.C. 
 
 Arbitration. 4. Ill casG any difference arises between the retiring member and the 
 
 purchasing member as to the fair value of a share, the diflPerence shall be 
 referred to arbitration in manner hereinafter proyided [but so that the 
 amount awarded shall not in any case exceed by more than [10] p. c. 
 the capital pd up on the shares]. 
 
 The words in brackets are occasionally inserted. 
 
 Sometimes it is provided that "the fair value," or "the current transfer 
 price," shall be a sum equal to the amount paid up on the share, or a sum to be 
 fixed by the auditor, or a sum to be fixed at the ordinary general meeting in 
 each year, e.g. : — 
 
 " At the ordinary general meeting in each year the company shall, by resolu- 
 tion, declare what is the fair value of a share, and, upon any sale pursuant to 
 CI. hereof, the amount so declared, with the addition thereto of 5 per cent, 
 per annum from the date of the meeting to the date of tlie completion of such 
 sale (less any dividend in the meantime paid), shall be deemed to be the fair 
 value for the purpose of CI. hereof." 
 
 Sometimes CI. 4 is omitted, and, instead of giving, by CI. 6, free right to 
 transfer at any price, it is provided that the party may sell and transfer to any 
 person, but so that the price shall not be less than the sum specified in the 
 transfer notice, with provisions for statutory declarations by vendor and pur- 
 chaser as to the price, &c. Sometimes it is provided that, in case of difference, 
 the auditor shall fix the fair value. 
 
 Default by 
 
 retiring 
 
 member. 
 
 Default by co. 
 
 How shares 
 to be offered 
 to members. 
 
 .5. If in any case the retiring member, after having become bound as 
 afsd, makes default in transferring the share, the co may receive the 
 pchase-money, and shall thereupon cause the name of the purchasing 
 member to be entered in the register as the holder of the share, and shall 
 hold the pchase-money in trust for the retiring member. The receipt of 
 the CO for the pcliase-money shall be a good discharge to the purchasing 
 member, and after his name has been entered in the register in purported 
 exercise of the afsd power, the validity of the proceedings shall not be 
 questioned by any person. 
 
 T). If tlie CO shall not, within the space of twenty-eight days after 
 being served with the transfer notice, find a member willing to pchase 
 the shares, and give notice in manner afsd, the retiring member shall at 
 any time within three calendar months afterwards be at libty, subject 
 to Clause 9 hereof, to sell and transfer the shares (or those not placed) 
 to any person and at any price. 
 
 7. The CO in general meeting may make and from time to time vary 
 rules as to the mode in which any shares specified in any notice served 
 on the CO pursuant to clause 2 hereof shall be oifered to the members, 
 and as to their rights in regard to the pchase thereof, and in parlar may 
 give any member or class of meml)crs a preferential right to pchase the 
 same. Until otherwise determined, every such share shall be offered to 
 the members in such order as shall be determined by lota drawn in
 
 FOEMS. 
 
 843 
 
 regard thereto, and the lots shall be drawn in such manner as the Form 260. 
 directors think fit. ' 
 
 Sometimes it is provided that the shares shall be offered, (a), as in Form 
 259, or, (6), to the shareholders successively, according to the number of 
 shares held by them, or, (c), to some particular shareholder, e.g., the founder, 
 or, (d), to the members whose names are entered in a register of applicants in 
 rotation. 
 
 8. Any share may be transferred by a member to any son or daughter, Eight to 
 
 or son-in-law, or mfe or husband of such member, and any share of ti''^"^^^'^' *<* 
 
 ■^ sou, &c. 
 
 a deceased member may be transferred by his exs or ads to any son or 
 
 daughter, or son-in-law, ^^•idow, (u- widower of such deceased member, 
 
 and Clause 1 hereof shall not apply to any such transfer. 
 
 Sometimes power is also given to transfer, with the approval of tlae board, to 
 the trustees of any settlement made by a member, or to any person who has 
 been appointed or elected a director. 
 
 'J. The directors may refuse to register any transfer of a share, («), General power 
 
 to refuse 
 transfer. 
 
 where the co has a lien on the share ; (h), where it is not proved to their *° '^'*^^'^'*^ 
 
 satisfon that the proposed transferee is a responsible person ; (c) 
 .where the directors are of an opinion that the proposed transferee is not 
 a desirable person to admit to membership. But paragraphs (J) and ic) 
 of this clause shall not apply where the proposed transferee is already a 
 member [holding more than shares], nor to a transfer made pur- 
 suant to Clause 8 hereof. 
 
 Sometimes the words in brackets are inserted so as to exclude small share- 
 holders from the benefit of tlie exception. 
 
 Traxsmission. 
 
 The transmission clauses are usually framed as above, p. 117, and, where the 
 right of transfer to strangers is restricted, as in Form 2G0, the executors and 
 others claiming by transmission will be bound thereby. Sometimes it is 
 desired, in the event of death, to provide for paying out part of the capital of 
 the deceased. This cannot be effectually provided for in the case of a limited 
 company, since it would amount to a reduction of capital. To meet this diffi- 
 culty it is not uncommon, where a business is converted into a company, to 
 provide that the vendors shall take part of the consideration in debentures, 
 which can, if desired, be framed so that the interest shall only be payable out 
 of profits [sv.'pra, p. 275], and so that the principal shall not be called in till 
 the death of the person to whom they are issued. See Form 220, supra. 
 
 CoiMPULSORY Retirement. 
 
 Provisions for compulsory retirement are becoming very common. The 
 power to enforce retirement in certain si^ecified cases (e.g., where a member 
 ceases to be employed by the company), is commonly vested in the directors. 
 See Form 261 et seq. But it is frequently deemed desirable to enable a large 
 majority of the shareholders (e.g., nine-tenths in value) to exercise the power 
 without assigning any reason. Such a power seems peculiarly desirable where 
 the great mass of the capital is likely to be vested in a few persons.
 
 314 
 
 TEIVATE COMPANIES. 
 
 Porm 260. Suppose, for example, that a shareholder who has been brought into a coni- 
 
 pany merely to keep the number up to seven, or because he appeared to be a 
 
 deserving employe, is found to be objectionable, he cannot, in the absence of 
 such a power, be got rid of against his will, except by winding uj} the com2:)any. 
 Sometimes the power is vested in the original owner of the company's busi- 
 ness and his executors, so long as a specified number of shares stand in his 
 name, and is so framed that he or they may take the shares at the fair value, 
 or at a specified price, e.g., par. 
 
 Form 261. 
 
 Retirement of 
 
 dismissed 
 
 employe. 
 
 Whenever any member of the co [holdinf;; less than shares] who 
 
 is employed by the co in any capacity, is dismissed from such employmt 
 [for breach of faith, misconduct, or other offence which] the directors 
 [deem prejudicial to the interests of the co they] may at any time 
 
 within days after his dismissal, resolve that such member do retire, 
 
 and thereupon he shall be deemed to have served the co with notice pur- 
 suant to Clause hereof, and to have specified therein the amount 
 
 pd up on his shares as the fair value. Notice of the passing of any 
 such resolution shall 1)e given to the member affected thereby. 
 
 Form 262. AVhenever any holder of any C shares ceases to be employed by the co 
 Another. ^^^^ directors may at any time within days afterwards resolve co, &c. 
 
 Sometimes the power is not confined as in Form 261 to dismissal, but is 
 framed as above or is exercisable only as regards a particular class of shares. 
 Occasionally the holder is given a limited time to retire, and only in default is 
 deemed to have given the notice. 
 
 Form 263. The holders for the time being of nine-tenths of the issued capital may 
 at any time serve the co with a requisition to enforce the transfer of any 
 parlar shares not held by the requisitionists. The co shall forthwith 
 give to the holder of such shares notice in writing of the requisition 
 (with a copy of this clause subjoined), and unless within 14 days after- 
 wards the holder shall give to the co notice of his desire to transfer the 
 same, he shall be deemed at the expiration of that period to have given 
 
 such notice in accordance with Clause hereof, and to have specified 
 
 therein the amount pd up on the shares as the sum he fixes as the fair 
 value. For the imposes of this clause any person entled to transfer 
 a sliare under the transmission clause shall l)c deemed the holder of such 
 share. 
 
 Compulsory 
 retirement. 
 
 Form 264. 
 
 Compulsory 
 retirement. 
 
 See note above as to compulsory retirement. This foi"m can be used where 
 the regulations contain provisions as in Form 200, but where those provisions 
 are not used a more elaborate form is requisite, as, for example, the following : 
 
 1. The registered holders for the time being of not less than nine- 
 tenths of the issued shares may at any time serve the co with a requisi- 
 tion in writing requiring the co to enforce the transfer of any parlar 
 shares not held by the requisitionists. 
 
 2. When any such requisition has been served the co shall give notice 
 in writing thereof to the owner of the shares (hereinafter called the
 
 POEMS. 34; 
 
 owner), and he shall thenceforth hold the same snl:)ject to the following Form 264. 
 provisions : — 
 
 3. At any time within 28 days after the service of such requisi- 
 tion tlie CO may on behalf of the o\nier contract with auy member 
 or members of the co for the sale to him or them at the fair value of the 
 shares or auy pt thereof, and upon any such contract being made shall 
 forthwith give notice thereof to the owner. 
 
 Sometimes the member is given the option of finding a purchaser himself, 
 thus : — " At the expiration of fourteen days after the service of such notice 
 (unless the owner shall in the interval transfer the shares with the approval of 
 the directors) the company may at any time within twenty-eight days, to be 
 computed, &c. 
 
 4. The fair value of the shares contracted to be sold as afsd shall be 
 ascertained as follo^^'s, that is to say : — when any such contract has been 
 made, the person with whom the same is made (hereinafter called the 
 purchasing member) must within seven days after the date of the 
 contract give to the owner notice ill A\Titiug, stating the sum at which 
 he estimates the fair value of the shares, and the sum so stated shall be 
 deemed to be the fair value if it is not less than the amount of the 
 capital pd up on the shares, plus ten p. c. If it is less than that amount 
 the owner may within seven days after Ijeing served with such notice 
 serve purchasing members with a notice in writing, stating that he 
 disputes the estimate contd in the first notice, and specifying the 
 sum he is willing to accept as the fair value. If the co, within seven 
 days, assents and notifies to the owner such assent, such last-mentd 
 sum shall be deemed the fair value, and if the purchasing member does 
 not assent within such seven days, he shall be deemed to dissent, and the 
 difference as to the fair value shall be referred to arbitration [but so 
 that the sum awarded as the fair value shall not exceed the amount of 
 the capital pd up on the shares by more than /. p. c.]. 
 
 5. When the fair value has been ascertained as afsd the pchase shall 
 be completed at such time and place as the purchasing member shall 
 notify to the owner, and thereupon the owner shall transfer the shares 
 to the purchasing member [or his nominee, approved by the co], and the 
 purchasing member shall pay the fair value thereof to the owner. 
 
 G. At any time before the fair value has been ascertained, the pm-- 
 chasing member may deposit in some [London] bank in the name of two 
 trustees nominated by the co a sum equal to the capital pd upon the shares 
 contracted to be sold to him, j^lus twenty p. c, to be held by them as a 
 secm'ity for the paymt to the owner of the fair value of such shares, 
 when ascertained, and thereupon the owner shall, at the request of the 
 purchasing member, transfer the shares to him or his nominee, provided 
 such nominee is approved by the co. 
 
 7. If in any case the owner makes default in transferring the shares, 
 as hinbefore provided, the co may remove his name from the register in 
 respect of such shares, and may enter the name of the purchasing 
 member, or his nominee afsd, as to holders, and the validity of the
 
 346 PEIVATJ3 COMPANIES. 
 
 Form 264. iDroceedings shall not subsequently be inipeaclied by any person. But 
 the CO shall not act under this clause unless and until the fair value 
 lias been ascertained and pd to the co in trust for the owner or the 
 amount mentd in the last preceding clause hereof has been duly deposited 
 as thereby provided. 
 
 8. If l;)y reason oi default on the pt of the purchasing member the 
 pchase is not completed within fourteen days after the fiiir value of the 
 shares lias been ascertained, the owner may, by notice in wi'iting to the 
 purchasing mend)er, annul the contract for sale. 
 
 !). In the seven last preceding clauses hereof "the owner" means the 
 registered holder of the shares and the exs or ads of a registered holder 
 whilst any shares or stock remain standing in the name of such registered 
 holder. 
 
 10. Any such reference as afsd shall be made to two persons, one to 
 l)e appointed by each of the parties in difference, and the cost of and 
 incident to the reference and award shall be in the discretion of the 
 arbitrators or umpire who may determine the amount thereof, or du'ect 
 the same to be taxed as between solor and client, or otherwise, and 
 may award by whom and to whom and in what manner the same shall 
 be borne and pd, and the submission may be made an order of the High 
 Court of Justice on the applicon ex parte of either party and the death 
 of any party shall not operate as a revocation. 
 
 If the regulations contain provisions for arbitration, this clause will not be 
 requisite. 
 
 11. The CO in general meeting may fi'om time to time determine the 
 order or manner in ^\'hich the members shall be at libty to tender for 
 the shares to be taken, pursuant to any such requisition as afsd, and 
 generally as to their rights or privileges in regard thereto : And until 
 otherwise determined, the co, as soon as conveniently may be after the 
 service of the requisition, shall give notice in writing to each member 
 specifying the share, and stating that he is at libty within a time to be 
 limtd therein, to tender for the pchase of the whole or any pt thereof at 
 the ftiir value as provided by the co's articles of association, and each 
 member shall be at libty to make a tender in writing, delivered at the 
 office within the time so limtd for such shares, or any pt thereof, and the 
 CO, on behalf of the owner, shall accej)t the tenders so made, if sufficient 
 shares be available, and if the shares tendered for exceed the amount 
 available, the tenders shaU rank for acceptance in such order as shall be 
 settled by lot, and the directors may cause lots to be drawn accordingly, 
 and no director shall l)e precluded from tendering, and any difficulty 
 as to apportionmeiit shall be settled by the directors. 
 
 Forfeit lire. 
 
 Occasionally in a private company the provisions for forfeiture may be 
 omitted, it being considered that the pi'ovisions for lien are sufficient
 
 FORMS. 347 
 
 PtESTRICTIOXS OX MEMBER?^. 
 
 A member of the co shall not [without the co's consent] either s(jlely Form 265. 
 or jointly with, or as manager or agent for any other person, directly or Forfeiture 
 indirectly carry on or be engaged or concerned or interested as a share- "^^'^1'^^.^.^^ j^^ 
 holder or otherwise in any business which the co is authorised to carry rival concern. 
 on, and the directors may by resolution forfeit the shares of any member 
 who acts in contravention (if this jirovision, and Clause 30 [see siqira, 
 p. 123] shall apply. 
 
 In a private company a clause as above is not unusual. Sometimes it is 
 
 confined to directors, and occasionally provision is made for notice before 
 
 forfeiture, and sometimes provision for lic^uidated damages for breach is 
 inserted. See supra, p. 9. 
 
 A person wIkj ceases to be a member of the co shall not at any time Form 266. 
 within five years, to be computed from the time when he so ceases to be jjgt;,!j^^ 
 
 a member, either solely, &c. [Form 205] in the business of a membernot 
 
 within 100 miles of the City of . *° '°™P"*"- 
 
 Provisions as above are very common. Sometimes they are restricted to the 
 l^ersons who have held a particular class of shares intended for employes. 
 
 Conversion of Sliares into StocJc. 
 
 These clauses are eommonly omitted ; in the case of a pi-ivate company they 
 are of little practical use. 
 
 Increase and Redaction of Capital. 
 
 See Form 117. Where the issue of shares is restricted as in Forms 258 or 
 259, supra, the new shares are usually made subject to the like restrictions. 
 
 Proceedings at Gene rat Meetings. 
 
 Sometimes it is provided that a poll may be demanded by any member, and 
 that every poll shall be taken at the meeting without adjournment, and occa- 
 sionally that the chairman shall not have a casting vote. 
 
 Directors. 
 
 A., B., and C. shall be the first directors and each of them shall be Form 267. 
 entled to continue in office so long as he holds capital of the nominal Directors, 
 amount of 1. at the least. 
 
 In the case of a private company it is not unusual to provide that some 
 person or persons, e. g., the founder or founders, shall be entitled to hold office 
 for a term of years or for life, provided he or they continue to hold a certain 
 number of shares, and sometimes a founder is empowered at any time and from 
 time to time to appoint and remove directors or some of the directors. Occa- 
 sionally a founder is empowered to authorise his executors or trustees whilst 
 holding a certain number of shares to appoint directors, and sometimes it is 
 provided that the executors or administrators or trustees of the will of a 
 founder, so long as a certain number of shares remain standing in his name or
 
 318 
 
 PRIVATE COMPANIES. 
 
 Form 267. in the name of the trustees of his will, may appoint directors. Occasionally 
 ~ any shareholder entitled to a specified proportion of the capital is authorised 
 to appoint one or more directors or a specified proportion of the board. Where 
 the founder or founders hold office on special terms in conjunction with other 
 directors appointed by themselves or otherwise, they are generally described in 
 the articles as "■ the governing directors," or "the permanent directors," or 
 " the life directors," Avhilst the other directors are called the ordinary directors. 
 Sometimes, however, it is provided that all or some of the directors shall retire 
 each year, and very connnonly Form 275, infra, is used. Occasionally, e. g., 
 in the case of single-ship companies Isiq^ra, p. 103,] the original owners or 
 some of them, or some firm in which they are interested, are appointed 
 "managers" upon special terms, and subject to the control of the company in 
 general meeting. Where this is done the articles generally provide that the 
 company may at any time or in certain events appoint directors and determine 
 their rotation, qualification, remuneration, &c. 
 
 Permanent 
 directors. 
 
 Form 268. A., B., and C. shall be the first directors, and each of them shall be 
 entled, subject to Clauses , and hereof to retain office so long as he 
 
 holds not less than of the shares specified [or to be allotted to him 
 
 piu'suant to the agreemt referred to] in Clause hereof, and whilst 
 holding office by virtue of this jirovision shall be called a permanent 
 director, and if by resignation he ceases to be a permanent director, he 
 shall, if qualified, be deemed to have been thereupon elected to be an 
 ordinary director. 
 
 Sometimes the following words are added : — " And shall be entitled to hold 
 office as such so long as he lives [or until the second ordinary meeting next 
 following the date when he ceases to be a permanent directoi-]." 
 
 Form 269. 
 
 Managing 
 director. 
 
 Vacancy by 
 death. 
 
 Subsequent 
 vacancies. 
 
 Special 
 arrangement. 
 
 1. The sd A. shall be the first managing director, and shall, subject 
 only to Clauses hereof, be entled to hold the office for life, but 
 
 may resign at any time. 
 
 '2. If the sd A. vacates office by resignation, he may fill up the 
 vacancy by appointing some competent person to the office, provided 
 such appointmt be made by writing under the hand of the sd A. within 
 fourteen days after he so vacates office. 
 
 3. If the sd A. vacates office by death, and at the time of his death 
 he is entled to not less than one-third of the issued capital, such person 
 shall succeed him as managing director as shall be appointed by his will, 
 or any codicil thereto, or, in default of any such appointmt, as shall be 
 appointed by his exs or ads, within six weeks after his death. 
 
 4. Subject to Clauses 2 and 3 hereof, any vacancy in the office of 
 managing director may be filled up by an extraordinary general meeting, 
 and any extraordinary general meeting may, at any time, subject to any 
 arrangemt made pursuant to thei next following clause hereof, remove 
 any general manager except the sd A. from office. For the pposes of 
 exercising any of the powers conferred on a general meeting by this 
 clause, any member or members holding not less than shares may 
 convene an extraordinary general meeting. 
 
 5. Any managing director as afsd may be appointed for a fixed tenn
 
 FOEMS. 319 
 
 or otherwise, and upon such terms as to remiiiieratioii, and in all other Form 269. 
 respects as may, with tlie sanction of the co in general meeting, be 
 arranged. 
 
 1. The firm of A. B. & Co., which now consists of the first four sub- Form 270. 
 scribers hto, and their successors, shall be the managers of the co, so Firm appointed 
 long as they are able and willing to act as such, and any firm which, by mauagers. 
 deatli or retiremt of any partner, or by the admission of any new partner, 
 
 or otherwise, shall from time to time, and at any time hereafter, succeed 
 to the business heretofore carried on by the sd existing firm, shall, for 
 the pposes (if this clause, be deemed the successors of the sd existing 
 firm [provided that some meml)er of the sd existing firm is a member of 
 such succeeding firm], and the co shall accordingly enter into an agreemt 
 with the existing firm in the terms of the draft, a copy of which is set 
 forth in the 3rd schedule to the draft agreemt mentd in Clause 3 hereof. 
 
 2. The qualification of the managers shall Ije the holding by them, or 
 some one of them, of capital of the co of the nominal value of /. 
 The managers may act before acquiring their qualification, but shall 
 vacate office if they do not acquire it within three months after becoming 
 managers. 
 
 3. The managers may regulate their proceedings in such manner as 
 they from time to time think fit, and they shall be under no obligation 
 to hold board meetings ; and, unless otherwise arranged among them- 
 selves, each member of the firm which shall for the time being be 
 manager may exercise all the powers, authorities, and discretions hby 
 vested in or assigned to the managers. 
 
 4. If the finn for the time being entled under Clause 1 hereof to be 
 managers shall become disqualified, or shall decline to act as managers, 
 the conmiittee shall, until otherwise determined by the co in general 
 meeting, be entled to exercise all the powers, authorities, and discretions, 
 and shall perform all the duties hby vested in or assigned to the 
 managers. 
 
 The above was used in the case of a ship company. The articles appointed a 
 consultative committee with limited powers. The general powers both external 
 and interna] were vested in the managers. 
 
 The permanent directors or permanent director for the time being Form 271. 
 may at any time, and from time to time, by iustrumt in writing, appoint p ^^ ^, 
 any persons to be ordinary directors, and may remove any persons so appoint other 
 appointed. Every such appointmt or removal shall be recorded in the '^"'■'^ctors. 
 co's minute book. 
 
 The CO, in general meeting, may at any time appoint a managing Form 271a. 
 director to conduct the business of the co, and may make such appointmt ;r ~r 
 
 '' . ^ ^ Power for 
 
 on such terms, and may from time to time vest m or assign to any meeting to 
 managing director such powers, discretions, and duties, and may impose ^rpomt
 
 350 
 
 PEIYATE COMPANIES. 
 
 managiii; 
 director. 
 
 Form 271a. on him sncli regulations as may seem expedient, and may remove any 
 " managing director so appointed, and may fill up any vacancy in the 
 office of managing director, and, for the impose of exercising any of the 
 powers conferred by this clause, any managing director, and any member 
 or members holding not less than shares, may convene a meeting. 
 
 Sometimes no directors are appointed by the articles, but a clause as above 
 is inserted. In such case the clause as to directors will be conditionally 
 shortened, and the word "manager" will be substituted throughout for 
 " directors." 
 
 Form 272. The directors shall be pd for their services out of the funds of the co 
 
 ;; v. " the remuneration following, that is to say, the sd A. and B. each 5007. 
 
 Kemuneration ■ i ^ ' ^ 
 
 of directors, p. a., and the sd C. 300/. p. a., and each of the other dn-cctors such sum 
 
 as the CO in general meeting [or the permanent director] shall from time 
 
 to time determine. 
 
 The provisions as to remuneration of directors vary considerably. In some 
 cases the principal directors take no remuneration but have power to remu- 
 nerate the ordinary directors. In others they take a fixed salary as above. 
 
 Sometimes it is desired to provide, as in an ordinary partnership, that a 
 member shall be at liberty to draw out a fixed allowance with the obligation to 
 recoup if at the end of the year it appears that his share of profits do not 
 amount to what he has drawn, but in a company there is grave difficulty in 
 makino- any such provision inasmuch as dividends can only be jiaid out of 
 profits. However, the diificulty is sometimes met, where the member is a 
 director, by giving him the fixed allowance as remuneration for his services as 
 director with liability to recoup as aforesaid. 
 
 Form 273. Each of them, the sd A. B. and C, whilst he remains a j)ermanent 
 J . 7 director, shall be entled, without charge, to have his son, or any one of 
 
 son. his sons, instructed at the co's works in the business or businesses for 
 
 the time being carried on by the co. 
 
 This clause varies a good deal in form. Sometimes power is given to nomi- 
 nate by will a son for instruction. Sometimes any holder of a specified number 
 of the shares is given the power. 
 
 Attention. 
 
 Form 274. Each of the ordinary directors shall devote the whole of his time and 
 attention to the business of the co, Imt the sd A. and B. shall not l)e 
 bound to devote more time and attention to the co than they rcspively 
 may think fit. 
 
 Some sl^ch provision as above is not uncommon. 
 
 What time 
 directors to 
 L'ive. 
 
 EOTATIOX. 
 
 Form 275 Until otherwise determined by extraordinary resolution, the directors 
 ■ for the time being shall continue to hold office, subject only to Clauses 
 
 Continuance of . ' . , , -i i /• ' 
 
 directors in [ds to ilisquahficaiion and jmiucr to remove} hereof. 
 
 office. 
 
 In a private company a clause as above is very common, the intention being 
 that the directors shall not retire by rotation but shall remain in office until
 
 FOEMS. 351 
 
 they become disqualified by bankrujitcy, &c., or are removed. When such a Form 275. 
 
 clause is inserted the usual rotation clause will be omitted. When rotation 
 
 clauses are inserted it is usually provided that they shall not apjoly to the 
 governing directors. 
 
 PiiocEEDixfis OF Directors. 
 
 It is sometimes provided that (as in an ordinary partnershii) ) each director 
 may do various things without a board meeting, and not uncommonly it is 
 provided as follows : — 
 
 At any meeting of the dii-ectors a director shall have one vote for Form 276. 
 every share held by him, and votes may be given either personally or by y . ^ " 
 
 proxy, but a proxy must be one of the directors, and must be appointed directOTs' 
 in writing under the hand of the appointor. 
 
 meetings. 
 
 Sometimes it is i^rovided that no resolution shall be valid if a particular 
 director dissents, or that certain business shall only be transacted with the 
 concurrence of a particular director. 
 
 Power of Directoks. 
 
 Sometimes the powers of directors are limited as i-egards certain things, e.g., 
 borrowing money, entering into contracts beyond a certain value, increasing- 
 capital, &c. 
 
 Dividends. 
 
 See Form 117. 
 
 Occasionally it is provided that dividends shall be applied as in Form 277. 
 Where there are preference shares provision will be made accordingly. See 
 Form 12G. 
 
 So long as any [C] share is not fully pd up, the holder shall only be Form 277. 
 pd out of the dividends fi'om time to time declared thereon such a sum 77 7 
 
 J- Interest on 
 
 as with the amount (if anything) previously pd to the holder of such unpaid shares. 
 share pursuant to this clause shall be equal to interest at the rate of 
 5 p. c. p. a. on the capital pd up thereon computed from the time when 
 such capital was pd up, and the excess shall be retained by the directors 
 and applied in paying up such share. 
 
 Not uncommonly it is confined to shares issued to employes. Sometimes the 
 retention is only to operate until the share is paid up to the extent of 80 per cent. 
 
 Accounts. 
 
 These are generally in common form. See Form 117. But sometimes a 
 clause as follows is inserted : — 
 
 A copy of such balance-sheet and report shall, for seven days pre- Form 278. 
 viously to the meeting, be kept at the office open for the inspection of 
 members, but the same shall not be circulated, and no copy of, or extract 
 from, the same shall be taken or made. 
 
 Balance sheet. 
 
 The object in some cases is to avoid the expense, and in others to avoid dis- 
 closure of facts which might lead to the establishment of rival undertakings.
 
 35a 
 
 PEIVATE COMPANIES. 
 
 Form 279. The accoimts relating to the co's afRiirs shall be audited in such 
 manner as the co in Q;eneral meeting shall from time to time determine. 
 
 Audit, 
 
 The above is sometimes inserted instead of the usual provision. 
 
 Deeds of Settlement. 
 
 Where a conversion is to be effected in accordance with the new plan (s)tj)r<x, 
 p. 335), the iinincorporated company is usually constituted by deed. Sometimes 
 the deed commences " This indenture made, &c.," and is called the deed of 
 settlement ; and sometimes it commences " Articles of Association made, &c." 
 The object of framing it in the manner last mentioned is to enable the parties 
 to describe the regulations after incorporation as the Ai-ticles of Association, 
 since that term is more familiar than deed of settlement. 
 
 Porm 280. ARTICLES OF ASSOCIATION [or, THIS INDRE] made the 
 
 Deed of ^ttle- ^laj of , betNvecn A. B. and C, of , of the first pt, D., of , 
 
 lueut. of the second pt, and The several other persons who [have signed 
 
 their names and affixed their seals, and] shall [hereafter] sign their 
 names and affix their seals to these presents, of the third pt : 
 WITNESSETH that each of the several persons pties hto of the first 
 and third pts respively, so far as relates to the acts and deeds of himself 
 and herself respively, and his and her resjnve heirs, exs, and ads doth 
 hl)y covenant with the sd I), (as trustee for or on behalf of the others of 
 them), and also as a separate covenant with each of the others of them, 
 that the several persons pties hto of the first and third pts respively, 
 and the several other persons who shah become members of the -co in 
 manner hereinafter mentd, shall, whilst h(.)Iding shares in the capital 
 of the CO, be and continue (until dissolved under the provisions in that 
 behalf hereinafter contd) a joint-stock co under the name hereinafter 
 specified, and that such co and the members thereof shall be subject to 
 the regulations following (that is to say) : — 
 Interpretation. 1. lu these presents, unless there be something in the subject or 
 context inconsistent therewith — 
 
 " The co " means the co hby constituted. 
 
 " The members " means the holders for the time being of shares in 
 the capital of the co. 
 
 " The registration of the co " means the registration of the co pur- 
 suant to Pt. A^II. of the Companies Act, 18G2. 
 
 '• The office " means, prior to the registration of the co, the princiijal 
 place of business of the co, and, after the registration of the co, means 
 the registered office for the time being of the co. 
 
 '' The register " means the register of members to be kej^t as herein- 
 after provided. 
 
 " Mduth " means calendar month. 
 
 "Special resolution" and " extraordinary resohition " respively have 
 the meanings assigned thereto by the Companies Act, 1862. 
 
 " The directors " means the directors for the time being. 
 
 " The articles of association " means these presents.
 
 FORMS. . 353 
 
 '• In writiug" means written or printed, or partly written or partly Form 280. 
 printed. 
 
 AVords importing the singular shall include the plural nmnber, and 
 vice versa. Words importing the mascuUne shall include the feminine 
 gender. Words importing persons shall include coiporations, mp faffs 
 mufamUs. 
 
 '2. The name of the co shall be A. B. and Co. The name may at any Name, 
 time before the registration of the co be changed or modified by a 
 general meeting. 
 
 3. Until after the registration of the co there shall not at any time be Numher of 
 more than twenty members, siqyra, p. 91. U^ed'^ 
 
 4. The office shall be situate in England. Office. 
 
 5. The objects for which the co is established are : — Objects. 
 («.) To acquire the goodwill of the business of a , now carried on 
 
 by the sd A., B., and C. in partnership together, under the firm or style 
 
 of A. B. & Co., at , and elsewhere, and to acquire and undertake 
 
 the whole or any pt of the assets and liabilities of the si A., B., and C, 
 in connection with such Ixisiness. [^Hcre /rill follow fhe fvrfher objecfs, 
 see supra, Form (V.), cf spq.'] 
 
 6. The capital of the co shall be 1(10,000/., divided into 10.000 shares Capital. 
 of 10?. each. 
 
 7. Of the sd lO.OoO shares the sd A. shall be eutled to .5,000, Specific 
 
 numbered to inclusive, the sd B. shall be entled to 4,000, of shares! ^°° 
 
 numbered to , inclusive, the sd C. shall be entled to 750, num- 
 bered — — to , inclusive, and each of the several other persons 
 
 parties hto of the third pt shall be entled to the number of shares in the 
 capital of the co set opposite his signature hto. 
 
 / 8. The assets specified in the schedule hto shall be brought into the Assets to be 
 joint stock by the sd A., B., and C, and, having regard to the obhga- ° 
 tions imposed on the co by Clause 10 hereof, shall be taken to be of the 
 value of 97,500/., and the shares to which the sd A., B., and C. ai"e to be 
 entled as afsd shall be deemed to be fully pd up by means of the assets so 
 brought in. 
 
 If desired insert after the word ' afsd ' the words " and also the [4] shares to 
 which E., F., G., and H. are to be entitled." In such case A., B., and C. will 
 take [4] shares less. 
 
 Sometimes the founders desire to take part of the value of their interest in 
 the concern in debentures or debenture stock [si?|3ra, pp. 273, 279]. In such 
 case this clal^se will declare that the assets are brought in subject to a lien in 
 favour of the founders for the sum specified, and clause 10 will provide that 
 the company shall satisfy such lien. After registration the lien can be satisfied 
 hy the issue of debentures or otherwise. 
 
 9. The sd A.. B., and C. shall convey to the co the assets mentd in Conveyance. 
 the sd schedule hto, subject to the liabilities affecting the same respively, 
 
 but free from all claims by him, and in the meantime shall hold the 
 same assets in trust for the co. 
 
 10. The CO shall undertake, pay, observe, satisfy, perform, and fulfil Obligations 
 
 A A
 
 354 
 
 PRIVATE COMPANIES. 
 
 Form 280. all the liabilities of the sd A., B., and C. in relation to the sd business, 
 imposed on and shall indemnify the sd A., B., and C. and their respive heirs, exs, 
 company. ^^^g^ estates, and effects from and against all actions, proceedings, 
 
 damages, claims, and demands in respect thereof. 
 
 Sometimes this clause is less general, e.g., " all such of the liabilities of the 
 said A., B., and C, in relation to the said business as are specified in the book 
 marked A referred to in the schediile hereto and shall, &c." 
 
 From what 11. The sd business shall be deemed to have been carried on as from 
 
 time agreement ^.j^g gjgj. ^ of December, 1883, on the co's behalf, and accordingly the 
 to nave eflect. -^ ' ' " "^ 
 
 sd A., B., and C. shall be allowed all paymts made and expenses 
 
 incurred, and shall account for all moneys and other benefits received 
 
 by them respively in relation to such lousiness as from that day. 
 
 This, of course, is a matter of arrangement. 
 
 Numbering 
 shares and 
 register. 
 
 Limitation of 
 liability. 
 
 12. Each share in the capital shall be distinguished by its appropriate 
 number, and the co shall cause to be kept in one or more books a 
 register of its members, and there shall be entered therein the parlars 
 mentioned in section 25 of the Companies Act, 18G2. 
 
 13 & 14. [See Clauses 8 and 10 of Form 117.] 
 
 15. As between the members for the time being of the co, no 
 member shall be liable to pay calls or to contribute to an extent exceed- 
 ing the amount for the time being unpaid, or not credited as pd up on 
 the shares held by him. 
 
 This limit of liability is, of course, valid as between the members, but until 
 the company registers as a limited company it remains inoperative as against 
 outsiders. Greenwood's case, 3 D. G. M. & G. 459. 
 
 Shareholders, 10. The couduct of the co's business is to be exclusively vested in the 
 no power to directors, as hereinafter provided, and accordingly no member of the co 
 as such shall have any power to use the name of the co, or make any con- 
 tract, or otherwise act on the co's behalf. 
 
 It is not uncommon to insert a clause as above. And although in the case 
 of an ordinary partnership such astipulation is inoperative as regards outsiders, 
 without notice a different rule prevails in the case of a joint stock company. 
 Thus in Burnes v. Pennell,2 H. L. Cas. 497, Lord Campbell, L. C, said that "No 
 one will contend that a joint stock company would be liable on a bill of exchange 
 drawn, accepted, or indorsed by any one shareholder. Why ? Because it is 
 known that the power of carrying on the business of the company and of draw- 
 ing, accepting, and indorsing bills of exchange is vested excliisively in the 
 directors. This shows that, although a joint stock company is a partnership, 
 it is a partnership of a different descrij^tion, and attended with different inci- 
 dents and liabilities from a jiartnership constituted between a few individuals 
 who carry on business jointly with equal powers and without transferable 
 shares. All who have dealings Avith a joint stock company know that the 
 authority to manage the business is conferred upon the directors, and that a 
 shareholder as such has no power to contract for the company. For this i^uv- 
 pose it is wholly immaterial whether the comijany is incorporated or unincor- 
 porated." And in Hallett v. Doiudall, 21 L. J. N. S. Q. B. and 18 Q. B. 2, Piatt, 
 B., said, " There is every difference between a joint stock company and an ordi-
 
 FORMS. 
 
 35; 
 
 nary partnership. It has been decided over and over again that when there are Form 280. 
 
 directors the common law power of one partner to bind the other ceases ; " and — 
 
 Anderson, B., said, " Notice that there are directors is notice to a party that he 
 is not dealing with an ordinary partnership." 
 
 So in Greenwood's case, 3 D. M. G. & G. 477, Lord Cranworth, L. C, said that 
 companies " certainly differed in this, that whereas, according to the ordinary 
 laws of i^artnership, any one partner acting within the scope of the partnership 
 might bind all the other partners, it was not so with a joint stock company." 
 
 TliG transfer of a share made before the registration of the co shall, as Effect of 
 nearly as may be, have the same effect and consequences as between the ^''^nsfer before 
 transferor and the transferee and co respively as a transfer of shares 
 made after the registration of the co. 
 
 This provision is probably implied by reason of the shares being made 
 transferable. Cape's case, 2 De G. M. & G. 562 ; Mayheiv's case, 5 De Gr. M. & Gr. 
 837; Baird's case, 5 Ch. 735. 
 
 Every person who after the date hereof, and before the registration of Execution of 
 
 the CO, becomes the registered holder of any shares in the capital shall as ^i"*^^^^'^ p^ 
 
 . ^ association. 
 
 from the time his name is entered in the register of members be con- 
 sidered a member of the co in respect of such shares, and be bound l)y 
 the articles of association accordingly, and (if not at the time of such 
 entry already a member) shall within one month afterwards at the request 
 of the CO execute the articles of association or a deed of covenant to abide 
 by the regulations of the co as regards every such share. And if any 
 person shall fail to comply with such request all his rights in regard to 
 the CO shall be suspended so long as he remains in default. 
 
 This clause is iisually inserted. 
 
 Other Provisiox^^. 
 
 The rest of the deed will be based on Form 117 with modifications suital)le to 
 a private company, e.g., introduce any of the Forms 258 et seq. Power to 
 issue share warrants should be omitted. Power to convert shares into stock 
 is very commonly omitted. And where the power is taken it may be well to 
 commence the clause with the words "After the registration of the company," 
 although the better opinion is that an unincorporated company may have a 
 common stock. Lindley, 192. Any reference to the common seal should be 
 omitted or qualified, e.g., in clause 11, omit the words "issued luider the seal 
 of the company," and add at end of clause the words .- " And after the 
 registration of the comiiany shall be under the seal," and in clause 115, if inserted, 
 say " After the registration of the company the common seal, &c." The two 
 following clauses are usually inserted : 
 
 Any notice or other documt required to he served upon the co may be Notice to 
 served by leaving the same or sending it in a prepaid letter addressed to ^°°'i^''^"y- 
 the CO at the office. And any notice requiring authentication by the co 
 may be in writing, signed by any director, secretary, or otlier authorised 
 officer of the co. 
 
 The CO may at any time before its registration be dissolved by special Dissolution, 
 resolution, and where such a resolution is passed the affairs of the co 
 
 A A 2
 
 356 
 
 PEIVATE COMPANIES. 
 
 Division in 
 specie. 
 
 Alteration of 
 regulations. 
 
 Form 280. sliall be wound np by the directors or otherwise as by the special resohi- 
 tion directed. 
 
 If the CO shall be wound up the liqs, whether voluntary or official, or 
 other persons having the conduct of the winding up, [&c., Form 117, 
 Clause 153]. 
 
 The CO may from time to time and at aiiy time by special resolution 
 alter all or any of the regulations of the co for the time being [v/so except 
 Clauses hereof], and make new regulations, to the exclusion of or 
 
 in addition to all or any of the regulations for the time being of the co, 
 and the regulations so made and for the time being in force shall be 
 deemed to be regulations of the co of the same validity as if they had 
 been originally contd in these presents, and shall be subject in like manner 
 to be altered or modified by any subsequent special resolution. 
 The deed will conclude. 
 
 In "\titness whereof the parties to these presents have hereunto set 
 their hands and seals [omit the ii'orih " tlir day and //mr," r{r.]. 
 
 The Schedule above referred to. 
 
 The goodwill of the sd business heretofore carried on Ijy the sd 
 A., B., and C. at the and elsewhere. 
 
 All and singular the freehold and leasehold liereds, trade marks, 
 licences, copyright, plant, machinery, stock-in-trade, furniture, implemts, 
 utensils, bills, notes, books of account, and fire insurance policies, tO' 
 which the sd A., B., and C. are entled in connection with the sd business. 
 All del)ts owing to the sd A., B., and C. in connection with the sd 
 business, and the full benefit of all securities for the same. 
 
 The full benefit of all contracts and engagemts in connection with the 
 sd business. 
 
 All other ppty whatsoever and wheresoever to which the sd A., B., 
 and C. are entled in connection with the sd business. 
 
 The above mentd assets are now parly specified in the statemt 
 thereof, which has been entered in a book marked "A," and for the 
 ppose of identification su])scribed by th« parties hto of the first and 
 second pts respively. 
 
 Signed, sealed, and delivered by A. 
 
 the said A., B., C, and D. in the B. 
 
 presence of C. 
 
 D. 
 
 Signature of 
 attesting witness. 
 
 Signature, &c., of parties 
 hereto of the tliirrl part. 
 
 Seals. 
 
 Number of shares taken 
 by eacl). 
 
 
 
 
 (
 
 FOEMS. 357 
 
 Where it is desired to register a company constituted by deed as above the Foritl 280. 
 number of the members must if necessary be increased to seven ; the ^jrincipal 
 shareholder or shareholders can effect this by transferring a share apiece to a 
 few friends. Then let a general meeting be duly convened " for the pui-pose of 
 considering, and if thought fit passing a resolution to register the company as 
 a company limited by shares," and let a resolution be passed as in Form 173. A 
 proper form of application must then be made, see Form 174, supra, and in due 
 course the registrar will issue his certificate, supra. Form 207. As to the effect 
 thereof, see sections 192— 19G of the Act of 1862. 
 
 Note as to the Application of s. 25 of the Act of 18G7. 
 
 When a conversion in accordance with the new plan (supra, p. 335) is con- 
 templated, the question is sometimes raised whether after the company has 
 been registered under Part VII. of the Act of 1862, s. 25 of the Act of 1867 
 (supra, p. 10) will apjDly so as to impose any liability on the holders of shares, 
 which by the deed of settlement are to be deemed fully or i^artly paid up 
 by means of land or other assets brought into the joint stock. It seems clear 
 that section 25 will not apply to such shares, and accordingly the question 
 must be answered in the negative. 
 
 The following are the grounds for this conclusion : — 
 
 It is clear that apart from these Acts the contract contained in the deed of 
 settlement, that in consideration of certain assets brought into the joint stock 
 by some person, his shares shall be deemed to be fiilly or partly paid wp, is 
 perfectly valid. It is an every-day partnership arrangement. 
 
 It is also clear that so long as the company constituted by the deed of set- 
 tlement remains unregistered, s. 25 does not affect or invalidate this contract, 
 for that section no more applies to a company so constituted than it does to a 
 railway company. Indeed, s. 201 of the Act of 1862 expressly declares that 
 an unregistered company shall not except as therein mentioned be deemed to 
 be a company under this Act. And by the Act of 1867, it is pi-ovided that in 
 the Act of 1862 the expression " this Act " is to mean the Act of 1862, as 
 amended by the Act 1867. 
 
 The question remains whether, when the company x*egisters under Part VII. • 
 the Act invalidates this contract, which in its inception was perfectly valid ? 
 Now it is a well-settled rule that all statutes are to be construed to operate 
 prospectively, unless from the language a retrospective effect is clearly intended. 
 Novo, const Hutio futuris formani imponere debet nori prceteritis. And " it is where 
 the enactment would prejudicially affect vested rights, or the legal cha- 
 racter of past acts, that the presumption against a retrospective operation is 
 strongest." (Maxw^ell, p. 192.) As was laid do\^Ti by Erie, C.J., in The Midland 
 Railway Co. v. Pye, 10 C. B. N. S. 191, an act is not to be given a retrospective 
 operation, "iinless the intention of the Legislature that it should be so con- 
 strued is expressed in clear, plain, and unambiguous language, because it mani- 
 festly shocks one's sense of justice that an act legal at the time ©f doing it 
 should be made unlawful by some new enactment." The rule was refei-red to 
 by Bai'on Parke, in Moon v. Burden, 2 Ex. 22, as ''one of such obvious con- 
 venience and justice, that it must always be adhered to in the construction of 
 statutes, unless in cases where there is something on the face of the enactment, 
 putting it beyond doubt that the Legislature meant it to oi)ei"ate retrospec- 
 tively." So also in Hiclcson v. Barlow, 23 C. Div. 693, Fry, J., said, "Now it is 
 a well-known principle of law on the construction of Acts of Parliament, and 
 especially where the rights and liabilities of persons are altered thereby, that 
 they are not to have a retrospective operation unless it is expressly so stated." 
 And as appears from the case of The Midland Railway Co. v. Pye, ubi su,pra, 
 and the case last mentioned, the rule is applied not merely in favour of things 
 done before the passing of an Act, but also in favour of things done after the
 
 358' PRIVATE COMPANIES. 
 
 Form 280. passing, but before the application of the Act, where the provisions of an Act 
 
 are only to have effect on a particular subject matter in certain events. 
 
 Applying the rule to the construction of the Acts of 1862 and 1867, in refer- 
 ence to a company registering under Part VII., there is certainly no clear 
 expression of an intention that s. 25 of the Act of 1807 shall operate retrospec- 
 tively. 
 
 The following must be the argument in favour of a retrospective con- 
 struction : — 
 
 " The Act of 1862 provides (s. 196), that when a company is i-egistered under 
 Part VII., all the provisions of ' this Act ' shall apply to such a comj^any, 
 and the members, and contributors, and creditors thereof in the same manner 
 in all respects as if it had been formed under this Act. By virtue of the Act 
 of 1807, 'this Act,' in s. 196, includes the Act of 1867 ; therefore s. 196 makes 
 s. 25 of the Act of 1867 applicable to a company registering under Part VII. 
 not only as regards shai-es issued after, but as regards shares issued before the 
 registration." 
 
 But such a conclusion is not warranted by the jjremises ; for though s. 25 
 is to apply after registration, there is no clear and unambiguous declaration 
 that it is to apply to shares issued before registration ; and in the absence of 
 stich a declaration the well-settled rule above referred to, excludes a retro- 
 spective construction. 
 
 Moreover, to apply such a construction would involve the injustice and 
 absurdity that the parties were to lose the benefit of a contract, valid in its 
 inception, becaiise they did not before the issue of their shares do that which 
 the law did not then permit, viz., file the contract with the Eegistrar of Joint 
 Stock Companies. 
 
 Lastly, such a construction is inadmissible, because s. 194 of the Act of 1862 
 expressly provides that the registration " shall not affect or jirejudice the 
 liability of such company to have enforced against it ... . any contract 
 entered into, by, or with, or on behalf of such company previously to the 
 registration." This section would seem clearly to include a contract as to 
 paid-up shares contained in a company's deed of settlement ; for the members 
 of the company constitute the company; and they have all covenanted that 
 the shares shall be deemed paid up, i. e., a contract has been made hy or on 
 behalf of the company to that effect. 
 
 Form 281. I authorise my trustees or trustee at any time within [twelve calendar 
 
 Power for moiiths] after my death, to conyert my business into a co, limtd by 
 trustees of will shares upon such terms and in such manner as my trustees or trustee in 
 testator's their or his uncontrolled discretion shall think fit, and without limiting^ 
 
 business into 's,ViQ\\ general authority, I cxjjressly declare that my trustees or trustee 
 («) may accept fully or partially pd up shares or debentures, or any 
 other interests in or securities of any such co as the conson or pt of 
 the conson for the transfer of the sd business ; (t*) may effect the con- 
 version by the formation of a co limtd by shares and a sale to such co 
 of the business, or by the formation of an unregistered co, into the joint 
 stock whereof my trustees or trustee may bring the sd business or any pt 
 tliereof, and the subsequent registration of such co under Sect. 7 of tlie 
 Companies Act of 18(!2 as a co limtd by shares ; {c) may settle the terms 
 of any memorandum and articles of association, deed of settlemt, or otlier 
 documts for use in relation to such conversion, and may sign or execaite 
 the same ; {(I) may act as directors or director of such co, and either alone 
 or in conjunction witli otliers without being accountable for any
 
 FOEMS. 359 
 
 remuneration payable to them as such ; (o) may procure the appointmt Form 281. 
 
 of any other persons to he directors, either alone or otherwise ; (/) for ' 
 
 the ppose of forming or preserving the limtd liability of the members 
 
 after registrati(m, my trustees or trustee may vest any of the shares in 
 
 the sd CO constituting pt of my estate in such persons and upon such 
 
 trusts as they or he think fit ; (//) may lend money forming pt of my 
 
 residuary estate to any such co upon such terms as they or he may think 
 
 lit, and may concur in winding up, reconstructing and amalgamating 
 
 any such co, or in the modification of any of the<'fegulations thereof, and 
 
 may exercise any powers which by the regulations of such co shall be 
 
 vested in my trustees as members or directors thereof or otherwise, and 
 
 generally may act in relation to any such co in such manner as they 
 
 think best calculated to benefit my estate : And I declare that all shares 
 
 debentures, or other interests in or securities of any such co acquired 
 
 by my trustees or trustee shall be deemed to be authorised as investmts 
 
 by clause hereof, and to have been pchased by my trustees out of 
 
 monies arising from a sale under clause hereof: And I declare that 
 
 for the pjjose of this clause the expression, my business, shall be 
 
 deemed to include the goodwill of the business of a , carried on by 
 
 me at , and the ■whole of my ppty and rights in connection with 
 
 such business. 
 
 It is becoming very connuon now for a testator who is possessed of a business 
 which he desires to have carried on after his death, or a share in a business, to 
 make provision for the conversion of the concern into a private company. 
 Sometimes persons who are solicited to act as trustees of an intended will or 
 settlement urge the insertion of such a iirovision in the will or settlement. In 
 other cases the testator or settlor is advised to convert his business into a 
 private company before his death. 
 
 Prima facie, trustees or executors have no power to convert, or concur in con- 
 verting, a concern into a company. But sometimes a conversion may be 
 supported as a compromise under s. 37 of the Conv. Act, 1S81. See West of Eng- 
 land Bank v. March, 23 C. D. 13S, whei'e a sale of a testator's share in a busi- 
 ness, in consideration of cash, and of shares and debentures in a company, was 
 held valid on the groimd that the vendor, who was the executrix, was enabled 
 thereby to make an ai-rangement with the testator's creditors, and, accordingly, 
 that the transaction amovinted to a compromise within the meaning of s. 30 of 
 23 & 24. Vict. c. 145. 
 
 In Land v. Land, 4-3 L. J. N. S. Ch. 311, Jessel, M.E., hold that the Court 
 had no jvirisdiction in the case of an intestacy, there being infants, to authorise 
 the administrator to carry on the intestate's business ; and it would seem 
 that there is no jurisdiction in such case to authorise a conversion of the 
 business into a company. But where an estate is insolvent it can be ad- 
 ministered in bankrviptcy under s. 125 of the Bankruptcy Act, 1883, and a 
 scheme effected under s. 23 of that Act. See sujpra, p. 50.
 
 WRITS OF SUMMONS. 
 
 Form 282. 
 
 Common form 
 writ. 
 
 In the High Court of Justice. 
 
 Chanceiy Division. 
 Mr. Justice 
 
 [The — 
 
 Victoria, by the grace of God, &c. 
 To [The Co, Limtd, of — 
 
 Bet^Yeen [A.], 
 
 and 
 Co, Limtd, B., C, & D.], 
 
 B., of 
 
 C, of 
 
 Pit., 
 
 Deft. 
 
 and 
 
 D.,of ]. 
 
 We command you that within eight days after the service of this writ 
 on you inclusive of the day of such service you do cause au appearance 
 to he entered for you in an action at the suit of A., and take notice that 
 in default of your so doing the pit may proceed therein and j udgmt may 
 be given in your absence. 
 
 Witness, Roundell, Earl of Selborne, Lord High Chancellor of Great 
 
 Britain, the day of in the year of our Lord one thousand 
 
 eight huntked and 
 
 N.B. — This writ is to be served within twelve calendar months from 
 the date thereof, or if renew^ed within six calendar montlis from the date 
 of the last renewal including the day of such date and not afterwards. 
 
 The deft [or defts] may appear hereto by entering an appearance [or 
 appearances] either personally or l^y solicitor at the Central Cffice, Koyal 
 Courts of Justice, London. 
 
 Indorsemts to be made on the writ before issue thereof. 
 
 The pit's claim is for, &c, 
 
 [See Forms 283, ci seq., infra.'] 
 
 This w^'it Avas issued by the sd pit w'ho resides at , or this was 
 
 issued by E. F., of , wiiose address for service is , solicitor for the 
 
 sd pit, who resides at ; or this writ was issued by C, H., of , 
 
 whose address for service is , agent for of , solicitor for the 
 
 sd pit, who resides at [mention the city, town, or parish, and also 
 
 the name of the street and number of the house of the pit's residence, if 
 any].
 
 FORMS. 301 
 
 Indorseint to be made on the writ after service thereof : Form 282. 
 
 This writ was served by me at on the deft on the day 
 
 of , 18—. 
 
 Indorsed the day uf , 18 — . 
 
 (Signed) 
 
 (Address) 
 
 See Eules of Sup. Ct. of 1883, Appendix A. Eule 228 provides that — 
 
 " Whenevei- a statement of claim is delivered the plaintiff may therein alter, 
 
 modify or extend his claim without any amendment of the indorsement of the 
 
 ■vvTit." The following are some of the indorsements commonly used : 
 
 Indorsements. 
 
 [Pit, A. ; deft, Tlie Co, Limtd.] 
 
 The pit claims . 
 
 1. A declou that he was induced to take 100 shares in the deft co by Form 283. 
 misrepresentation and non-disclosure of material facts. iiescission of 
 
 2. Rescission of the contract to take such shares and rectification of contract to 
 the register of members of the deft CO by removing hi?: name. 
 
 3. liepaymt of the amounts pd by him on the sd shares with interest. 
 
 4. An injunction to restrain the deft co from making or attem})ting 
 to enforce by action or otherwise any call in respect of the sd shares. 
 
 The above Form can be used where there is no case of fraudulent misrepre- 
 sentation, and the plaintiif claims relief merely on the ground of non-dis- 
 closui-e or innocent misrepresentation. See supra, p. 230. 
 
 Sometimes in such circumstances there may be a case against the directors 
 under s. 38 of the Companies Act, 1867. See supra, p. 242, and, if so, the 
 directors can be made defendants along with the company, and the following- 
 claim can be added : — 
 
 b. Or in the alternative as against the defts, , , and , 
 
 for a declon that the prospectus of the deft co upon the faitli of which 
 the pit took such shares was fraudulent on the pt of the sd defts within 
 the meaning of Sect. 88 of the Companies Act, 18(i7, and for damages 
 for the loss occasioned to the pit Ijy the fraud of the defts in publishing 
 and issuing such prospectus, and for indemnity against all lialjility in 
 respect of such shares. 
 
 The following is another form sometimes used instead of Clauses 1 and 2 Form 283a. 
 above : — 
 
 1. To have the contract, by virtue of which he becomes entled to 
 
 shares in the capital of the deft co, set aside on the ground that he was 
 induced to enter into that contract by misrepresentation and non-disclosure 
 of material facts, and to have the register of members of the co rectified by 
 .striking out his name as the holder of such shares. 
 
 [Pit, A. ; defts, the co, and A., B., and C, directors.] 
 
 The pit claims . ^^^^^ ^^^ 
 
 1. A declon that he was induced to take 200 shares in the deft co !_ 
 
 Rescission and 
 damages : 
 fi-aud. 
 
 by the fraudulent misrepresentations of the defts.
 
 362 WEITS OF SUMMONS. 
 
 Form 284. i>. Rescission as in Form 283 (2). 
 
 o. Damages for the loss occasioned to him l\v such fi-audulent 
 misrepresentations. 
 
 4. An injnnction, Form 283 (4). 
 
 5. Or in the alternative as against the defts, , , and , 
 
 damages for the loss occasioned to the pit hy such fraudulent misrepre- 
 sentations, and indemnity against all liability in respect of such shares. 
 
 The above Form can be used where the plaintiff sues the company and the 
 directors for rescission and damages. It miist be borne in mind that a director 
 cannot be made liable in such an action unless it can be proved that he made 
 the misrepresentations, knowing them to be false, or i-ecklessly. See suijra, 
 p. 234. And that one director cannot, in general, be made responsible for the 
 fraud of another. Car gill v. Bower, 10 C. D. 502. If the plaintiff" has lost his 
 right to rescind the contract (e.g., by winding up, acquiescence or otherwise, 
 supra, p. 232), he cannot sue the company for damages (supra, p. 233), and 
 Form 285 should be adopted. The alternative claim is added so as to provide 
 for the failure'or abandonment of the claim for rescission. Indemnity is only 
 required where the contract is not to be rescinded. Cargill v. Bower, ubi supra. 
 
 Some persons, instead of claiming damages (3), claim "To have judgment 
 against the defendants jointly and severally for the repayment of the amounts 
 paid by the plaintiff upon the said shares, with interest ; " but of course this 
 may not cover the damages sustained. See Mathias v. Getts, 46 L. T. 497, where 
 a contract was rescinded, and damages awarded. In Redgrave v. Hurd, 20 C. 
 Div. l,a contract was rescinded, but the claim for damages failed because there 
 was no allegation that the defendant made the misrejiresentations complained 
 of, knowing them to be false. 
 
 Form 285. 
 
 [Pit, A. ; clefts, A., B., and C] 
 
 The pit's claim is for damages for loss occasioned to him by the fraud 
 
 Damages for of the defts, whereby the pit was induced to take 100 shares in the 
 
 Co, Limtd, and for indemnity against all liability in resjiect of the sd 
 shares. 
 
 This Form is for use where the plaintiff sues only the directors, or other jjer- 
 sons who, by issuing a fraudulent prospectus, induced him to take shares, and 
 does not seek rescission either because he has lost the right, or prefers to keep 
 the shares, sujira, p. 235. The form is available both in the case of common 
 law fraud, and also fraiid under s. 38 of the Act of 1867, and, if necessary, the 
 statement of claim can allege an alternative case. See supra, p. 236. 
 
 [Pit, the CO ; defts. A., B., C, D., and E.] 
 Form 286. 1. A declon that an agreemt, dated, &c., and made between the deft. 
 
 Rescission of -^•' "^ ^^^ ^^^^ P*"' ^^^^ ^^^^ V^^ ^"' *^*^ ^^^^ other pt, and an indi-e of 
 contract for assignmt, dated, &c., made between the sd deft of the one pt, and the 
 to coinpany. P^*^ ^^ ^'^ ^^^^ other pt, are res})ively fraudulent and are voidable at the 
 option of the pit co. 
 
 2. A declon that the defts are jointly and severally liable to make 
 good to the Jilt CO all profits derived by the defts or any of them in 
 respect of the sale the subject to the sd agreemt and indre. 
 
 3. In case the pit co shall elect to avoid the sd agreemt and 
 assignmt, judgmt that the sd agreemt and assignmt be respively set 
 aside and delivered up to l)e cancelled, the pit co offering to account for
 
 FORMS. 3G3 
 
 all (if any) the profits derived by the pit co in working the mines, the Form 286. 
 subject of the sd sale. And in any ease — 
 
 4. Judgmt against the defts jointly and severally for the surrender to 
 the pit CO of so many of the .50,000 fully pd up shares of 1/. each in the 
 pit CO, issued as the consideration for the sd sale as are still held ])y the 
 defts, or any of them, or in lieu of such surrender and at the option of 
 the pit C(), judgmt for paymt of the maximum value of any of the sd 
 shares since the date of the incorporation of the pit co, with interest. 
 
 r>. .Judgmt against the defts jointly and severally for the amount of 
 all money and other profits received or derived by the defts or any of them 
 in respect of such of thesd ."iOjOOo shares as have been sold or disposed 
 of or otherwise received in respect of the sd sale with interest, l)ut in 
 case the pit co shall elect to retain the ppty sold giving credit to the 
 defts for ;-3,r)00/., the amount pd by them, with interest at 4 p. c. from 
 January, 1880. 
 
 <;. 10,000/. damages for the loss occasioned to the pit co by the fraud 
 and collusion of defts. 
 
 The above is an example of the indorseiuent iised in a case somewhat resem- 
 bling Neiv Sombrero Co. v. Erlanger, o C. Div. Ill; .3 Ap. Cas. 1218. The defen- 
 dants having purchased a property for :i,oOOl., promoted the plaintiff company, 
 and sold the property to it for oO.OOOL, without disclosing their jirofit or posi- 
 tion, and made misrepresentations. 
 
 [Pit, the CO. Defts, A., B., and C] 
 
 1. A declon that the defts are jointly and severally liable to pay to Form 287. 
 the pit CO the maxinuim value with interest of 700 shares in the capital ^^.-^^^^ ^^ 
 
 of the pit CO, which shares were issued to B. as pt of the conson for ppty directors. 
 sold l)y him to the pit co and were by him gratuitously transferred to 
 the defts, who were directors of the pit co. 
 
 2. Judgmt against the sd defts jointly and severally for the paymt 
 of such maximum value with interest. 
 
 There have been a good many cases in which directors have been held liable 
 for paid-up shares privately given them by the vendor or promoters. See 
 supra, p. 237. And it has been held that in such case they are liable for the 
 maximum value. Nant-y-Glo Co. v. Grove, 12 C. D. 738 ; and see infra, Form 
 322. See also Carling's case, 1 C. Div. 115 ; McKay's case, 2 C. Div. 1 ; De 
 Ruvigne's case, 5 C. Div. .300; Pearson's case, 4 C. Div. 222; 5 C. Div. 330; 
 Weston's case, 10 C. Div. 579 ; Mitcalfe's case, 13 C. Div. 169. 
 
 [Pit, the CO. Deft, A.] 
 
 1. A declon that the deft is liable to pay to the pit co the sum of Form 288. 
 10,00<t?., being the difference between the amount pd by him for the Promoter's 
 __ — Colliery and the amount pd him by the pit co for such colliery, secret profit. 
 and all other profits, if any, made by the deft when promoter or director 
 
 of the pit CO, without its knowledge and consent, with mterest ; and 
 
 2. Judgmt against the deft for paymt accordingly. 
 
 See supra, p. 239.
 
 804 WRITS OF SUMMONS. 
 
 Form 289. [Plfc, A. (on behalf of himself and all other holders of mtge de- 
 Debenture beutures in the deft co"). Deft, the co.] 
 foreclosure. The pit claims as a debenture-holder of the deft co— 
 
 1. A declon that the mtge debentures issued by the deft co, and 
 now outstanding, constitute a first charge upon all the ppty of the co. 
 
 2. To have an account taken of what is due and owing to the pit and 
 to the other holders of the sd debentures for principal interest and costs. 
 
 3. To have the sd debentures enforced by foreclosure or sale. 
 
 4. To have a receiver and manager of the go's ppty appointed. 
 
 The above is for use in a simple case. In actions by one on behalf care should 
 lie taken that the plaintiff has personally a good cause of action, otherwise the 
 action may fail, e.g., where the company has a set-off. Burt v. British Nation 
 Life Association, 4De G. & J. 158, 17-1 ; Huggons v. Tweed, 10 C. Div. 359. And 
 it should be seen that the plaintiff" is a jDroper representative. Daniel Pr. 231 ; 
 Wilson V. Church, 9 C. D. 552. Where there are inconsistent interests or sub- 
 sequent incumbrances the necessary defendants should be added, and if neces- 
 sary a representation order should be obtained. Fraser v. Cooper, Hall 4' Co., 
 21 C. D. 718. See infra. Form 351. As to a^jpeal by one of a class represented 
 by the plaintiff, see Watson v. Cave, 17 C. D. 19. 
 
 In an action by one on behalf the plaintiff is dominus litis, and before judg- 
 ment can compromise or abandon the action as he thinks fit. And the company 
 before judgment may pay the plaintiff and get rid of the action. Pemberton v. 
 Topham, 1 Beav. 312 ; Huggins v. Tweed, 10 C. Div. 359. 
 
 [Pit, A. (on behalf of himself and all other tlie holders of debentures 
 
 entled to the benefit of the indre mentioned in the indorsemt on the 
 
 writ in this action). Deft, the co.] 
 
 Form 290. '^^^^" plt claims as a debenture-holder of the dft co — 
 
 T. ,". 1. To have an account taken of what is due from the deft co to the 
 
 Delienture 
 
 trust deed. pit and the other holders of debentures entled to the benefit of an indre 
 dated, etc., and made, &c. 
 
 '2. To have the trusts of the sd indre carried into execution under 
 tlie order of the Ct. 
 
 3. To have a receiver and manager of the ppty comprised in the sd 
 indre appointed. 
 
 'J'he defts and are sued as trustees of the sd indre. 
 
 As to actions on behalf, see note to Form 289. 
 
 Form 291. [I^lt, A. (on behalf of himself and all other shareholders in the deft 
 IJlti-iTvires "^^N ^'-"^ccpt thosc who are defts). ])efts, the co and the directors.] 
 .'igreement. The pit's claim is for a declon that an agreemt dated, &c., and made, 
 
 &c., is idtra vires the deft co and for an injunction to restrain the defts 
 
 from carrying the sd agreemt into effect. 
 
 See Russell v. Wakefield Waterworks, 20 Erj. ■t71, as to parties in such actions. 
 
 Form 292. [Pit, A. (on behalf of himself and all other holders of B. Shares in 
 Uitr-^ vires ' *^^^^ ^^^^ <^o, cxccpt those wlio are defts). Defts, the co and the 
 
 resolution. dii'cctors.]
 
 FORMS. ;305 
 
 1. A declon that the special resohition of the co, passed at the Form 292. 
 general meetinii' held on the day of is ultra vires and illegal. 
 
 2. An injunction to restrain the defts from acting on the sd resolu- 
 tion or applying the profits of the co otherwise than in accordance with 
 the special resolutidii of the co passed the dny of- . 
 
 This form was adopted when a resolution was i)assed purporting to alter the 
 rights of different classes of shareholders as defined by a former special resolution. 
 
 [Pit and defts as in Form 21)2.] 
 
 The pit claims as a shareholder in the deft co — 
 
 1. A decl(jn that the resolution passed at the ordinary general Form 293. 
 
 meeting of the co on the day of , declaring a dividend on the Dividend in 
 
 ordinary shares is ultra rircs and illegal as against the holders of pre- prejudice of 
 
 prcfcrGiiCG 
 
 ference shares in the deft c<t. sbaras. 
 
 2. An injunction to restrain the paymt of the dividend so declared, 
 and to restrain the declon or paymt of any other dividends on the ordinary 
 shares in prejudice of tlie rights of the holders of preference shares in 
 the deft co. 
 
 [Pit, A. (on hehalf), and defts, the co and the directors.] 
 
 1. A declon that the resolution declaringj a' dividend, passed at the Form 294. 
 ordinary meeting of the deft co held on, &c., is tdtra vires and illegal. Dividend out 
 
 2. An injunction to restrain the defts from acting or further acting of capital. 
 on the sd resolution, and from paying such dividend or any dividend out 
 
 of the capital of the deft co. 
 
 3. A declon that the defts other than the deft co are jointly and 
 severally liable to make good to the deft co all monies (if any) pd l)y 
 them out of the deft co's assets on account or in respect of the dividend 
 so sanctioned and judgmt against them j<jintly and severally foi" 
 repaymt of such monies accordingly. 
 
 As a general rule the company ought to sue for the recovery of any assets 
 misapplied. Gray v. Leicis, 8 Ch. 1036. But in a case as above the Coui-t 
 would have jtu-isdiction. Russell v. Wakefield Watencorks, 20 Eq. 481. 
 
 [Pit, the CO. Defts, the directors.] 
 
 1. A declon that the dividends pd to the shareholders in the pit co Form 295. 
 since its formation have all been pd out of the pit co's capital, and that Recovery of 
 the defts are jointly and severally liable to make good the amount of the dividends 
 dividends so pd with interest. mid!"^^^^ '^ 
 
 2. Judgmt against the defendants accordingly. 
 
 As regards misapplication of the monies of a company it must be borne in 
 mind that "the money of the company is a trust fund, because it is applicable 
 only to the special purposes of the company in the hands of the agent of the 
 company^ and it is in that sense a trust fund applicable by them to those special 
 purposes ; and a person taking it from them with notice that it is being ai)plied 
 to other purposes cannot in this Court say that he is not a constructive trustee." 
 Per Jesseb M. E., Russell v. Wakefield Waterworks Co., 20 Eq. 479. And in case
 
 3G6 
 
 WEITS OF SUMMONS. 
 
 Form 295. of fraud or breach of trust the parties are jointly and severally liable. See 
 • Forms 321;, 339, infra, and Wye Valley Baihvay Co. v. Hawes, 16 C. Div. ISQ. 
 
 [Pit, the CO and A., on behalf, &c. Defts, the directors.] 
 Form 296. An injunction to restrain the defts from acting- in contravention to a 
 resolution to the effect that, &c., passed at a general meeting of the co, 
 held on, &c. 
 
 To enforce 
 resolution of 
 company. 
 
 In the above case it is assumed that A., makes the company a co-plaintiff, in 
 order to escape the rule in Foss v. Harhottlc, infra, p. 367. See Pender v. Lush- 
 ington, G C. D. 70; Harben v. Phillips, 23 C. Div. 14. 
 
 Form 297. 
 
 Exclusion of 
 director. 
 
 Form 298. 
 
 To restrain dc 
 fiicf.o directors 
 from actin" 
 
 [A., pit. The CO., B., C, D., defts.] 
 The pit's claim is : — 
 
 1. An injunction to restrain the defts, other than the deft co, from 
 preventing or hindering in any way the pit from acting as a director of 
 the deft co, and from excluding the pit from meetings of the directors of 
 the deft co. 
 
 2. Damages in respect of the matters atsd. 
 
 See PulhrooJc v. Richmond Mining Co., 9 C. D. 610. 
 
 [Pits, the CO and A., B., and C. Defts, D., E., and F.] 
 The pits' claim is for an injunction to restrain the defts, D., E., 
 and F., from acting as directors of, or dealing with the funds of, or 
 using the seal of, or otherwise interfering in the managemt of the 
 pit CO, and to restrain the deft D. from acting as a director of, or dealing 
 with the funds of the co, or using the seal of, or otherwise interfering in 
 the managemt of the pit co, otherwise than as a member of the Board of 
 
 Directors of the pit co, elected on the , 1883 (which Board consists 
 
 of the pits A., B., and C, and the deft D.), and to restrain the defts 
 from representing that the four persons who first subscribed their names 
 to the memorandum of association of the pit co continued after May, 
 1883, or now continue or are directors of the pit co, or that either of the 
 defts E. and F. after tliat date continued or now continues or is a 
 director of the pit co, and from preventing or hindering the pits A. and 
 B. or either of them from acting as directors of, or taking pt in the 
 managemt of the pit co, or excluding them or either of them from the 
 Board meetings of the pit co. 
 
 2. Damages in respect of the matters afsd. 
 
 In this case the plaintiff, as in Pender v. Lushington, G C. D. 70, makes the 
 company a co-plaintiff, inasmuch as the company can alone complain of persons 
 not duly api^ointed acting as directors. Macdotigal v. Gardiner, 1 C. Div. 15 ; 
 Harben v. Phillips, 23 C. Div. 14. 
 
 See further cases in regard to directors not duly appointed. Imperial Hydro- 
 pathic Co., 23 C. Div. 1 ; Harben v. Phillips, Ibid. 41 ; Munster v. Cammell Co., 
 21 C. D. 183.
 
 FOEMS. 307 
 
 Form 298. 
 
 Rule in Foss v. Harbottle. 
 
 It may be convenient here to refer to the rule in Foss v. Harbottle, 2 Ha. 461, 
 and Mozley v. Alston, 1 Ph. 790, namely, that the company can alone sue in 
 respect of wrongs done to the company. 
 
 I think that it is of the utmost imjaortance to maintain the rule laid down in 
 Mozley v. Alston, and Foss v. Harbottle, to which, as I understand, the only ex- 
 ception is where the corporate body has got into the hands of the directors and 
 of the majority, which dii-ectors and majority are using their power for the 
 purpose of doing something fraudulent against the minority. Pe>' James, L. J., 
 Gray v. Lewis, 8 Ch. lO'.iG. 
 
 " I think it is of the utmost importance to all these companies that the rule 
 which is well known in this Court as the rule in Mozley v. Alston, . . . and Foss 
 V. Harbottle, should always be adhered to; that is to say, that nothing connected 
 with the internal disputes between the shareholders is to be made the subject of 
 a bill by some one shareholder on behalf of himself and others, unless there be 
 something illegal, oj^pressive, or fraudulent, unless there be something ultra 
 ■vires on the part of the comjjany, qua company, or on the part of the majority of 
 the company, so that they are not fit persons to determine it ; but that every 
 litigation must be in the name of the company, if the company really desire it." 
 Per James, L. J., Macdougall v. Gardiner, 1 C. Div. 13. 
 
 Accordingly the Court refused to interfere at the suit of a shareholder suing 
 on behalf of himself and others in Foss v. Harbottle, ubi supra. Suit to compel 
 directors to make good funds of company improperly expended. 
 
 Mozley v. Alston, ubi supra, and Hattersley v. Shelburne, 10 W. E. 881. Where 
 directors were acting who had not been duly appointed. Gray v. Lewis, ubi 
 supra. To recover property alleged to belong to the company. See also 
 Russell V. Wakefield Waterworks, 20 Eq. 474. 
 
 Macdougall v. Gardiner, 1 C. Div. 13, where it was alleged that chairman had 
 improperly refused to take a poll. 
 
 Diickett V. Gover, G C. D. 82. Action against company's solicitor and vendor 
 to set aside an agreement alleged to have been a fraud on the company, and to 
 recover money of the company. For further proceedings in this case, 25 W. E. 554. 
 
 The only exceptions to the rule are the following — 
 
 (a) Where the act complained of is ultra vires the company. Simpson v. 
 
 Westminster Palace Hotel Co., 8 H. L. Cas. 712. 
 
 (b) W^here the act complained of is a fraud on the minority. 
 
 (c) Where there is an absolute necessity to waive the rule in order that jus- 
 
 tice may be done. See observations of M. E. in Pender v. Lushington, 
 6 C. D. 70; Russell v. Wakefield Waterivorks, 20 Eq. 474; Harben v. 
 Phillips, 23 C. Div. 14. 
 
 Accordingly the Court has interfered at the suit of one or more suing as 
 aho've, in Clinch v. Fiyiancial Corporation, 5Eq. 450; 4 Ch. 117. Ultra vires 
 agreement. See Form 332, infra. Holmes v. Neivcastle Co., 1 C. D. 682. Ultra 
 vires return of capital. 
 
 Hope V. International Financial Society, 4 C. Div. 327. Ultra vires piu'chase 
 of shares. See Form 338, infra. 
 
 Macdougall Y.Jersey Hotel Co., 2 H. & M. 528. Payment of dividends out of 
 capital. See Forms 336 & 337, infra. 
 
 Menier v. Hooper's Telegraph Works, 9 Ch. 350. Majority proposing to benefit 
 themselves at the expense of the minority. 
 
 Mason v. Harris, 11 C. Div. 97. Action to set aside fraudulent sale to com- 
 pany, the vendor holding the majority of the shares. 
 
 Where a shareholder desires to complain of a wrong done to the company, 
 and the case does not fall within the above exceptions, and the directors decline 
 to proceed, the shareholder can sue in the company's name. But if it is shown 
 that the majority do not support the action, the company's name will be struck
 
 ;68 
 
 AVEITS OF SUMMONS. 
 
 Forin 298 °"^' ^^^ ^^ there is a dispute as to the views of the majority, the Court will 
 
 take means to ascertain them, e.g., by giving liberty to convene a meeting. 
 
 Exeter ^ Crediton Ry. Co. v. Buller, 5 Rail. Cas. 211 ; 11 Jur. 527 ; Pender v. 
 LusMngton,Q C. D. 70 ; Duckett v. Gover, ibid. 82 ; Harben v. Phillips, 23 C. Div. 14. 
 But the fact that the approval of the iiiajority has not been obtained before 
 the writ is issued, does not jjrevent the Coui't from giving interlocutory relief 
 by injunction or otherwise. Peiuler v. Lvshington, iibi siipra. See further, 
 Lindley, 89G ; Seton, 2G6 ; Buckley, 39G. 
 
 The rule above referred to does not prevent a member from suing in respect 
 of an individual wrong. Pender v. Lushington, ubi svjira, and see Forms 331, 
 et seq., infra. 
 
 \
 
 PETITIONS. 
 
 Reductiox of CaPITAIj. 
 
 In the High Court of Justice. Form 299. 
 
 Chancery Division, Petition to 
 
 Mr. Justice ,"°°*^7 '^'^'''': 
 
 tion or capital 
 
 In the matter of the Companies Act, 1867. under Act of 
 
 And in the matter of the Co. ^^^''• 
 
 Limtd and Reduced. 
 
 To Her Majesty's High Ct of Justice : 
 
 The humble peton of the Co, Limtd and Reduced : 
 
 Showeth as follows : 
 
 1. Your petr, the above-named co (hereinafter called the co), was in- 
 corporated in the year , under the Cos Acts, 1802 and 1867, as a 
 
 CO limtd by shares. 
 
 2. The registered office of the co is situated at . 
 
 3. The objects for which the co was established are [the working of coal 
 mines] and other objects set forth in the memorandum of association 
 thereof. 
 
 4. The capital of the co is 100,000/. divided into 5,000 shares of 20/. 
 each. 
 
 5. Shortly after the incorporation of the co it commenced and has 
 since carried on business. 
 
 6. The CO has issued 4,200 of its shares, and no more, and the smn 
 of 10/. per share has been pd up thereon. 
 
 7. By Clause 37 of the articles of association of the co it is pro^dded 
 that the co may fi"om time to time by special resolution reduce its 
 capital. 
 
 8. By a special resolution of the co duly passed and confirmed, in 
 accordance with Section 51 of the Cos Act, 1862, at extraordinary 
 
 general meetings of the co held respively on the day of and 
 
 day of , it was resolved as follows, namely : " That the capital 
 
 of the CO be reduced from 100,000/. divided into 5,000 shares of 20/. 
 each to 75,000/. divided into 5,000 shares of 15/. each by reducing the 
 liability ou each share to the extent of 5/." 
 
 9. The form of minute proposed to be registered is as follows : 
 
 " Minute approved by the Ct. The capital of the Co, Limtd, 
 
 is 75,000/. divided into 5,000 shares of 15/. each. At the time of the 
 registration of this minute the sum of 10/. has been and is to be deemed 
 pd up on each of the sd shares." 
 
 B B
 
 370 PETITIONS. 
 
 Form 299. it is convenient to state tlie proposed minute in tlie petition, especially where 
 
 ■ it is a long one. Counsel can thus, in indorsing his brief, refer to the minute in 
 
 the petition instead of setting it out, or referring to a separate document. 
 
 Your petr the co therefore humbly prays : 
 
 (1.) That the sd special resolutiou passed aud confiiTQed as afed may 
 
 be confirmed. 
 (2.) That to tliis end all inquiries aud directions necessary and proper 
 
 may be made and given, aud that a day may be fixed on aud 
 
 after which the co shall be at libty to discontinue the addition 
 
 to its name of the words " aud reduced." 
 (3.) Or that such other order may be made in the premes as to the 
 
 Ct shall seem meet. 
 And your petr will ever pray, &c. 
 Note. — It is not intended to serve this peton upon any person. 
 
 Form 300. In the High Ct of Justice. 
 Petition to Chancery Division. 
 
 confirm reduc- [_Name of JlldfJC.'] 
 
 under Acts of ^^ the matter of the Companies Acts, 1867 and 1877. 
 
 1867 and 1877. 
 
 [This is the proper title. Socie'te Franraise, L. T. 4107.] 
 
 And in the matter of the Co, Limtd. 
 
 To Her Majesty's High Ct of Justice : 
 
 The humble peton of the Co, Limtd, showeth as follows : 
 
 1 to 7 [as in Form 290]. 
 
 8. By special resolution, &c., it was resolved : 
 
 " That the capital of the co which now consists of 10,000/. divided 
 into 1,000 shares of 10/. each fully pd up be reduced to 5,000/. divided 
 into 1,000 shares of 5/. each, and that such reduction be effected by 
 cancelling pd up capital [which has been lost or is unrepresented by 
 available assets] to the extent of 5/. per share." 
 
 9. Previously to the passing of such special resolution, pd up capital 
 of the CO to the extent of .5,000/. and upwards had been lost. 
 
 10. The reduction of capital afsd does not involve either the diminu- 
 tion of any liability in respect of unpaid capital or the paymt to any 
 shareholder of any pd up capital. 
 
 11. The form of the minute proposed to be registered is as follows : 
 \_set it ouf]. 
 
 Your petr the co therefore humbly prays : 
 
 (1.) That the sd special resolutiou passed and confirmed as afsd may 
 
 be confirmed by the Ct. 
 (2.) That the addition of the words " and reduced " to the go's name 
 
 may be dispensed with altogether. 
 (3.) Or that [«.s in Form 299]. 
 And yom- petrs will ever pray, &c. 
 Note.— [Jls in Form 299].
 
 FORMS. 371 
 
 Reduction of Capital. Form. 300. 
 
 Except so far as the capital may be reduced by forfeiture or sun-ender of 
 shares (supra, pp. 121, 153), or by cancellation, under section 5 of the Act of 
 1877, of shares which " have not been taken or agreed to be taken," no i-educ- 
 tion of cajjital can be legally effected without a special resolution, confirmed by 
 the Coui-t in accordance with the Acts of 18G7 and 1877. 
 
 Thei-e are five kinds of reduction, commonly carried out in this way : 
 
 1. Reducing the liabilities of shareholders, as in the resolution in Form 299. 
 
 2. Paying off capital not wanted, e. g., where the shares are lOL fully paid, 
 reduce them to ol. and pay back ol. per share. See the Act of 1877. 
 
 3. Paying off capital upon the footing that it may be called up again. See 
 Form 1G2, Act of 1877. 
 
 4. Cancelling shares unissued or siuTendered. Shares which have not been 
 taken or agreed to be taken, can be cancelled by special resolution under section 
 5 of the Act of 1877, but the sanction of the Court is requisite to the cancellation 
 of surrendered shares. See I'orms 166, 166a. 
 
 5. Cancelling capital which has been lost or is unrepresented by available assets. 
 This is effected under the Act of 1877, and the object of such a reduction is 
 
 to enable the company to pay dividends, for where capital has been lost, no 
 dividend can be paid until the loss has been made good or cancelled. Supra,-p. 170. 
 
 For resolutions reducing capital see supra, p. 199 et seq. 
 
 Sometimes a scheme of reduction involves several of the above operations. 
 Where the articles of association of the company contain a power for the com- 
 jDany to reduce its capital, the first step with a view to reduction is to pass a 
 special resolution to reduce. But if the articles do not contain the necessary 
 power, a special resolution must first be passed altering them, by introducing 
 a clause that " the company may from time to time reduce its capital ; " and 
 subsequently a second special resolution will be passed to effect the reduction. 
 See section 9 of the Act of 1867 and West India Co., 9 Ch. 11 n. 
 
 The subsequent procedure differs according to the nature of the reduction : 
 
 1. S. 4 of the Act of 1877 provides "that where the reduction does not in- 
 volve either the diminution of any liability in respect of unpaid capital or the 
 payment to any shareholder of any paid up capital (e. g., where it merely pro- 
 vides for the cancellation of lost capital, or of surrendered shares), (i.) The 
 creditors of the company shall not, unless the Coru-t otherwise directs, be 
 entitled to object, or required to consent to the reduction ; and (ii.) It shall 
 not be necessary before the presentation of the petition to add, and the Court 
 may disi^ense altogether with the addition of the woi'ds ' and reduced,' as re- 
 quired by section 10 of the Act of 1877." 
 
 Accordingly, in such cases a petition should be jorepared as in Form 300, 
 supra, and immediately before or after presentation an application should be 
 made by motion ex parte to the Judge to whom the petition is going to be or 
 has been assigned, for an order dispensing with the words "and reduced " until 
 the hearing of th6 petition. An order on such an application is generally ob- 
 tained without difficulty, and the following are instances: In re Langdale 
 Chemical Manure Co., 26 W. R. 434 ; Llynvi Co., 26 W. E. 55 ; In re Neiv Civil 
 Service Co-operation, Limited, Hall, V.-C, 5 Nov. 1879, B. 2222 ; In re Positive 
 Government Security Life Assurance Co., Limited, Hall, V.-C, 23 July, 1880. See 
 infra. Form 303. 
 
 The petition should then be presented, and the secretary should be requested 
 to have it answered for the next petition day. No difficulty is now made about 
 so answering a petition, where it appears that the case falls within section 4 of 
 the Act of 1877. In an early case under this section, the course adopted was 
 first to present the petition, and then upon an ex parte motion an order was 
 made dispensing with the words " and reduced," and directing the petition to 
 be on the paper without the chief clerk's certificate. But this is not the coiu'se 
 now usually adopted. The petition then comes on for hearing without any 
 notice or advertisement. 
 
 B B 2
 
 872 
 
 PETITIONS. 
 
 Form 300. The order is generally prefaced by a statement that " the Court not requiring- 
 
 any notice to creditors, or advertisement of any notice, that the petition was 
 
 appointed to be heard this day ; " and it usually dispenses with the use of the 
 words " and reduced " altogether. Under section 4 of the Act of 1877, the 
 Court may require the company to publish the reasons for reduction, but this 
 power is not exercised, the company being merely required to give notice of the 
 registration of the order in certain newspapers. (See Llynvi Co., 26 W. E. 55). 
 
 As to advertising the order, see Form 30-i, infra. 
 
 See Be Plaskynaston Tube Co., 23 C. D., where shares having been issued at a 
 discount of eighty per cent., Chitty, J., required the consent of creditors, not 
 being satisfied that a proposed cancellation of capital would not diminish the 
 liabilities of members. Upon evidence that all the creditors had been paid off 
 except one who consented, the order was made. 
 
 2. In all other cases, immediately after the passing of the special resolution, 
 the words "and reduced" must be added to the company's name. See s. 10 
 of the Act of 1867. A petition should then be presented as in Form 299, and 
 the subsequent procedure will be found set out in great detail in the Order of 
 Court of 21 March, 1868, Buckley, 482. In these cases it generally takes from 
 six months to a year to comi^lete the reduction. When the order is made 
 confirming the reduction, it generally provides that the company shall con- 
 tinue the words " and reduced " for a fortnight or a month. 
 
 Every creditor must consent or be secured. In Re Credit Fonder, 11 Eq. 356, 
 it was held that creditors who did not dissent must be deemed to assent ; but 
 in Re Patent Ventilating Co., 12 C. D. 254, Fry, J., declined to follow that case, 
 and Kay, J., has repeatedly declined to follow it. Section 11 makes evidence 
 of the consent, security, or discharge of every creditor a condition precedent. 
 
 In either case the petition should be supported by an affidavit (usually made 
 by the chairman of the directors), deposing to the facts stated. A copy of the 
 memorandum and articles, and the minute book of the proceedings of general 
 meetings, should be made exhibits. 
 
 Under s. 15 of the Act of 1867, a minute has to be approved by the Coux't, 
 and filed with the Eegisti-ar of Joint Stock Companies. The minute must show, 
 with respect to the capital as altered, the amount, the number of shares, the 
 amount of each shai-e, and (under s. 4 of the Act of 1877) the amount per share 
 deemed to be paid up. The following are examples of minutes which have 
 been approved : — 
 
 "Tlie capital of The Hydraulic Engineering Co., Limited, is 80,000Z., divided 
 into 20,000 shares of -il. each. At the time of the registration of this minute, 
 2,500 of the said shares are deemed fully paid up, and 9,493 of the said 
 shares are deemed to have 31. per share paid up thereon, and the remaining 
 8,007 shares have never been issued. By order of M. E., 6 July, 1878, A. 
 1332." 
 
 " The capital of the General Mining Association, Limited, is 219,752L, divided 
 into 27,469 shares of 8L each, fully paid up. Malins, V.-C, 17 Jan. 1880." 
 
 " The capital of the company is 1,000,200L sterling, in 50,000 A. or ordinary 
 shares of lOL each, on which the sum of 101. per share has been, and is to 
 be deemed to have been paid up, and 25,000 B. or preference shares of 201. 
 each, on 22,861 of which the siun of 20L per share has been and is to be deemed 
 to have been paid up, and on the remaining 2,136 (which have not yet been 
 issued) no sum per share has been, or is to be deemed to have been paid up, 
 and 200 shares of If. each, on which the sum of If. per share has been, and is to 
 be deemed to have been paid up. Railway Share Trust Co., M. E., 4 Aug., 1879." 
 
 "The capital of the Higginshaw, dfc, Co., Limited, is 90,000Z., divided into 
 18,000 shares of 51. each. At the time of the registration of this minute 14,257 
 shares only have been issued and allotted, upon each of which the sum of il. 10s. 
 has been and is to be deemed to be jDaid uj), but in respect of each of the said 
 shares the comi^any is empowered to pay off or return 20 jier cent, of the 
 iimount so paid up, upon this footing, that the amount paid off or returned, or
 
 FOEMS. 373 
 
 any part thereof, may be called up again." — Lane. Pal. Ct. Order, Ctli Yeh., Form 300. 
 
 1884. 
 
 In all cases, the order having been obtained, an office copy should be filed 
 with the Eegistrar of Joint Stock Companies, who will thereupon give his 
 certificate in accordance with s. 15 of the Act of 1867. 
 
 Upon the peton, &c. : Let the s^^ecial resokitioii passed at an extra- Form 301. 
 
 ordinary meeting of the sd co, held the day of , and confirmed o7der to 
 
 at an extraordinary meeting of the sd co, hekl the day of , and leduce capital. 
 
 which resohition was in the words and figures fohowing : " That, &c." — 
 be, and the same is hby confirmed : And let an office copy of this order 
 be delivered to the Registrar of J. S. Cos, together with a minute 
 in the words or to the effect set forth in the schedule hto : And notice 
 of the registration of this order and of the sd minute be advertised as 
 follows, that is to say, once in the Times newspaper, &c. : And let the sd 
 
 CO be at Hbty forthwith [or after the day of ] to discontinue 
 
 the addition to its name of the words " and reduced." \_Sdic(lide con- 
 taining minute.'] 
 
 Upon the peton of the Co, Limtd, on 20th July, 1880, preferred Form 302. 
 
 unto this Ct, and upon hearing counsel for the petrs, and upon read- Order to 
 ing the sd peton, an order dated the 19th July, 1880, on affidavit of B., reduce by 
 filed 22nd Jidy, 1880, and the exhiljits A. and B. therein referred to : capital. ° 
 This Ct, not requiring any notice to creditors or advertisemt of any 
 notice that the peton was appointed to be heard this day, doth order that 
 the special resolution passed at the extraordinary general meeting of the 
 CO, held on the 12th June, 1880, and confkmed at an extraordinary 
 general meeting of the co., held on the 5th Jidy, 1880, which resolution 
 was in the words and figures following, that is to say, " That the capital, 
 &c." [see the resolution, supra, Form 163] be confirmed : And let this 
 order be produced to the Registrar of J. S. Cos : And let an ofl&ce 
 copy of this order be delivered to him, together with a minute in the 
 words or to the effect set forth in the schedule hto : And it is ordered 
 that notice of the registration of the sd order and of the sd minute be 
 published once in each of the following newspapers, that is to say, the 
 Times, the Standard, the Daily Telegraph, and the Daily Nea:s : And 
 let the addition of the words " and reduced " to the name of the co be 
 dispensed with altogether. Tlie Positive Government Security Life Assur- 
 ance Co., Limited, Hall, Y.-C, 2;3rd July, 1880, B. 1527. Re Portland 
 Cement Co., Kay, J., 15th Dec, 1882, 
 
 See fiu-ther, supra, note to Form 300, and Seton, 1462. 
 
 For order confirming reduction where the company's capital consisted in part 
 of stock, see North British Aiistralian Co., M. E.., 8 May, 1879, B. 570. 
 
 Upon motion this day made unto this Court by counsel for the above- Form 303. 
 named co : Let the addition to the co's name, of the words " and re- j^ntc-im order 
 duced," be dispensed with until the hearing of the peton for reducing dispensing 
 capital on the 5th day of Nov., 1879, preferred by the said co. Netv Civil words"^s°nd 
 Service Co., Hall, Y.-C, 5tli Nov., 1879, B. 22:>2. reduced." 
 
 In the matter of the Co, Limtd, [and Reduced], and in the Form 304. 
 
 matter of the Companies Acts, 18G7 and 1877. Xotice is hby given Advertisement
 
 874. PETITIONS. 
 
 Porm 304. that the order of the High Ct of Justice (Chancery Division) dated, &c., 
 of order reduc- (confirming the reduction of the capital of the above-named co from 
 
 iug capital. /. to 1., and the minute (api^roved by the Ct) showing with 
 
 respect to the capital of the co as altered the several parlars required by 
 the above statutes, were registered by the Registrar of Joint Stock 
 
 Cos, on the day of . And further take notice that the 
 
 sd minute is in the words and figures following : " The capital, &c." 
 
 Dated the day of . 
 
 • of , 
 
 Solors for the Co. 
 
 Section 15 of the Act of 1867 provides for the registration of the order and 
 minute with the Registrar of Joint Stock Companies, and requii-es notice of 
 sixch registration to be published in such manner as tlie Court may direct. 
 The Court cannot dispense with this publication: so held by Chitty, J.j in 
 Thames and Channel Steamship Co., 31 W. E. 781 ; W. N. 1883, 123. 
 
 Transfer of Business of Life Assurance Co. 
 
 The Life Assurance Companies Act, 1870, 33 & 3J. Vict. c. 61, provides that 
 no company [i.e., life assurance company], shall amalgamate with another, or 
 transfer its business to another, iinless such amalgamation or transfer is con- 
 firmed by the Court as therein mentioned. In the first edition of this woi'k a 
 copy was given [p. 566] of the petition used upon a transfer which was carried 
 out under the Act ; bvit proceedings under the Act are so rare, that it does not 
 seem worth while to repeat the form in this edition. However, an outline of 
 the form referred to is subjoined : — 
 
 The petition was intituled. In the matter of the Act of 1862 [the company 
 being in liquidation], and of the Act of 1870, and of the company, and was 
 presented by the directors and liquidators of the company. It stated : — • 
 
 Porm 305. 1. Formation of co, registered office, objects. 2. Capital. 3. Change 
 Petition. ^^ name. 4. As to the policies and annuities issued or granted. 5, 
 
 Net liability on 31st January, 1874. G. Certain further policies issued. 
 7 and 8. Formation of the jDurchasing association under Friendly So- 
 cieties Acts, rules, objects, «fec. 9 and 10. Trustees of association. 11. 
 Actuarial investigation of affairs of co had been made which showed 
 that some arrangemt was necessary. 12. Condititional agreemt for 
 transfer of liabihties of co to association set out in full. 13. Resolution 
 of CO passed approving of the agreemt and for voluntary winding up. 
 14. Supervision order made. 15. Approval of the agreemt l)y the 
 association in general meeting. 1(5. Statemts showing that the statu- 
 tory requisitions have been complied with. See s. 14 of the Act of 
 1870. 17. Position of association. 18. Statemt that the arrangemb 
 was equitable and would be beneficial, &c. Prayer : That the con- 
 ditional agreemt and the arrangemt intended to be effected thereby 
 might be sanctioned and confirmed by the Ct, and carried into effect. 
 Respondents : The association and its trustees. 
 
 There have been very few proceedings for amalgamation or transfer since 
 the Act of 1870. The writer only knows of the following : — Citizen Assurance 
 to Provident Chibs, 1874; London and Southwarh to London and Lancashire
 
 FORMS. 
 
 S 
 
 10 
 
 1880. See 28 W. E. 5C5; 42 L. T.'217; Colonial Assurance to London, Edin- Form 305. 
 
 burgh, and Glasgow, 1881 ; Great Britain Mutual to National, 1882. See su^jva, 
 
 p. 53, Form of Agreement. 
 
 Eeduction of Conteacts. 
 
 The Life Assurance Companies Act, 1870, s. 22, empowers the Court, in the 
 case of an insolvent company, to reduce the amount of its contracts in the 
 place of making a winding-up order. This power has only been exercised in 
 one case — The Great Britain Mutual Society. There a winding-up order was 
 made by Hall, V.-C, but the Court of Appeal (November, 1880) discharged it, 
 and directed a meeting of policy-holders to be held for the purpose of ascer- 
 taining whether they desired the contracts to be reduced, 16 C. D. 24G. 
 Hall, V.-C, then referred it to an eminent accountant " to inquire and report 
 upon what terms, and subject to what conditions, the contracts of the society 
 should be reduced in place of making a winding-up order, and to settle a 
 scheme for reducing such contracts, for the approval of the Court." Questions 
 of importance having arisen, the referee stated a special case, and the opinion 
 of the Court was taken thereon. Re Great Britain Mutual, 19 C. D. 39 ; 20 C. 
 D. 351. 
 
 The Coiirt held (1), that the date of the jiresentation of the petition was the 
 one at which the calculation should be made for settling the scheme ; (2), that 
 the claims of policy-holders and annuitants which had matured before the date 
 of the presentation of the petition must be paid in full ; (3), that annuities 
 payable after that date must be reduced ; (4), that participating and non- 
 participating policy-holders current must be Tednced 2^ ari passu; (5), that all 
 payments in arrear of premiums, including half premixims left as a charge on 
 the policies, must be paid in full. 
 
 The scheme was then settled, and in due course it was confirmed by the 
 Court, 6 May, 1882. Shortly afterwards an agreement was made with another 
 company under which that company undertook to receive the premiums, and, 
 in consideration of a commission, apply them in paying tlie claims as they 
 matured, and this agreement was sanctioned by the Court. 
 
 The above case shows that the pov/er to reduce contracts, conferred by the 
 Act of 1870, is defective, inasmuch as it leaves untouched claims which happen 
 to have matured before the presentation of the petition. Where such claims 
 amount to a considerable sum it would seem better to take a winding-up order, 
 and then adopt a scheme under the Joint Stock Companies Arrangement Act, 
 1870, either by sale to a new company, or by a subsequent stay of proceedings. 
 A difficulty which arose in regard to a scheme in Be Albert Life Assurance Co., 
 6 Ch. 381, would seem no longer to exist, since the mode of valuing policies and 
 annuities has been settled by the Life Ass. Act, 1872. Upon such a scheme, 
 the matured claims would not be entitled to preferential payment. 
 
 Windiiig-vp Petitions. 
 
 In the High Cfc of Justice. Form 306. 
 
 Chancery Division. Petition of 
 
 Mr. Justice • . judgraent 
 
 In the matter of the Companies Acts, 18G2 and 18C7. 
 
 And in the matter of The Co, Limtd. 
 
 To Her Majesty's High Ct of Justice. 
 
 See s. 81 of the Act of 1862, and ss. 16 and 31 of the Judicature Act, 1873. 
 
 creditor. 
 
 The huml}le petition of , of , showefeh as follows : — • 
 
 1. The Co, Limtd (hereinafter called the co), ^Yas in the month
 
 3-f. TETITIONS. 
 
 Form 306 of , 1872, incorporated under the Cos Acts, 18G2 and 18G7, as a co 
 
 ■ limtd by slir.res. 
 
 2. The registered office of the co is at . 
 
 3. The objects for which the co was established are as follows : — 
 (a) To, &c. 
 
 Here the objects will be set out, or the paragraph may be framed as in Form 
 299. 
 
 4. The nominal capital of the co is 20,000/., divided into 2,00() shares 
 of 101. each. The Avhole of the sd shares have been issued. 
 
 5. Your petr is the holder for valuable conson of a bill of exchange, 
 
 dated the day of , for 250/., payable six months after date, 
 
 drawn by upon and accepted by the co and indorsed by divers 
 
 persons. The sd bill was not met at maturity. 
 
 G. On or about the day of , your petr duly commenced 
 
 and prosecuted an action in the Queen's Bench Division of this Honour- 
 able Ct against the co for the recovery of the amount of the sd bill and 
 interest. 
 
 7. The CO failed to appear to the writ in the sd action, and your 
 
 petr on the day of , signed and recovered judgmt in the 
 
 sd action against the co for the sum of 251/. 5s. and costs, which costs 
 were afterwards taxed and certified to amount to 4/. Gs., making together 
 with the sd sum of 251/. 5s. the sum of 255/. lis. recovered by the sd 
 judgmt. 
 
 8. Your petr on the day of sued out a writ of Jieri 
 
 facias under the sd judgmt ; but on the day of the sheriff of 
 
 the county of , to whom the sd writ was directed, returned the 
 
 same wholly unsatisfied, the co ha^dng no goods or chattels within his 
 bailiwick, upon which execution could be levied. 
 
 See s. 80 of the Act, sub-s. (2). In re Tate Collieries, W. N. 1883, 171, where 
 no execution issued. 
 
 9. The sd judgmt is wliolly unpaid and unsatisfied, and the amount 
 thereof is justly due and owing to your petr. 
 
 10. The CO is unable to pay its debts. 
 
 See s. 79 of the Act, sub-s. (4). Re Flagstaff Co., 20 Eq. 268 ; In re Glolc Co., 
 20 Eq. 337 ; Re Alliance Co., W. N. 1867, 218. 
 
 11. Under the circes it is just and equitable that the co should be 
 wound up. 
 
 Your petr therefore humbly prays as follows : — 
 
 (1.) That The Co, Limtd, may be wound up by the Ct under 
 
 the provisions of the Cos Acts, 18G2 and 18G7 [and that a 
 prov. off. liq. may be forthwith appointed], and that for such 
 ppose all necessary and proper directions may be given. 
 (2.) Or that such other order may l)e made in the premes as to the Ct 
 shall seem meet. 
 
 And your petr Avill ever pray, &c. 
 Note. — It is intended to serve this petition on The Co, Limtd.
 
 POEMS. 377 
 
 As to the Court to which a ■n-iuding-up petition should be presented, see s. 81 Fonn 306. 
 of the Act, and Buckley, 196. 
 
 As to who may petition, see s. 82 of the Act, and Buckley, 198. 
 
 As to when a winding-iip order will be made, see ss. 79, 80, of the Act, and 
 Buckley, p. 184, et seq. 
 
 With regard to paragraph 11 of the above petition, it must be remembered 
 that a mere allegation to the effect therein expressed is not sufficient. The 
 facts which render it just and equitable must be stated, so that the order may 
 be secundum allegata et probata. In re Wear Engine Works Co., 10 Ch. 191 ; 
 Patent Cocoa Fibre Co., W. N. 1876, 60 ; In re Rica Gold Co., 11 C. D. 41. 
 
 See further as to the proceedings, infra, " winding up." 
 
 It may sometimes be deemed expedient to allege that the appointment of a 
 provisional liquidator is desirable, see Form 308, infra, and to pray, inter alia, 
 " that a provisional official liquidator may be forthwith appointed." But the 
 Court can appoint without notice to any person. Gen. O. 1862, r. 15. However, 
 by so framing the petition, the necessity for a notice of motion may sometimes 
 be avoided. 
 
 Formal par is : see Form 30 G. 
 
 1. Youi" petr is the widow aud executrix of A. B., late of X , Form 307. 
 
 in the county of , who died on the day of , 1875. Your petition of 
 
 petr has proved his will. executrix 
 
 2. The above-named co (hereinafter called the co) was incorporated ^lolder.^^ 
 under the Cos Act, 1802, as a co limtd by shares, for the ppose of 
 carrying on the l)usiness of a life assurance co. Its registered office is 
 
 in London. 
 
 .3. On the 28th day of May, 1873, the sd A. B. effected a policy of 
 assui-ance on his own life with the co for the sum of 400/. at the annual 
 premium of 137. 2s. which was regularly pd. It is provided by the sd 
 pohcy that the funds and ppty of the co shall be hable to pay the sd 
 sum of 4007. to the assured within three calendar months after satisfac- 
 tory proof shall have been given to the directors of the co of his death 
 and identity. 
 
 4. Xotice of the death of the sd A. B. having been given to the 
 CO the directors thereof made such inquiries as they thought fit, 
 and satisfactory proof was given to them of such death and of the 
 identity of the sd A. B. On the 8th day of Januaiy, 1870, the secretary 
 of the CO, by the instructions of the directors thereof, wrote and sent to 
 your petr's solor a letter of that date, informing him that the inquiries 
 were finished and that the 4007. would be pd in accordance with the 
 terms of the policy within three months from the date. 
 
 5. Your petr was desirous that the sd sum of 4007. should be pd 
 
 to Mr. D , the London agent of her solor on her behalf, and inquiry 
 
 was therefore made at the office of the co on what conditions the paymt 
 would be so made. The answer given on behalf of the co was that upon 
 production of a receipt for the 4007., signed Ijy your petr, and of her 
 
 authority in writing for the paymt to Mr. D. , the money would 
 
 be pd. 
 
 0. On the day of , 1870, Mr. D attended at the office 
 
 of the CO and produced a proper receipt for the 4007. signed by your
 
 378 
 
 PETITIONS. 
 
 Form 307. petr, and also a sufficient authority in writing signed by her for 
 
 ^ the payint of the money to J\Ir. D , who demanded paymt to him 
 
 accordingly. The money was not, however, pd, nor was any assurance 
 
 given that it would be pd. The manager of the co stated to Mr. D 
 
 that he would bring the claim to the attention of the board of directors 
 
 at their meeting on the day of and that it would then be 
 
 decided, when a cheque for the 400/. would be pd. 
 
 7. The CO has for some time past been in embarrassed circes, and it is 
 unable to pay its debts. 
 
 8. Your petr submits that she is entled to a winding-up order. 
 
 As to winding up an insurance company upon the ground of insolvency, see 
 s. 21 of the Life Assurance Companies Act, 1870, 33 & 34 Vict. c. 61 ; Buckley, 
 540. Tests of insolvency considered, London and Manchester Assoc, 1 C. D. 4G6. 
 A voluntary winding up may be ^ji-i'mki facie evidence of insolvency, British 
 Alliance Corp., 9 C. D. G35. Where the petitioner seeks for an order under the 
 Act of 1870, the petition should be intituled " In the matter of the Life Assur- 
 ance Companies Acts, 1870 and 1872," as well as in the Acts of 1862 and 1867. 
 
 Where the application is imder those Acts the fiat will be special, and pur- 
 suant thereto the chief clerk will, in due course, certify as follows : — 
 
 " In pursuance of the directions given to me by his Lordship, Mr. Justice , 
 
 I certify that a p7-iwi,((/o ere case that the within-named company is insolvent 
 has been established to the satisfaction of the judge, and security for costs has 
 been given to the amount of [IDOL]. The evidence produced consists of the fol- 
 lowing affidavits of the following persons [specif ij them]. Eeceipt of cashier of 
 the Bank of England [10] Nov. [1880] for lOOL deposited in the matter of, &c., 
 under Kule, &c." 
 
 Form 308. 1- The 
 
 Formal pari s : see supra, Form 306. 
 Co, Limtd, hereinafter called the co, was incoi^porated. 
 
 Petition of 
 debenture 
 holder. 
 
 as a CO limtd l)y shares, under the Cos Acts, 18G2 and 1867, in the 
 
 month of , 1873, for the ppose of acquiring and working certain 
 
 patents for the manufacture of from , and for other pposes set 
 
 forth in the memorandum of association thereof. The registered office 
 of the CO is situate at . 
 
 2. The nominal capital of the co was stated in the memorandum of 
 association thereof to be 100,000/., divided into 10,000 shares of 10/. 
 each. 
 
 3. Shortly after the incorporation thereof, the co commenced and has 
 since carried on Inisiness. Upwards of 4,700 of its shares have been 
 issued. 
 
 4. The CO has raised money by the issue of debentures. By such 
 debentures the co promised to pay the sums therein respively mentioned 
 
 on the day of , and interest thereon in the meantime at the 
 
 rate of 7 p. c. p. a., on presentation of the coupons attached thereto on 
 the days named in such coupons respively, and the co thereby charged 
 all its ppty with the paymt of the sd principal sums and interest. 
 
 5. The coupons attached to the sd debentm'es were for interest on the 
 principal sums in the debentures mentd, at the rate afsd, and purport to 
 be payable on the Oth April and r)th October in every year.
 
 FORMS. 
 
 379 
 
 G. Your petr advanced 2,000?. to the co on the security of 20 sucli Form 308. 
 debentures as afsd, and these debentures are stiU held by him. 
 
 7. On the day of last your j)etr applied to the co for pajint 
 
 of the interest which accrued due on your petr's sd debentures on the 
 5th day of April, lS7(i. The co has not pd such interest and there now 
 remains due and owing to your petr in respect thereof the sum of 
 74/. O.s. M. 
 
 8. The CO is indebted to other debenture liolders in respect of the 
 interest on debentures issued Ijy it, and also to divers other persons, and 
 it is unable to pay its deljts. 
 
 9. Some of the assets of the co are pledged l)y way of security, to 
 certain creditors thereof, and the entire assets are insufficient to meet 
 the liabilities. 
 
 10. Several actions, brought by creditors against the co are now 
 pending, and unless such actions are restrained the co will shortly 1)0 
 liable to have judgmt entered and execution issued against it. 
 
 11. Having regard to all the circes, it is just and equitable that the 
 CO should be wound up by the Ct. 
 
 12. It is important and in the interest of the creditors and meml^ers 
 
 of the CO that the ppty thereof, and in parlar certain banx'ls of , 
 
 should be taken possession of by some person appointed by the Ct. 
 
 Your petr therefore humbly prays : — &c. 
 
 A debenture holder who cannot get paid may present a winding-up petition. 
 But he is not entitled to an order against the wishes of the majority of the cre- 
 ditors. Western of Canada Co., 17 Eq. 1 ; St. Thomas' Dock Co., 2 C. D. 117 ; 
 West Hartlepool Iron Works Co., 10 Ch. 618; Uruguay Central Co., C. D. 372; 
 Chapel House Co., 24 C. D. 259 ; 31 W. E. 933 ; 49 L. T. 575. The holder of a 
 mortgage debenture can apjjly for and obtain a winding-up order without giving 
 up or affecting his secvirity. Moor v. Anglo-Italian Bank, 10 C. D. 681. 
 
 1. Incorporation. 2. Registered office. 3. Objects. 4. Capital. Form 309. 
 
 5. The CO is indebted to your petr in the sum of J. for procu- petition of 
 
 ring the insertion and publication of the co's jirospectus in divers news- simple contract 
 papers pursuant to orders given to your petr by the authority and on 
 behalf of the co. 
 
 6. Full parlars of your petr's charge for procuring the insertion of 
 the sd prospectus in the newsixxpers afsd are contd in an account 
 which was long since furnished by your petr to the co. Such charges are 
 fair and reasonable. 
 
 7. Your petr has made repeated and m-gent aj^plicons to the co fur 
 
 paymt of the sd sum of L, but the co has neglected to pay or satisfy 
 
 the same. 
 
 8. The CO is [insolvent and] unal)le to pay its debts. 
 0. [Just and equitable.] 
 
 A creditor for less than 501. may petition. So held by Bacon, V.-C, in 
 Scovell's Hamble Fisheries Co., 16th Feb., 1884, where petitioner's debt was 20?. 
 undisputed. At the hearing the company offered to pay the amoimt, but with- 
 out costs. Bacon, V.-C, ordered them to i^ay the costs. 
 
 creditor.
 
 380 
 
 PETITIONS. 
 
 Form 310. I. to C. \_Siate pctr'' s case for ii'indhi<j up.'] 
 
 Petition where "• ^^^i the day of , A., of , presented a peton to this 
 
 prior petitioner Honourable Ct intituled in the above matters, and alleo-ina: amons: other 
 
 thing's that the co was indebted to him in the sum of /., and that 
 
 repeated apjjlicons had been made for the paymt thereof, and that the co 
 was unable to pay its debts, and praying to the effect hereinafter prayed: 
 But the CO is about to pay off the amount due from it to the sd A., or to 
 make some other arrangemt with a view to the withdrawal of the sd 
 peton, and the sd peton is not being liondfide prosecuted. 
 
 Where two or more petitions have been presented and the subseqiient peti- 
 tioners had not notice of the presentation of the first, the usual course is to 
 make one order onalb as above. Owen's Patent Wheel Co., 22 W. E. 151 ; W. N. 
 1873, 226. But each petition will be looked at separately on its own merits, 
 and if no case is made must (unless in an exceptional case) be dismissed with 
 costs. In re European Banking Co., 2 Eq. 521. 
 
 The presentation of a subsequent petition may be justifiable, e.g., where there 
 is reason to believe that the first petition is collusive. In re Humber Iron Works 
 Co., 2 Eq. 15 ; United Service Co., 7 Eq. 76. "Where a second petition is pre- 
 sented, the second petitioner must allege and be prepared to make out an objec- 
 tion to the prior petition, e.g., collusion. In re Norton Iron Co., 26 W. E. 92. 
 As to transfer of concurrent petitions, see m//-a. Form 408. As to costs of second 
 petition incurred after notice of first. General Fin. Bk., 20 C. D. 276. 
 
 Form 311. 
 
 Petition by 
 company un- 
 able to pay 
 its debts. 
 
 Formal penis : see Form 30G. 
 
 The liumble peton of The Co, Limtd, showeth as follows : — 
 
 1 to 4. Your petr, the above-named co (hereinafter called the co), 
 was, &c., [incorporafion and office, odjecfs and cajjital, commenccmt of 
 husinpss']. 
 
 0. In the course of its business the co has accepted bills of exchange 
 to the extent of 5,300/. and upwards. Two of these bills, for 700/. and 
 
 500/. respively, l^ecame due on the day of , but the co was 
 
 unable to meet tliem. They still remain unpaid. 
 
 G. The remainder of the sd bills will arrive at maturity in the course 
 
 of the month of , 1880, and the co has no funds with Avhich to meet 
 
 them. 
 
 7. The assets of the co are valuable. They consist in pt of a colliery 
 
 which was purchased in the year at a cost of /., of machinery 
 
 and plant, of book debts amounting to upwards of /., and of uncalled 
 
 capital to the extent of /. There are divers incumbrances affecting 
 
 the co's ppty, and the co cannot obtain any further advance upon the 
 security thereof. 
 
 8. The co\s account at its l)ankers has l)cen overdrawn to the extent 
 
 of /. or thereabouts, and tlie bankers refuse to allow any further 
 
 overdraw. 
 
 y. The go's colliery is in full working order, and upwards of 
 
 men are employed in or al)out the same. It is worked at a considerable 
 profit. 
 
 10. The assets of the co if realised would l)e far more than suflBcient 
 to pay and satisfy all the debts and liabilities of the co.
 
 FOEMS. 381 
 
 11. The CO is unaljle to pay its debts, and in the circes afsd it is just Form 311. 
 and equitable that the co should be wound np. 
 
 Your petr the co therefore humbly prays : 
 [As in Form 21);).] 
 
 Note. — It is not intended to serve this pctoii on any person. 
 
 Where a company wants to be wound ui) the usual course is to get a friendly- 
 creditor to petition. 
 
 On the day of your petr served on the co, by leaving the Statement of 
 
 same at the registered office thereof, a demand under his hand requiring service of 
 
 '^ J. o statutory 
 
 the CO to pay the sd sum of 1., and the co has neglected to jjay such demand. 
 
 sum or to secure or compound for the same to the reasonable satisfon of 
 your petr. 
 
 Where a jjetitioning creditor has served a statutory demand, pursuant to 
 section 80 of the Act, a paragraph should be inserted in the j^etition as above. 
 But it must be borne in mind that omission to pay is not " neglect " within the 
 meaning of the section if the debt is bond fide disputed by the company. Lon- 
 don ^ Paris Banking Co., 19 Eq. 444. The petition should not be presented 
 until after the expiration of twenty-one days from the service of the demand. 
 Catholic Co., 33 L. J. Ch. 325 ; 2 D. J. & S. 116. But it need not be presented 
 immediately afterwards. Imperial Hydro. Co., 49 L. T. 147. As to restraining 
 the presentation of a winding-up petition, where debt disputed, see Form 345, 
 infra. 
 
 1. &c. [Slate pefitioner's case, e.g., maliliiy io i)ay doMsJ] Form 312. 
 
 12. The assets of the co are of considerable value, and if prudently p^tj^ionby 
 realised will be sufficient not only to pay and satisfy the co's debts and fully paid up 
 liabilities, but to pay a suljstantial dividend to the members. siaieio tei. 
 
 A fully paid-up shareholder must allege and show that he has a tangible in- 
 terest in the assets. jRe Uica Gold Co., 11 C. D. 43 ; Diamond Fuel Co., 13 C. D. 400. 
 
 Title, &c., see supra, Form 3i»(i. 
 
 The humble peton of B. of , showcth as follows : Form 313. 
 
 1. Incorporation of co. 2. Office, 'd. Objects. 4. Capital. 5. Petition for 
 Business conmienced. supervision 
 
 . order. 
 
 6. The CO is indebted to your petr m the siun of ■ /. for money 
 
 lent to the co on the security of a promissory note dated , whereby 
 
 the CO promised, &c. 
 
 7. At an extraordinary general meeting of the co duly convened and 
 
 held at on the of , an extraordinary resolution was passed 
 
 as follows : 
 
 That it has been proved [wind'nuj-v}) rpsolidiou']. 
 
 And at the sd meeting C. of was duly appointed liq for the 
 
 pposes of the sd winding up. 
 
 8. Since the i3assing of the sd resolution your petr has made several 
 applicons to the co and the sd liq forpaymt of the })rincipal moneys and 
 interest secured by the sd promissory note. The sd liq has admitted 
 that such principal moneys and interest are justly due from the co to 
 your petr, but he has not pd the same. 
 
 9. The assets of the co consist (1) of uncalled capital to the extent of
 
 383 PETITIONS. 
 
 Form 313. G,000/. or thereabouts, (2) of a freeliold coUieiy, and (o) of other items 
 of inconsiderable value. 
 
 10. No call has been made by the sd liq upon the members of the co, 
 and the co's colliery has not been sold. 
 
 11. A pchaser of the sd colliery could readily be found, but your petr 
 is informed and believes that the sd liq intends to retain the colliery 
 mitil a revival in trade shall render it more valuable than at present. He 
 recently refused an offer of 1, for the colliery. 
 
 12. Your petr has on several occasions urged the sd liq to provide the 
 f uuds to pay off" the co's creditors, either by sale of the co's ppty or by 
 calling up the uncalled capital, but without success. 
 
 13. The debts of the co amount to /. or thereabouts, and the co 
 
 is unable to pay the same. 
 
 14. The majority of the co's creditors desire that an order should be 
 made for continuiug the voluntary winding up under the supervision of 
 the Ct, and unless such an order is made the interests of the co's creditors 
 will be seriously prejudiced by the voluntary winding up of the co. 
 
 Your petr therefore humbly prays : 
 
 1. That an order may l)e made for the continuance of the voluntary 
 winding up of the co, Init subject to the supervision of the Ct. 
 
 2. Or that such other order may be made in the premes as to this 
 Honourable Ct shall seem meet. 
 
 And your petr will ever pray, &c. 
 
 It is intended to serve this peton on the above-named co, and on B. 
 the liq thereof. 
 
 It is not in general expedient for the company to present a petition. 
 
 The power to make a supervision order is given by section 147 of the Act of 
 18G2. S. 82 of the Act applies^, and accordingly the order may be made on the 
 petition of the company, a creditor, or a contributory. Pen-y-Van Co., G C. D. 
 4/7. The liquidator can, under sections 133 and 95, present a petition in the 
 company's name. Hooker's Cream Milk Co., M. E. 23 S. J. 231. Where a super- 
 vision order is desired it will generally be found best to apjjly for a compulsory 
 order, or for a compulsory order and in the alternative for a supervision order. 
 As to the circumstances in which a supervision order will be made, see Buckley, 
 301. S. 149 provides that the wishes of the creditors and contributories are to 
 be regarded. 
 
 A great many suj^ervision orders are made every year, but the majority are 
 made on petitions for compulsory orders. Thus, where a comjDany gets into 
 difficulties, the directors very commonly present a petition in the company's 
 name, or get a friendly creditor to present a petition, for a compulsory order, 
 and at the same time convene a meeting to pass an extraordinary or special 
 resolution to wind up. Upon the pi;esentation of the petition, actions and pro- 
 ceedings can be restrained or stayed under section 85, and a provisional liqui- 
 dator appointed. If the winding-up resolution is passed, before the hearing of 
 the petition, evidence of the fact is adduced, and the Court is asked to make a 
 supervision order. If the resolution has not been jDassed before the hearing, 
 the Court is sometimes asked to allow the petition to stand over for a week or 
 so, in order that the resolution may be passed. 
 
 Again, where a petition for a compulsory order is presented by a creditor, it 
 is not uncommon forthwith to pass resolutions to wind iip voluntarily ; and then 
 at the hearing, with the support if possible of some other creditors, to resist a
 
 FOEMS. 
 
 383 
 
 compulsory order, but to offer to submit to a supervision order. Although as Form 313, 
 between the company and an unpaid creditor he is entitled to a compulsory 
 order, yet as between such creditor and the company's other creditors the 
 -wishes of the majority will be consulted by the Coui-t, and accordingly if they 
 wish for a supervision order the Court will make one. In re West Hartlejyool 
 Ironworks Co., 10 Ch. Ap. G18. 
 
 So, too, where a voluntary Avinding up has commenced, and a petition for a 
 compulsory order is presented by a creditor or contributory who would seem 
 likely to get an order, it is sometimes arranged by way of compromise at or 
 before the hearing, that a supervision order shall be made. 
 
 See further as to the proceedings, infra, " Winding-up." 
 
 Ill the Chancery of the County Pahitine of Lancaster. 
 [Manchester] district. 
 
 In the matter of the Companies Acts, 1862 and 18G7 : 
 
 And in the matter of The Co, Linitd : 
 
 And in the matter of the Ct of Chancery of Lancaster Acts, 
 1850 and 1854. 
 To the Right Honourable the ChanceUor of the Ducliy and County 
 Palatine of Lancaster, 
 
 The humble peton of of . 
 
 Here set out the facts as in a petition to the High Coiu-t. 
 
 Your petr therefore huml)ly prays : 
 
 1. That [as in Form 300.] 
 
 2. Or that such other order may be made in the premes as to your 
 lordship shall seem meet. 
 
 And your petr -\nll ever pray, &c. 
 XoTE.— [As in Fonn 30G or 311.] 
 
 As to proceedings in the Palatine Coiu-t, see 13 & 14 Vict. c. 43 and 17 & 18 
 Vict. c. 82. Winding-iip orders are frequently made by that Covu-t in the case 
 of companies having their registered offices within the jurisdiction. As to en- 
 forcing orders of the Palatine Court, see the above-mentioned Acts ; In re 
 Longdendale Cotton Co., 8 C. D. 150 ; Dan. Forms, p. 772 ; Snow & Winstanley's 
 Chancery Practice, Lancaster. As to appeals, see Re Manchester Economic, 32 
 W. R. 325. 
 
 Ill the Ct of the Vice-Warden of the Stannaries. 
 Stannaries of [Devon.] 
 
 In the matter of the Companies Acts, 1802 and 1807 : 
 
 And in the matter of the Co, Limtd. 
 
 To the Vice-Warden of the Stannaries. 
 
 The hmnble peton of • of showeth to his honour as follows : 
 
 \^Here set out flic facts as in any of the ahove forms, and conclude as in 
 Form 300.] 
 
 Where a company is or has been engaged in working a mine within the juris- 
 diction of the Stannax'ies, the Court of the Vice- Warden is the Court within the 
 meaning of s. 81 of the Act of 1862, and accordingly that Court has exclusive 
 jurisdiction, unless a certificate is obtained as mentioned in the section. See 
 Silver Valley Mine, 18 C. D. 472 ; Penhale S," Lomax Co., 2 Ch. 398. As to ap- 
 peals from the Stannaries, see Buckley, 27G, 277, 281. Where the registered 
 
 Form 314. 
 
 Petition to 
 Lancaster 
 Palatine Court. 
 
 Form 315, 
 
 Petition in 
 
 Stannaries.
 
 384 
 Form 315. 
 
 PETITIONS. 
 
 office is situate in London the Vice-Warden very commonly hears the petition 
 at the Law Institution. See 32 & 33 Vict. c. 19, s. 38, as to his power to hear 
 out of the jurisdiction, Buckley, 205. See Book on Procedure in Stannaries, 
 published by Sweet, Chancery Lane. 
 
 Petitions under the Joint Stock Com2Mnies Arrangement Act, 1870. 
 [For ovitlines of several such petitions, see infra, " Arrangements."] 
 
 Staying luinding-u^ proceedings. 
 
 By section 89 of the Act it is provided as follows : — 
 
 " The Court may at any time after an order has been made for winding up a 
 company, upon the application by motion of any creditor or contributory of the 
 company, and upon proof to the satisfaction of the Court that all jiroceedings 
 in relation to such winding up ought to be stayed, make an order staying the 
 same, either altogether or for a limited time, on such terms and subject to such 
 conditions as it deems fit." 
 
 The power given by this section has been exercised in a considerable number 
 of cases. 
 
 In the South Barrule Co., 8 Eq. G88, a supervision order had been made and 
 all the debts having been paid, and there being a balance in the liquidator's 
 hands sufficient to meet arrears of current expenses, the great majority of the 
 members were desirous that an arrangement should be sanctioned for the re- 
 sumption of business by the company, and that the winding up shovild be 
 stayed. A petition, of which a note is given below, was thereupon presented 
 to the Court praying for an order to stay ftu'ther proceedings. It was opjDosed 
 by one shareholder only, and under the circumstances, James, V.-C, made the 
 ordei", the value of the dissentient's interest to be ascertained and paid to him. 
 See order in Pemberton, 1st ed., 671. 
 
 Section 89 only ai^i^lies to a winding up by or under the supervision of the 
 Court, but by the joint effect of section 138, infra, and that section, an order to 
 stay can be made in a voluntary winding up. The power to stay in a voluntary 
 "vvinding-up was exercised by Hall, V.-C, in the Bog Mining Co., L. J., Notes of 
 Cases, 1875, 48 ; and by Malins, V.-C, in the case of the Woollen Trade Asso- 
 ciation, 12 Nov. 1875. 
 
 As to staying the winding iip where the petitioner's debt is disputed, or 
 pending an appeal from a winding-up order, see infra. 
 
 In the first edition of this work (p. 618), a coj^y of the petition iised in the 
 case of the South Barrule Co., was given. The following is an outline of it — 
 
 Petition to 
 .stay wind- 
 ing iq.. 
 
 Form 316. Petition by W., chairman of directors and a contributory of company : — 
 
 1. Formatiou of CO. 2. Particulars of memoraudmn. 3. No articles. 
 4. What shares issued. 5. Petr's shares. G. Eesolutions to wind up 
 and appoiiitiug liqs. 7. Supervision order made. 8. List of contribs 
 settled. 9. All debts pd. 10. Certain compromises with contribs 
 sanctioned. 11. Who present contribs. 12. .Notice concerning meeting- 
 of contribs to consider jiosition and decide Avhether a stay expedient. 
 13. Meeting held and resolution passed appro'sdug accounts and in 
 favour of resimiption of business. 14. Circes which led to the winding- 
 up. IT). Resolutions in favour of paying out dissentients. IG. Notice 
 of jiroposed arrangemt sent to contriljs. 17 and 18. Large majority in 
 favour and resolution approving scheme. 19. Proposed order for benefit 
 of all parties.
 
 FOEMS. 385 
 
 Prayer : 1. That pursuant to aud by virtue of the powers conferred upon Form 31 6. 
 the Ct by the 89th and 138th Sections of the Companies Act, 
 1862, and of all other powers the Ct hereunto enabling, all further 
 proceedings in relation to the sd winding up may be ordered to 
 be stayed. 2. That the sd liqs may ])e ordered out of the assets 
 of the CO in their power to pay the costs of this peton, and to 
 pay and transfer to the directors of the sd co all the monies, 
 ppty, aud effects of the sd co in their possession or power, and 
 tliat they may thereupon be discharged from all further liability. 
 
 3. Or fm-ther or other order. 
 
 Respondents : The co and the liqs. 
 
 C C
 
 JUDGMENTS AND OEDERS. 
 
 Rescission of 
 contract to 
 take shares 
 misrepre- 
 sented. 
 
 Form 317. Declare that the pit was indnced to apply for the 2,000 shares in the 
 deft CO as iu pleadings mentd by the frand and misrepresentation of the 
 dcfts. Order and adjndge that the contract made between the pit and 
 the deft co in the pleadings mentd to take the sd 2,000 shares be 
 rescinded, and that the register of the members of the deft co be forth- 
 with rectified by striking out the name of the pit iu respect of the sd 
 2,000 shares. And let the defts, within seveu days after service of this 
 judgmt, pay to the j)lt the sum of 250/. pd by the pit as a deposit 
 upon the appHcon for the sd shares, together with interest thereon at 
 the rate of 5 p. c. p. a. from 7 Jan., 1881, to the day of paymt. And 
 let the l,2r)0/. money on deposit in Ct to the credit of this action, Gihh, 
 &c., and any interest to be credited in respect of the sd money on deposit, 
 be pd to the pit, such sum of money on deposit l^eing the total of the 
 750/. and 500/. pd into Ct by the pit pursuant to the sd order of 27 April,. 
 1881, and the interest on the sd money on deposit to be applied by the 
 pit in pt paymt of the costs hereinafter mentd. And let the defts also, 
 Avithin seven days after service of this judgmt, pay to the pit interest on 
 the sd sum of 1,250/. at the rate of 5 p. c. p. a. fi-om 14 May, 1881 (the 
 date when the sd sums were pd into Ct to the day of paymt). Stay all 
 further proceedings in the action of the Co. v. W. G., 1881, G. 457 
 \_acHon against pit for calls']. Tax the pit's costs of this action, and of 
 the sd action of Gibb v., &c.. and of the sd counterclaim, and in 
 such taxation the costs of the first mentd action and the second mentd 
 action, and of the sd counterclaim, are to be distinguished, and the sd 
 interest on the sd money on deposit is to be deducted from the sd costs of 
 the sd first mentd action, and the balance certified. And let the defts pay 
 to the pit the balance of his sd costs of the sd first mentd action. And 
 let the deft co pay to the pit his costs of the sd second mentd action, 
 and of the sd counterclaim. Gibb v. Grraf SovtJiern Mysore Gold Co. 
 and others [the directors']. Manisty, J., for Kay, J., 10 Feb., 1882. 
 
 The decision in the above case was affirmed on appeal, 22 May, 1S82, and as 
 the case has not been reported, it may be convenient here to give a copy of the 
 Judgment of Jessel, M. R., which is of considerable interest : 
 
 " This ease is one of those of which we have had too many of late years, in
 
 FORMS. 387 
 
 Avhicli a prospectus has been issued to get people to subscribe to a speculative Fomi 317. 
 
 concern. In this case it is alleged to be some valuable mining rights of the ~ 
 
 Soiithern Mysore Estates in the Province of Mysore, Southern India, it states 
 that, ' The directors will at once after allotment make ax-rangements for the 
 erection of all necessary machinery for the energetic working of the mines to 
 secure an early return of profit ; in the meantime a sum of 5,250L has been 
 deposited with the bankers of the company, in the names of the trustees, which 
 amount will guarantee a dividend of seven per cent, ujwn the whole capital of 
 the company for the first year after allotment, before the exijiration of which 
 time the directors hope to be in a position to jjay handsome dividends out of the 
 profits of working the mines. The price to be paid on the acquisition of the 
 property is 45,000L,of which 32,000L in shares divisible according to the terms 
 of the purchase agreement. The capital of the comi^any has been fixed at 
 75,000/., and after payment for the property of 45,000L in cash and shares, 
 30,000?. in cash will remain for machinery and working capital, a sum 
 amply sufficient for the thorough development and working of the mines. 
 Besides the guaranteed dividend of seven per cent, for the first year upon the 
 capital of the company, all the expenses of the formation and advertising iip 
 to the date of allotment are provided for under the agreement for the acquisi- 
 tion of the property.' Then it states: 'The only agreement entered into is 
 one dated 7th December, 1880, and made between certain persons therein named 
 and the trustee on behalf of the company,' which it is said may be seen at the 
 offices of the company. The plaintiff siibscribed for 2,000 shares, relying on 
 that prospectus, and he was very much surprised to get an allotment of the 
 whole number. He directed some enquiries to be made, and the i-esult of those 
 enquiries by his solicitor was that the solicitor went to look at the agreement 
 in question, and it turned out the arrangement was this, the sellers or vendors 
 who had acquired, or professed to have acqiiired, certain rights in this gold 
 mine, were parties to an arrangement with one Henry Dyer, who is what is 
 commonly called a promoter, and there is a nominal trustee for the intended 
 company ; having arranged for the 75,000?. capital, the way they deal with the 
 money is this : 32,000?. is to be paid to the vendors, 13,000?. is to be paid tO' 
 Dyer, and Dyer is to guarantee the expenses. The form is that he is to deposit 
 or procure to be deposited 5,000?. of this guarantee fund, but I have no doubt in 
 fact that he was to borrow it or get it for a few days only, for I see the 13,000?. 
 is to be paid in this way, ' 5,000?. part thereof within ten days from the day of 
 the first allotment of shares' (that is, all the deposit money except 250J.) 'and 
 the balance thereof by three equal instalments to be paid respectively at the 
 expiration of one month, two months, and three months respectively from the 
 day of first allotment aforesaid.' So that, though not in form, in substance the 
 5,250?. is provided out of the 13,000?. promotion money ; in other words, the 
 whole of the sum for guarantee, besides something like 8,000?., is to be paid 
 over and above the 32,000?., the real price paid to the comiDany. I do not say 
 that there is not some kind of criticism on the words of this jirospectus, and 
 that if you impoi-t the doctrines of political economy, it might not be possible 
 to say that when you give a guarantee some part of the consideration is to be 
 paid for the guarantee, biit the question is what do the words mean in their 
 primary sense, and what do the people who issue the prospectus intend the 
 public to believe ? I have no hesitation in saying that they mean, read by the 
 ordinary run of mankind, and by anybody not an etymologist or a political 
 economist, that 45,000?. is to be jjaid as the price of the property, and that the 
 guax'antee fund is found by the vendors or on their behalf. That is the mean- 
 ing of it, and that is what the people who read it would understand. The 
 plaintiff so understood it, Mr. Justice Manisty so xinderstood it, I so xxnderstaxxd 
 it, and my learned colleagxxes so xxndex'stand it, axid I have no doixbt that is the 
 fair xneaning of it. What are we to say to people who issxxe such a prospectus 
 when they start sixch an undertaking as this 'i Coxisideriixg the course which 
 has been taken >iy Mr. Higgins on the part of the directors, I will say no more, 
 
 c c 2
 
 388 
 
 JUDGMENTS AND OEDEES. 
 
 Form 317. ^J^^t as it was argued fully on belialf of the company, all I will say is that I 
 
 think with Mr. Justice Manisty that it is a very clear case, and I go further 
 
 and say a very gross case, and that the only way to deal with it is to dismiss 
 the appeal with costs/' 
 
 Sir James Hannen.—" I entirely agree." 
 
 Lord Justice Lindley. — " I also agree ; the less said the soonest mended." 
 For other cases of rescission, see -Ross v. Estates Invest. Co., B. 2120, 3 Eq. 
 122, as varied on appeal, L. C, 22 July, 1868, B. 2350, 8 Ch. G82 ; Seton, 1355 ; 
 Henderson v. Lacon, A. 27SS, 5 Eq. 249. And see supra, pp. 231, 361. 
 
 Another. 
 Accounts 
 directed. 
 
 Form 318. Let the register of memljers of co be rectified by omitting name of pit 
 as a shareholder. Injunction to restrain proceedings for calls. Deft co 
 to take all necessary ste])s to vacate jndgmt already entered np. And 
 let the following accounts ])e taken : I. An account of all sums pd by 
 the pit to the deft co, or to the late deft T. and the defts P., &c., or 
 either of them, or any person or persons on behalf of or for the use of 
 the deft co, with interest at 5 p. c. p. a. on such sums from the respi^-e 
 days when the same were so pd. 2. An account of all smns pd by the deft 
 CO to the pit, with interest at 5 p. c. p. a. on such last-mentd sums, from 
 the respive days when the same were so pd. Let the deft co and P., &c., 
 and M. T., the executrix of the late T., wdthin one month after the date 
 of the chief clerk's certificate, pay to the pit the amount certified to be 
 due to him upon the balance of the sd accounts. Defts to pay pit's 
 costs of suit. And hi case deft M. T. shall not admit assets of late deft 
 T. deceased, for the ppse of this decree [account of jjcrsonal estate to Ic 
 iali:c)i\. And let pit be at libty to prove under the windmg-up of co for 
 W'hat shall be certified to be due to him from deft co upon the balance of 
 sd account, and also for such costs as afsd, and to apply at chambei's as 
 to any such costs. Xotice of decree to be given to registrar. Lil)ty to 
 apply. Kont v. Freehold Land Co., Wood, V.-C, 8rd Aug., 18(;7. A. 
 1>239, h Eq. 588 ; 3 Ch. 493. 
 
 In the above case the bill was not filed until after the presentation of a wind- 
 ing-up petition, upon which an order Avas subsequently made, and accordingly 
 on appeal, following Oakes v. Turquand, L. E. 2 H. L. 325, the bill was dis- 
 missed on the ground that it was filed too late, but the order was to be withoiit 
 prejudice to any claim by the plaintiff against the directors in some other pro- 
 ceeding. See s«jjra, p. 232. 
 
 Form 319. 
 
 Judgment 
 setting aside 
 .sale of conce.s- 
 sion and 
 ordering 
 repayment. 
 
 Declare that the sale to tlie })lt co of the concession of 8 May, 18G9, 
 in the pleadings mentd was fraudulent, and ought to be set aside, and 
 order and decree the same accordingly. Declare that H. and the 
 estates in liquidon and sequestration of the defts B. and P. L. & Son 
 as a CO, and C. L,, &c., the only partners of the sd co as individuals 
 in the pleadings mentd, are jointly and severally lia])le to make good 
 to the pit CO the sum of 65,000/. so pd for the pchase of the sd conces- 
 sion, together with interest thereon at the rate of 4 p. c. p. a. from 
 31 May, 1871, and the costs of this suit. Declare that the defts E. and 
 K. are jointly and severally lial)le to make good to the pit co the sd 
 pchase money to the extent of 15,000/. improperly pd to the sd
 
 FOEMS. 3S0 
 
 (lefts as in the pleadings lueutcl, together with interest on the sd sum of Form 319. 
 15,000/. at rate afsd from 31 May, 1871, and the costs of this suit. 
 And deft H. not electing to take an account of the profits (if any) made 
 by the pit CO from the working of the Island of A. V. since 31 May, 
 1871 ; let deft H. on or before 1 June, 1876, pay to the pit co 
 05,000/., together with interest at 4 p. c. p. a. from 31 May, 1871, to 
 the time of paymt. Libty for co to prove against estates of the deft 
 B. under the liquidon proceedings initiated by him, and also under 
 the sequestrated estates of P. L. & Son as a co, and C. L., &c., as indi- 
 viduals, for the said G5,000/. and interest at 4 p. c. p. a. from 31 May, 
 1871, up to the dates of the liquidon and sequestration respectively, and 
 for the costs of this suit. And let defts E. and K. on or Ijcfore 1 June, 
 187G, pay to the pit co sd sum of 15,000/. with interest, &c., to the day 
 of paymt. Declare that the persons paying the said G5,00u/. and interest 
 and pit's costs of suit as afsd shall be entled to the benefit of the letters 
 l^atcnt granted, &c., and of the documt or concession, &c. And pit co 
 shall at the expense of such persons paying as afsd deal with sd letters 
 patent and concession as sd persons shall reasonably require, or, in case 
 of difference, as the Ct shall direct. And declare that any sum which 
 shall be pd to the pit co by the defts E. and K. or either of them on 
 accouut of the 15,000/. and interest shall be taken in satisfon j^ro tanto 
 of the 65,000/. and interest payable by the deft H., and provable, &c., 
 and that any sum or sums over and above 50,000/. with interest, &c., 
 Avhich shall be pd to pit co by deft H., and the estates of, kc, shall be 
 taken in satisfon ])ro tanto of the 15,00(>/. and interest. Defts to pay 
 costs of suit. Dismiss bill as against L. without costs. And pit co 
 ha-sing arranged to pay the deft R, 15(J/. for the costs of suit, dismiss 
 l)ill as against him. Libty to apply. Pliospliatc Scicage Co. v. Hart- 
 mont, Malins, V.-C, 22 Mar., 1876. B. 481. 
 
 In the above case, the promoters had fonned the company and sold to it a 
 concession which they knew was voidable ; the real owTiership was concealed ; 
 the persons who agreed to buy on the company's behalf received a secret bonus 
 of 15,000?. ; the directors were nominees of the promoters, and the prospectus 
 contained serious misrepresentations. Upon discovery of the facts, a bill was 
 filed by the company against the promoters, including the owners of the con- 
 cession, the members of a provisional committee, the solicitors, secretary, and 
 others, and a decree was made as above. The decree was aifinned on appeal. 
 See report in 5 C. Div. 394. 
 
 In the Neiv Sombrero Phosphate Co. v. Erlanger, 5 C. Div. 73 ; 3 App. Cas. 
 1218, the promoters sold a proi^erty to the company without disclosing the fact 
 that they were getting double what they had paid, and without disclosing the 
 real ownership ; the directors were nominees of the promoters, and the pro- 
 spectus contained misrepresentations. Upon discovering the facts a bill was 
 filed, and on appeal a decree was made as below mentioned. An appeal to the 
 House of Lords was dismissed with costs. 
 
 The decree of the Court of Appeal declared that the contract ought to be set 
 aside, and decreed the same ; declared that the defendants were liable to repay 
 the piu-chase money, and were liable for the shares issued in part payment ; 
 ordered them to pay the purchase money with interest ; gave liberty to prove 
 for amount against estates of bankrupt defendants ; directed inquiries as to
 
 390 
 
 JUDGMENTS AND OEDEES. 
 
 Form 319. Avliieh of the shares still belonged to defendants, and of proceeds of sale of 
 those sold ; directed a transfer of the former, and payment of such proceeds ; 
 gave liberty to prove against estates of bankrupt defendants for such proceeds ; 
 declared that company entitled to be paid the purchase money and said pro- 
 ceeds out of estate of deceased defendant ; declared defendants and estates of 
 bankrupt and deceased liable for costs of suit, and directed payment, &c. ; 
 directed account of profits, if any, made by company in working the island ; 
 ordered company upon payment of the purchase money, &c., to deliver iip 
 island, and pay over such profits, if any ; directed inquiries as to estate of 
 deceased defendant ; adjourned further consideration : dismissed bill with costs 
 as against D. & W. Seton, 1358, where the decree will be found more fully set 
 out. 
 
 Contract for 
 sale of mine 
 
 set aside. 
 
 Form 320. This action coming on for trial against the defts W. M. and M. on 
 the 25t]i and 2fitli April, 1882, &c., and counsel for the pits tliis day 
 also moving for jndgmt on the default of the defts S. and G. in deliver- 
 ing a defence and upon hearing the pleadings, &c., order that the 
 contract dated 2 April, 1879, in the pleadiugs mentd be set aside, and 
 declare that all shares received by any of the defts, other than the deft S., 
 as pt of the conson for the sale agreed upon by the sd contract which 
 have not been sold, but have been retained by them or any of them, or 
 by any persons in trust for them or any of them, ought to be surren- 
 dered to the CO, and order and adjudge the same accordingly. And 
 declare that the defts, other than the deft S., are jointly and severally 
 liable to pay to the jjlt co the amount of the pchase-money -pd by them 
 under the contract, together Avitli interest at the rate of 4 p. c. p. a. 
 fiom the date of the respive paynits, and also to pay to the pits the 
 nominal value of all shares which were allotted to the sd defts or any of 
 them under the sd contract, and which they have sold, together with 
 interest thereon at i p. c. ]x a. from the dates when such shares were 
 sold. And let an account be taken of what is due from the defts, other 
 than the deft S., to the pits, having regard to the afsd declons. And 
 order the defts W. M., G., and M., within one month after the date of the 
 chief clerk's certificate, to pay to the pit co what shall be certified to be 
 due to them on such account. And order them to pay to the pit co 
 their costs of this action to be taxed. And declare that pit co are entled 
 to a lien on aU the interest of the defts iu the i)pty, comprised iu such 
 contract for the princii)al moneys and interest payable under this 
 jndgmt and order, and for the costs of this action. Libty to pits to 
 apply to enforce such lien as they may be advised. Fhjmpion Miniufi 
 Co. V. WWcin^ and olhns. Kay, ,1., 27 April, 1882. B. 942. 
 
 In the above case a mine had been purchased from the liquidator of a com- 
 pany for 1,000L and resold shortly afterwards to a new comiDany, i^romoted by 
 the purchasers, for 4,500L, payable part in cash, and part in shares. Due dis- 
 closure was not made, and the directors Avere not independent. Kay, J., was 
 of opinion that the defendants, except S., the nominal jivirchaser, against whom 
 no relief was claimed, were promoters and partners in carrying out an inequit- 
 able, and, therefore, fraudulent scheme ; that the directors, who were mere 
 nominees of the defendants, had no opportunity of forming a separate judg- 
 ment as to the i^opriety of cr.rrying out the contract entered into by the defen-
 
 POEMS. 391 
 
 vlants ; that the defendants, as promoters, stood in a fiduciary position to the Form 320. 
 
 company ; that the increased price was exorbitant ; that the plaintiff company 
 
 was not disentitled on the ground of delay, because the knowledge of the trans- 
 action complained of was improperly kejit back ; and, accordingly, judgment as 
 above was entered. See W. N. 1882, 6G. 
 
 As to lien where contract rescinded, see Ahemman Ironv:orJ:s v. Wickens, 
 4 Ch. 101 ; Mycock v. Beatson, 13 C. D. 385. 
 
 See supra, pp. 239, 3(33. That a claim against a person iu a fiduciary position 
 may be lost if proceedings are not taken within six years of discovery, see 
 supra, p. 239. 
 
 Declare that the defts C. and G. are ]<:)intly and severally liable to Form 321. 
 pay to pit CO the 85,000?. in the pleadings mentd, together with interest 
 
 Judgment 
 at 4 p. 0. p. a. fi-om 2G Ap., 1873, till paymt. And declare that the against 
 
 deft K. is also liable to pay to the pit co 10,000?. (pt of the 85,000?.) P™moters to 
 
 with interest [«s al)Ove\. And declare that the deft J. N", is also liable profit. 
 
 to pay to the pit co 500?. (further pt, &c.), with interest, &c, from 
 
 9 July, 1873, till paymt. Declare that defts E. N. and J. X., as the 
 
 leg. per. reps, of W. S. N. deceased, if they shall admit assets of the sd 
 
 W. S. X. sufficient to answer the sd sum and interest hereinafter mentd, 
 
 are also liable to pay to the pit co 500?. (fiu-ther j^t, &c.) with 
 
 interest, &c., from 9 July, 1873, until paymt. And declare that the 
 
 liability of the sd several defts, C, &c., to pay the 85,000?. and interest 
 
 on the several proportions of sd sum and interest for Avhich they ai"a 
 
 hinbefore declared liable, or any pt or pts thereof respively, may be 
 
 discharged pro ianto by such defts respively transferring to the pit co 
 
 debentures of the pit co which the sd defts respively may have originally 
 
 received in respect of the sd 85,000?. or the pt or pts thereof which they 
 
 are hinbefore declared to be liable to pay respively, and accounting to 
 
 the pit CO for the interest which may have been received by such defts 
 
 resjiively on such debentm'es. And declare and adjudge that defts C. 
 
 and Gr. do jointly and severally on or before 25 July, 1877, pay to pit 
 
 CO sd smn of 85,000?. together with interest at -4 13. o. p. a. from 2G Ap., 
 
 1873, until paymt. (Jrder against E. as to the 10,000?. and against 
 
 J. X. as to the 500?. with interest. Order that defts E. X. and 
 
 J. X. as the leg. per. reps, of W. S. X. deceased, if they admit such 
 
 assets as afsd, do, on or before 25 July, 1877, pay to pit co the 500?. 
 
 (further pt, &c.) together Avith interest, etc., from 9 July, 1873, until 
 
 paymt. And in case defts E. X. and J. X. do not admit assets of the 
 
 estate of W. 8. X. sufficient for that ppose or for the ppose of the paymt 
 
 of the costs hereinafter dii'ected to be pd, let [usual account of personal 
 
 ostaie of W. S. N.']. And order C. G., &q., and the sd J. X. and E. X., 
 
 as such leg. per. reps, as afsd of the sd W. S. X. deceased, if they admit 
 
 assets of his estate to answer the sd costs, pay to the pit co the costs of 
 
 this suit up to and including this trial, and also the costs of the motion 
 
 for injunction of 21 Dec, 1875. To 1}e taxed. Libty to apply. 
 
 Bacjnall v. Carlton, Bacon, A'.-C, 25 Ap., 1877, A. 869.
 
 392 
 
 JUDGMENTS AND ORDEES. 
 
 Form 321. -^^^ ^^^ above case, tlie promoters, K. C. & G., formed the company and effected 
 
 a sale to it of a colliery belonging to B. and others. The promoters received 
 
 secret payments of large amoimt from the vendors. The prospectus contained 
 misrepresentations. Upon discovering the facts, the company sued the vendors, 
 the promoters, and the vendors' solicitors, who became solicitors to the com- 
 pany, praying rescission and repayment. Before the suit came to a hearing, it 
 was compromised as regards the vendors ujjon their paying 31,0001., and rescis- 
 sion was abandoned. At the hearing the promoters were held liable for the 
 secret profits they had made, and all the defendants were held liable for the 
 costs of the suit. On appeal, the decree Avas varied by allowing the promoters 
 certain deductions, and dismissing the bill with costs as against the solicitors. 
 See Form 199. See this report in 6 C. Div. 371. 
 
 Order on 
 appeal. 
 
 Upon inotion l^y way of appeal, &c., and it appearing by the e\ddeuce 
 that sums amounting to G,2507. were pd by the defts C, G., and E,., 
 some or one of them, in respect of charges and expenses connected with 
 tlie formation of the pit co, and the pits by their bill ha\dng submitted 
 to have deducted from the sum claimed by them fi'om the same defts 
 a reasonable sum by way of commission for their services in the forma- 
 tion of the CO, and also a reasonable sum in respect of the sd charges 
 and expenses, and the pits' counsel not objecting to amount of such 
 charges and expenses being fixed at G,250/. : And the Ct being of 
 opinion that 9,000/. is a reasonable amount to be allowed to same defts 
 for such conunission : And defts G. and E. not claiming any j)art of 
 sd commission nor any repaymt in respect of sd 6,250/. : And pits elect- 
 ing to take and the defts C, G., and R. respively, consenting that the 
 l)lts shall take several judgmts against the same defts for the sums 
 hereinafter mentd. Order, that judgmt of 25 Ap., 1877, be varied as 
 follows, namely. Deft. C, within fourteen days after service of order to 
 pay to pit CO 12,000/., with interest at 4 p. c. p. a. from 26 Ap. 1873. 
 And \_Wce order on R. for 1,0001. and on G. for 57,750/.] being the sd 
 sum of 85,000/., which by the sd order the sd defts C, G., and E., were 
 jointly and severally ordered to pay less, &c. And in case G. shall duly 
 and fully pay sd 57,750/. and interest, sd deft is to be at libty to 
 deduct therefrom 9,000/. in respect of such commission as afsd. But 
 [o])tmi to G. to have inquiry in chambers as to exjjenses of forminr/ co, 
 and if amovni found more or Jess than 6,250/., direction for j^nymt of 
 difference hj liim ar the co, as the case may I)e']. Defts not to l)e preju- 
 diced in respect of appeal by anything in the judgint. Variation of 
 order of V.-C. as to costs. Bar/nail v. Carlton, Ct. of App., 8 Aug., 1877, 
 A. 1742. 
 
 See also Emma Mining Co. v. Grant, M. E., 2G Feb. 1879, A. 921 ; 11 C. I). 
 941 ; 17 C. D. 122. 
 
 Form 322. .Miimte of judgmt : This Ct doth order aud adjudge that the deft 
 John Grove do, within one calendar month after service of this order, 
 pay to the pits, the Nant-y-Glo, &c., Co, the sum of 4,000/., being 80/. 
 per share on each of the 50 shares so transferred to him as in the plead- 
 ings mentd, together witli interest thereon at the rate of 4 p. c. p. a. 
 
 Director 
 ordered to 
 pay value 
 of share.s.
 
 FOBMS. 393 
 
 from 8 Sept., 1871, the date of such trausfer. Deft J. Grove to pay Form 322. 
 the costs of the action. Nant-y-Glo and Blaina Iron Works Co. v. Grove, 
 Bacon, Y.-C, March 19, 1878 ; Reg. Lib., 1878, B. 573. See Eeport, 
 12 C. D. 738, and supra, p. 363. 
 
 In this case the defendant G. became a director at the request of the pro- 
 moters, and he accepted from them a present of 50 fully paid-up shares of 100?. 
 each. It was admitted that at the time they were transferred to liim, or 
 shortly afterwards, they were worth SOL per share. They subsequently fell 
 to IL per share. The company claimed a declaration that Gr. was a trustee 
 for the company of the shares or of the value thereof ^ at the election of the 
 company, and judgment was given as above. 
 
 See also orders against directors under s. 1G5 of the Companies Act, 1SG2, 
 infra. Fonns G34, et acq. 
 
 Let the deft S. on or before the 15 Nov., 1870, pay to the pit co Form 323. 
 8,800Z., being- pt of the 10,000/. profits made by him on the sale of the p^^^^^. ^ ^■^' 
 South Durham Iron Works to the pit co as in the pleadings mentd : director 
 And declare that the sd deft be charged with interest upon the sd ""^^ ^''*^;^ ^^ ^ 
 10,000/. profit (or on so much thereof as he received from time to time) 
 at 5 p. c. p. a. during such tune as the sd deft received interest on the 
 sd sum or any pt thereof, and that the sd deft be charged with interest 
 on the sd 8,800/. at 4 p. c. p. a. from the date when he received the sd 
 sum of 10,000/. profit or any pt thereof until paymt : And let following 
 inquiry ))e made : — 
 
 1. An inquiry what (if any) sum or sums of money was or were 
 received by the sd deft from the co in respect of interest on the sd 
 10,000/. or any pt thereof : And let interest on the sd 8,800/. be 
 computed at 4 p. c. p. a. from the date of the receipt by the sd deft 
 of the sd sum of 10,000/. profit until paymt of the amount thereof to 
 be certified : And let the sd deft, within fourteen days after the date 
 of chief clerk's certificate, pay the amount thereby certified to be due to 
 the pit CO. 
 
 Deft 8. to pay to the pit co their costs of action, to be taxed, &c., and 
 to include the costs of the copies of the correspondence, minutes of 
 shareholders' and directors' meetings, short-hand notes of the witnesses' 
 depositions, and certain other documts supplied for the use of the judge : 
 And let H. and B. take all necessary steps and sign all necessary documts 
 for the ppose of procm-ing paymt out to the pit co of the sum of 200/. 
 
 deposited m their joint names in the Bank as security for costs 
 
 pursuant to the sd order, dated the 1 ilarch, 1879 \_infra, Form 
 348] : And any of the parties are to be at libty to apply. Soidh Durliam 
 Iron WorTcs Go. v. SMw, Hall, V.-C, 29 July, 1879. 
 
 In this case the defendant S. purchased tlie iron works, and resold them to 
 tlie company, of which he was a promoter and director, making a secret profit 
 of 10,000?.. He was lield liable as above. See W. N. 1879, 159. 
 
 Upon the applicon of S. and M,, the ofi". hqs., &c. Let the applicants Form 324. 
 as such oflp. liqs. be at libty to commence and prosecute an action in Libertyto take
 
 394. 
 
 JUDGMENTS AND ORDEES. 
 
 Form 324. the name of the above co, against the former directors of co, and against 
 the personal representatives of such former directors as may have died 
 since the order to mnd up, for and in respect of certain promotion 
 monies and qualification shares divided among them ; but the applicants 
 are to apply for the directions of the Judge as to the further conduct of 
 the action when and so soon as the deffcs have delivered their respive 
 statemtsjof defence. Anvcrgne Biiioninous Rock Co., Malins, V.-C, l.^> 
 Nov., 1879, A. 2117. 
 
 proceedings 
 against direc- 
 tors to recover 
 iwomotion 
 
 money. 
 
 Form 325. 
 
 Order not 
 to pi'oceed 
 against 
 promoters. 
 
 Upon the applicon of the oflP. liqs. Order that the sanction of the Ct 
 be accorded to the oflP. liqs. refraining from taking legal proceedings against 
 the promoters of the co, and the companies amalgamated : costs to be 
 costs in winding up. C(q)e Breton Co., Malins, Y.-C, 12 June, 187D, 
 A. 1288. 
 
 Form 326. Upon the applicon of the pits, &c. Let upon the deft Lord , L. 
 
 Comprcmiise P^J^^S' *^o ^- ^^^^ ofi". liq. of CO within fourteen days from the entry of 
 
 of action. this order, 1,000/. in satisfon and complete discharge of all clauns and 
 
 demands of the co in respect of the matters in question in this action, 
 
 and also in satisfon and complete dicharge of all claims by the sd oil". 
 
 liq. of the co, in respect of the sum of 1,000/. and taxed costs amounting 
 
 to ■ /., directed to be j)d by the sd deft pursuant to an order of ;>() 
 
 Xov., 1870, this action stand dismissed as against the sd deft without costs, 
 but without prejudice in any way to the rights or claims of the pit co 
 against the remaining defts and all other persons in respect of the 
 matters in question in this action. Lk'ooii Steam Tramways v. Grant, 
 Malins, V.-C, 20 June, 1878, B. 1200. 
 
 Form 327. 
 
 Injunction 
 restraining 
 forfeiture of 
 .shares. 
 
 Undertaking as to damages. Let an injunction Ijc awarded to restrain 
 deft CO, and the defts C, M., and J., the directors thereof, ft"om striking- 
 out or erasing the name of the pit from the register of the members of 
 the deft co, and fi'om selling, re-allotting, or otherwise disposing of the 
 pit's shares therein nmnbered, &c., inclusive, which, by a resolution of 
 
 the directors of the deft co of the day of , are purported to be 
 
 forfeited, or any of them, or othei'wise acting upon the afsd resolution 
 until judgmt in this action, or until further order. Goulton v. London, 
 ci-c, Co., Malins, V.-C, 7 June, 1877, A. 1180 ; Seton, 1650. See report 
 of case, W. N., 1880, 141. See also Johnson v. Lijttte's Iron Agency, 28 
 Mar. 1877, A. 09 1, 5 C. Div. 087, sin)ra, p. 121. 
 
 Form 328. 
 
 .Judgment 
 granting per- 
 petual injunc- 
 tion against 
 forfeiture. 
 
 Upon motion for judgmt, ^c, l)y cuunsel for the pit for such order 
 as upon the admissions of fact in the statemt of defence, he is entled to, 
 and upon hearing counsel for tlie defts, and u}ion the reading the plead- 
 ings in this action. Declare that the resolution of the board of directors 
 of the deft co of the 2(;th Feb., 1877, in the statemt of claims parly
 
 rOEMS. ;]95 
 
 meucd, which declares, or purports to declare the share of the pit in the Form 328. 
 sd CO to be forfeited, is invalid and void. And let a perpetual injunc- 
 tion be awarded against the deft co, restraining the sd co, and the directors 
 and officers and agents thereof, fi'om removing the name of the pit from 
 the register of members of the deft co, and fi-om selling; re-allotting, or 
 otherwise disposing of the sd shares which the sd resolution purports to 
 forfeit as afsd, or any of them, or otherwise acting upon the sd resolu- 
 tion ; Let deft co pay to pit his costs of the action, to be taxed, &c., in 
 case the parties differ : and the Ct not requiring any trial of this action 
 other than the sd motion. Libty to apply. Goidton v. London ArcM- 
 teciurcd Brick Co., and C. N. and J., 1877, G. 89 : Malins, Y.-C, 5 July, 
 1877, A. UU. 
 
 Upon motion for an injunction, &c. This Ct doth order and adjudge Form 329. 
 that a pei-petual injunction be awarded against the def ts, except the 7~. TT ~ ' 
 deft CO, and E. P. to restrain them from restraining or in any way inter- restrain exclu- 
 fering with the pit acting or attending as a director of the deft co : and ^^^^'^ ' "'^'^ ^^' 
 let the defts M. and S. pay to the pit his costs of this action, including 
 his costs of this motion, such costs to be taxed, &c. ; and let all farther 
 proceedings in this action, except for the ppose of carrjing out this 
 order, be stayed. FuIbrooJc v. Rklimond, &c., Co., and its directors, 
 M. Pt., 6 August, 1878, B. 1834. See 9 C. D. GIO. 
 
 It will be observed, that the company was not restrained, and accordingly the 
 plaintiff was subsequently removed from oflfice by a general meeting. See also 
 Munster x. Cammell Co., 21 C. Div. 183 ; Harben v. Phillips, 23 C. Div. 15. 
 Compare The Queen v. Government Stork Co., 3 Q. B. D., with Evans v. Hearts of 
 OaJc Society, 12 Jur. N. S. 163. 
 
 Usual undertaking. Let the defts, Elworthy Brothers & Co., Linitd Form 330. 
 and their secretary and agents, be restrained from holdinu', or allowing to „^^ 
 
 1 ,11, , , • n 1 , r- ", , ^ Order restraiu- 
 
 be held, the annual general meetmg oi the deit co on the day or m^ directors 
 
 ■ , and from summoning, or allowing to be summoned or held, any fiom holdmg 
 
 meeting of the deft co until after the day of , or until further improper 
 
 order. Cannon v. Trench-, Bacon, Y.-C, 29 July, 1875, A. 1440 ; Seton, r^i-wd. 
 2GG ; 20 Eq. CAV.). 
 
 Upon motion i'ur an injunction, &c.,by counsel for the pits, and upon Form 331. 
 
 the applicon of co, by Messrs. U., adjourned from Chambers, &c. Let _ . . 
 
 an injunction be awarded to restrain the deits until the hearing of the directors from 
 
 action, or further order, from entering or causing to be entered, or suffer- improperly re- 
 
 1-1 • ,1 11J. T I-, jectiug votes, 
 
 mg to remain entered m the minute book or books of proceedings of the 
 
 pit CO, or otherwise to be or remain recorded in any book of the sd co, 
 
 any entry that or to the effect that the amendmt in the indorsemt on the 
 
 writ of summons in this action mentd was carried, or that the second 
 
 resolution in the sd indorsemt mentd was not carried, and from acting 
 
 contrary to or in any manner inconsistent with the instructions contd
 
 396 JUDGMENTS AND OEDEES. 
 
 Form 331. iu this sd second resolution, until some other resolution to the contrary 
 shall be duly passed by a general meeting of the pit co : and order that 
 the defts, or any of them who shall, at the further or any other ad- 
 journmt of the meeting in the sd indorsemt mentd, or at any other 
 meeting of the pit co j)reside as chairman, be restrained in like manner 
 fL'oni disregarding or neglecting the votes of any duly registered member 
 of the sd CO otherwise duly qualified to vote on the ground that such 
 registered member is a trustee for or nominee of another member, and 
 generally, from rejecting the votes or any of the votes which any regis- 
 tered member is entled to give under the articles of association of the 
 pit CO : and let the sd applicon so adjourned from Chambers as afsd 
 stand over until the trial of the action or until further order. Pender \. 
 Liishingfon, M. E., -2 March, 1877, B. 357. 
 
 In tlie above action, the plaintiff sued " on behalf of liimself and all other 
 the shareholders of the Direct, &c., Co., -vvho voted against the amendment to 
 the first I'esolution, and in favour of the second resolution in the indorsement 
 on the writ of summons in this action respectively mentioned." The case is 
 i-eported in G C. D. 70. See also Harben v. Phillips, 23 C. Div. 15. 
 
 Form 332. Declare that the arrano'emt in the bill mentd come to between the 
 
 Amalgamation directors of CO and the directors of Bank, for an amalgamation of the 
 declared vjfm two COS on the terms in bill mentd was beyond the power of the direc- 
 restrained '^^'I's of the CO and was not authorised by the articles of association 
 thereof, and that such arrangemt is not binding on the pit nor on any 
 of the members of the co. Declare that the resolutions of 12 Ap., 18G5, 
 in the bill mentd, were not within the powers of a general or any other 
 meeting of co, aiul were not authorised by the memorandum or articles 
 of association of co, nor by the Companies Act, 18G2, and that the same 
 are not binding on the pit or on any other dissentient members of the sd 
 CO, and decree the same accordingly. Let an injunction be awarded to 
 resti-ain the deft co and the defts Gr. &c., the directors, and the deft E., 
 the oflp. liq. of co, and the deft Bank and B. &c., the directors thereof 
 from carrying the sd proposed arrangemt into effect. An injunction to 
 restrain off. liq. from handing over to Bank the assets of co or any pt 
 thereof in psuance of sd arrangemt or of any other arrangemt to the 
 same or similar effect. Declare that deft Bank are to stand as creditors 
 against the estate of the co in respect of any advances or paymts whicli 
 they have made in liquidon of any debts or liabilities of the co, and 
 to a lien upon all the assets of co comprised in schedules A., B., and C. 
 of the deed of covenant, dated, &c. in bill mentd for the amount of such 
 advances with interest on such of them as bear interest. Libty to 
 Bank to go in under the winding-up order of co, and prove for any 
 claim they can establish against the assets of co under sd last mentd 
 declon : [and declon omitted on appeal] taxation and paymt of costs. 
 Libty to apply. Cli7ich v. Financial Corporation, Wood, V.-C, SSFeb., 
 18G8, A. 649, 5 Eq. 450 ; 4 Ch. 11 7. 
 
 For some particulars of this case, sec infra, " Amalgamation."
 
 FOEMS. .307 
 
 Dcclavc tliat the sd agreemt, dated, cVc, is invalid, and the resolution Form 333. 
 
 for earryino- the same into effect iu the [bill] mentd arc vitrei vires and Sale of assets 
 
 illei'-al. Let the defts T. 8., &c. (the directors), repay to the deft A. 'icciared «?<r,, 
 n 7 \ /7 1 ^ vires and 
 
 the snm of /. pd to thein as iu the [bdl] mentd mider the sd restrained. 
 
 agrcemt, Ixit without interest. And let an injunction be aAvarded to 
 restrain the deftco, T. S., <tc.. from carrying the sd agreemt, dated, &c., 
 into effect, and to restrain the defts from assigning the patent, ppty, and 
 assets of the co (as in the bill mentd), or any of them, to the deft A., or 
 to any other person on his behalf. Defts T. S., &c., to pay pit his costs 
 of suit, to be taxed, &c. Bird y. BircVs Patent Deodorising, &c., Co., 
 Bacon, V.-C, 28 Jan., 1874, A. 2i>2 ; affirmed, 7 Mar., 1874, A. (;21. 
 See n Ch. ,3r)8 ; Seton, 200. 
 
 I)e(;lare that it is idtra vires of the defts. the Arfjentine Trcmuccnjs Form 334. 
 Co, Linitd, to issue new preferred shares to rank in priority to or erjually orjer issue of 
 with the orignal preferred shares of the co either in exchange for de- preference 
 ferred shares or otherwise. Let an injunction be awarded against the restrained, 
 defts. Lord A. P., &c., the directors of the sd co, to restrain the defts 
 from issuing any such new preferred shares in the co, either in exchange 
 for deferred shares or otherwise. And let the defts pay to the pit his 
 costs of this action, including therein his costs of the sd motion, such 
 costs to be taxed l)y the taxing-master. Harper v. Parjct, iL R., 1 G iMar,, 
 187G, A. r)9t). 
 
 See as to this case^, supra, p. 197 ; and for further proceedings of the company, 
 see GrlSith v. Parjet, 5 C. D. 891- ; G C. D. 511. 
 
 Declare that the pits respiA'ely and the other holders of preference stock Form 335. 
 in the co on whose l)ehalf they respively sue, are entled to be pd di\idends jtights^f 
 out of the profits realised by the co on the preference stock held by them preference 
 respively, from .30 June, 185C, according to the amount of the dividends declared and 
 which the several classes of preference stock respively carry, before any infringements 
 paymt in respect of dividends or otherwise is made to any of the holders 
 of original ordinary stock, A stock, and B stock, in the sd co, or any of 
 such stocks out of such profits. And let a perpetual injunction be awarded 
 to restrain the deft co from declaring any dividend on the original ordi- 
 nary stock, A stock, and B stock, in the sd co, or any of stich stocks or 
 any pt thereof respively, without regard to the rights of the pits re- 
 spively, and the other holders of preference stock on whose behalf they 
 respively sue, to be paid in prioiity the fidl amouiit of the dividends 
 payable upon or in respect of the preference stock held Iiy them respively, 
 to be computed from 30 .June, IS.jG.and from making, or causing to be 
 made, any paymt for dividend or otherwise to any of the holders of the 
 original ordinary stock, A stock, and B stock, in the sd co, or any of 
 such stocks without first paying or providing for the paymt to the pits 
 respively, and those on v\hose behalf they sue, of the full amount of the 
 ■dividends payalile upon or in respect of the preference stock held l)y
 
 398 
 
 JUDGMENTS AND OEDEES. 
 
 Form 335, tliem respively, to be computed from 30 June', 185G. Henry v. Grmi 
 Northern Ry. Co., Wood, V.-C, 24 Aug., 1857, A. 1602. Affirmed on 
 appeal. 
 
 As to preference shares, see su-pra, pp. 181, 195. 
 
 Form 336. Upon motion, &c., for the pits, &c., let an injunction lie awarded 
 to restrain the defts, the directors of deft co, from paying interest 
 upon any amounts pd up upon any of the shares in the sd co, or any 
 money by way of interest or dividend upon or in respect of any such 
 shares until the sd co has received profits legall}' ap2>licable to the 
 I)aymt of such interest or dividends until the hearing or further order. 
 MacdovgaU v. Jersey, dr., Co., Wood, Y.-C, 25 July, 1864, B. 2045. 
 See sui>ra, p. IGO. 
 
 Payment of 
 dividend out 
 of capital 
 restrained. 
 
 Form 337. 
 
 Payment of 
 dividends out 
 of capital. 
 
 Upon motion, &c., by counsel for the pit, and upon hearing counsel 
 for the defts, and upon reading the writ, &c., and [iisual inideriaking'] : 
 Let an injunction be awarded to restrain the defts G., &c., [the directors'] 
 and the deft co, until judgmt in this action, or until further order, 
 from making any paymt by Avay of dividends on the ordinary shares 
 of the deft co. And defts to be at libty to apply to dissolve the sd 
 injunction as they may be advised. Davison v. Gillies, M. E., 14 Mar.. 
 1879, A. 1118. 
 
 See supra, p. 168, and Form 365, infra. 
 
 In the above case, the plaintiff sned on behalf of himself and all other the 
 shareholders of the London Tramways Co., Limited. See a note of the ease in 
 16 C. D. 347. 
 
 Form 338. Upon motion, &c. Let an injunction be awarded to restrain the 
 Order restrain- deft society, H., &c. [the directors'], fi'om carrying into effect the resolu- 
 mg company f^f^j^ meutd In the statemt of claim for purchasing with money belong- 
 
 Irom purclitis- j. o •/ o 
 
 ing its own big to the deft society any shares of the deft society, or fi-om purchasing 
 share?. q^. taking any steps for purchasing any such shares with money belong- 
 
 ing to the defc society, until the hearing of this cause or until further 
 order. JIojm v. Internationcd Financial Society, Bacon, V.-C, 1) Nov., 
 1876, A. 1820. Sec report of this case in 4 C. Div. 327. 
 
 Directors 
 ordered to 
 make good 
 breach of 
 trust. 
 
 Form 339. Declare that the applicon of the sums in the ))ills mentd, namely, 
 2,000?., 1,733^. lis. od., and 5/. 8s. 9d, amounting to 3,739/., in the 
 pchase of shares of the sd co constituted a l)reach of trust and 
 misapplication of the monies of the sd co, and that the defts, Lord F. \_and' 
 others], are jointly and severally lial)le to make good and repay to the- 
 sd CO such simis of 2,000?. and 1,733?. lis. Sd., and that the deft Finch 
 is separately and also jointly with the other defts liable to make good 
 and repay to the sd co the sd sum of 2,000/., and that deft Finch 
 is also separately liable to make good and repay sd sum of 5/. Ss. 9d. to 
 sd CO. And order that sd Lord F., &c,, do on or before 30 June
 
 FOEMS. 399 
 
 next pay sd several sums for which they arc respively jointly and Form 339. 
 
 severally liable as afsd, and interest thereon at the rate of 4 p. c. 
 
 ]). a. fi'om the date of this decree up to the time of paymt to the sd 
 
 CO accordingly. Defts to pay pit's costs of suit. Land Credit Co. \. 
 
 Lord Fermoy. Romilly, M. R., 24 Mar., 1869, B. 1232. See the repoit 
 
 8 Eq. 7 ; "> Ch. 703. The decree was varied as to one of the directors on 
 
 appeal. 
 
 Directors are responsible for loss resulting fx'om an improper application 
 of the assets of the company. See Forms 63 i, ct seq. But they are not 
 liable if acting witliin the limits of their authority, and in good faith, for loss 
 resulting from an error of judgment, Turqvand v. Marshall, i Ch. 376 ; 
 Overend, Gurney 4" Go. v. Gibh, L. K. 5 H. L. 480. See further Lindley, 594 ; 
 Buckley, 404. As to the liability of directors inter se in respect of breach of 
 trust, and their rights in regard to contribution, see Ashurst v. Mason, 20 Eq. 
 225. Seton, 1184. 
 
 As to how far directors trustees, see Wilson v. Lord Bury, 5 Q. B. Div. 519; 
 In re British Seamless Co., 17 C. Div. 471 ; Russell v. Wakefield WateruorJcs Co., 
 20 Eq. 473, and cases, sujira, p. 168. 
 
 Dismiss the Ijill as against the deft Gr., without costs. Declare chat Form 340. 
 the directors of the pit co had no power or authority to take or accept Another^ " 
 the 3,000 and the 500 shares in Barned's Banking Co. in the pleadings 
 mentd on l)ehalf of the pit co, or to give to the defts "W., H., M., H., 
 H., and W., and the late deft ^Y., or any of them, such or any of 
 such letters of guarantee or indemnity in respect of the afsd shares, or 
 any of them, as are in the pleadings mentd. 
 
 Declare that the pit co is not under any liability upon the afsd 
 letters of guarantee or indemnity, or by reason of the undertakings 
 contd therein respively. Declare that the appropriation and paymt 
 out of the funds of the pit co of the three several sums of 10,000/.. 
 5,000/., and 1 5,000/. (specifying the dates), in respect of the afsd shares, 
 was a Ijreach of trust ; and that the defts B., H., etc., and the late defts 
 D. the younger, and White, and R., now a banki'upt, became jointly and 
 severally liable to make good such l)reach of trust by refunding to the 
 jAt co the total amount of the afsd principal monies respively, with 
 interest thereon respively at the rate of 4 p. c. p. a. Declare that the 
 defts B., &c., and the several estates of the deceased defts, D. the 
 younger and White, and the estate in bankruptcy of R., are jointly and 
 severally liable to refund to the pit co the sd amount of principal and 
 interest, and the costs of the suit ; but as to the estates of the deceased 
 defts. Dent the younger, and White, only in a just course of administra- 
 tion ; and as to the estate of the bankrupt R., only by way of proof 
 
 under his banki'uptcy. Order on defts B., &c., for paymt of /, 
 
 (being the computed amount of principal and interest, less the sum of 
 875/., being the amount which, by the pleadings, appears to have been 
 carried in the books of the co on the 27th Feb. and 1st Mar., 186G, to 
 the credit of interest on the creditor investmt account, as having arisen 
 from dividends on the afsd shares) to the off", liq. within fourteen days
 
 J 00 JUDGMENTS AND OEDEES. 
 
 Form 340. after service of the decree, and of the sd sum of SlbJ. into Ct to tlie 
 credit of the cause, "Tlie Share Account." Libty to apply as to such 
 fund. Defts B., &c., to pay pits' costs. Leave to pits to apply in the 
 administrations and bankruptcy. Libty to apply. Joinf Stoch Discount 
 Co. V. Brown, James, Y.-C, 5 July, 1860, 8 Eq. f,76. 
 
 Eectific'Ation of Register of Members. 
 
 The jurisdiction is conferred by s. 35 of the Act of 1SG2, and is exerciseahle 
 in two cases : — 
 
 1. When the name of a person is without sufficient cause entered in or 
 omitted from the register. 
 
 2. Where default is made, or unnecessary delay takes place, in entering in 
 the register the fact of any person having ceased to he a member of the 
 company. 
 
 The following are some of the cases in which orders have been made : — 
 
 1. Where the applicant was induced to take the shares by misrepresentation 
 in the prospectus. Stewart's case, 1 Ch. 574 ; Smith's case, 2 Ch. 604-. See also 
 Ex parte Kintrea, 5 Ch. 95 ; Re London arid Staffordshire Co., 24 C. D. 149 ; 
 Anderson's case, 17 C. D. 373. 
 
 2. Where the company improperly neglected, or refused to register, a 
 transfer. Stranton Iron Worlcs, 16 Eq. 559. 
 
 3. Where shares had been issued under a contract to issue fully paid-up 
 shares, and the contract had not been filed. See supra, p. 14, and Forms 343 
 and 344, infra. 
 
 Where shares have been improperly forfeited. See Form 342. 
 5. Where a transfer in favoiu- of a niortgagee had been registered by mistake. 
 See Pulbrookv. Richmond Co., 9 C. D. GIG. 
 
 6. Where the company, acting on a forged transfer, removed a name. 
 jJahia and San Francisco Railway Co., L. E. 3 Q. B. 584. 
 
 7. Where there was a dispute between a vendor and purchaser of shares. 
 Ex parte Shaiu, 2 Q. B. Div. 463. 
 
 There is a difference of ojiinion as to the extent of the jurisdiction conferred 
 by s. 35. See Ex imrte Sargent, 17 Eq. 273 ; and Ex parte Shaw, %i.hl supra. 
 But there is no doubt that the exercise of the jurisdiction is discretionary, at 
 any rate to some extent. Ward and Henry's case, 2 Ch. 431; Askcw's case 
 9 Ch. 664; Ste%vart's case, 1 Ch. 575. 
 
 However, as between a member and the company, the Court will not readily 
 decline to act under the section. Ex parte Parser, 2 Ch. 685 ; Ex parte Denny, 
 8 Ch. 446 ; Stranton Iron Co., 16 Eq. 559. 
 
 Whether in any particular case it is desiraltle to apply under this section, or 
 to bring an action, must depend on the circumstances. In a simple case, where 
 an immediate rectification is essential, it may be desirable to apply under the 
 section ; but if the case is at all complicated, and a little delay will not much 
 matter, an action is preferable. 
 
 Under the present practice, a question can be tried in a much more satisfactory 
 manner in an action than upon a motion or summons. 
 
 An application vmder s. 35 should be intituled in the matter of the Act of 
 1862, and of the company. 
 
 The register should be rectified in the case of a removal, by striking through 
 the name with pen and ink, and adding, " By order of the High Court of 
 Justice, dated, &c., this name has been erased." Iron Shiphuilding Co., 
 31. Beav. 597. 
 
 Form 341. Upon motion, &c., for L., itc, let the register of shareholders of the 
 Usual ord r ^^ ^^ rectified by striking out tlic name of the sd li. as a shareholder 
 
 to rectify.
 
 FOEMS. .XOl 
 
 of the CO, and let tlie co pay to the scl L. his costs of this appHcon, Form 341. 
 
 to be taxed by the taxing master : And let notice of this order be 
 
 given to the registrar of Joint Stock Cos by serving a copy of this 
 
 order n])on the sd registrar or leaving the same with a clerk at the 
 
 office of the sd registrar, and at the same time producing this order, 
 
 duly passed and entered. Bnjn AJijii, &c., Co., M. R., 2b Jan., 1878, 
 
 A. 18G. 
 
 Upon the applicon of II. 11. E. and S., shareholders of co, which, &c. Form 342. 
 \_(ulJournmt into (Y], and upon hearing, &c., and reading, &c., let the j^gp^jj^^j^tjon 
 register of members of sd co be rectified by inserting the names of the ^^'lere invalid 
 applicants as shareholders in the sd co for the number of shares and with 
 the several amounts pd up thereon specified in the schedule hto, such 
 shares having been wrongfully dealt with by the sd co as having been 
 forfeited : and let co pay to the applicants the costs of the applicon, and 
 consequent thereon, to be taxed, &c., and let notice of this order be 
 given to the registrar of Joint Stock Cos. 
 
 The Schedule above referred to. 
 
 1. R., as the holder of twenty shares, eight of which are fully pd up 
 
 and the remaining twelve of which, numbered to inclusive, 
 
 are pd up to the extent of 17s. C>d. per share. 
 
 2. H. as the holder of five shares, numbered, &c., pd up to the extent 
 of \s. C,d. per share. 
 
 3. E. as, &c. 4. S. as. &c. 
 
 Hexham Mining Co., Hall, Y.-C, -t March, 187G, A. 024. 
 
 Upon the applicon of W., &c., and the co by their secretary consent- striking out 
 ing : Let the sd register of members be rectified Ijy striking out or ^'^'"^ °* ™''^"^" 
 otherwise cancelling the entry therein of the name of the sd W. as the 
 
 holder of the sd GOO shares numbered as mortgagee of such shares 
 
 or otherwise. And notice to registrar. London Pianoforte Co., ]\Iulins, 
 V.-C, 27 June, 1877, B. 124;). 
 
 Upon motion for T. B. [cunl others^, let the register of members of Form 343. 
 CO be rectified by striking out the names of the sd T. B., &c., as holders wiiere contract 
 of the following shares of class B in the sd co, that is to say, the sd T. B. "°* *^'*^'^- 
 in respect of 88 B shares, numbered, &c., &c. And order that the 
 agi-eemt of 14 Ap., 1871, under which the sd B shares Avere issued, be 
 filed with the registrar of Joint Stock Cos, and that upon or after such 
 agreemt shall have been filed the sd co do allot or issue to the sd T. B., &c., 
 shares of the class B fully pd up of the same number and value as they 
 now respively hold as afsd in exchange for the certificates of the like 
 shares now held by him. And co to pay to appHcants their costs of this 
 applicon, to be taxed, &c., in case the parties differ. And notice of 
 order to be given to registrar of Joint Stock Cos. Aherdare, RJiondJla, 
 A:c., Co., MaUns, V.-C, 27 May, 1875, A. 849. See siqmt, p. 14. 
 
 D D
 
 40^ 
 
 JUDGMENTS AND OEDEES. 
 
 Form 344. Upon motion, &c., for J\I., of , and AV., the trustee in liquidation 
 
 Another. of M., &c. \_Rectifi/ing register hij cancelling M.'s mmie']. And let an 
 
 agreenit be forthwith drawn w.\) and executed, embodying the agi'eemfc 
 in relation to the pchase of the business of sd IVI. contd in the original 
 resolutions, dated 31 Oct., 1872, in accordance with Avhich the sd co 
 was formed ; and let the agreenit when so executed be forthwith filed 
 with the registrar of Joiiit Stock Cos, and let new [.s/p] shares of the 
 sd CO be then forthwith issued in the name of the sd i\I. l)y the sd co in 
 psuance of the sd agreemt, and delivered [s/c] to the sd W. Give 
 notice to registrar, No order as to costs. Union Maniifachmng Co., 
 M. E., 1!) June, 1878, B. 1280. See siqmi, p. 15. 
 
 For order to rectify register, notice to be given to i-egistrar, company to pay 
 costs of application, inquiry to be made what damages the applicant has in- 
 curred by reason of his name having been put upon such register beyond the 
 costs before directed to be taxed ; company to pay to applicant what shall be 
 certified to be due in respect of such damages, see IVeiy Quebrada Co., Pontifex's 
 case, 15 W. E. 955 ; Pemberton, 059. 
 
 Form 345. Upon motion by counsel for the pits, &c., let an injunction be awarded 
 
 Order restrain- ^^ I'estrain the deft K. and his agents from p)rcsenting any petition 
 
 ing presenta- under the Cos Acts, 18G2 and 1807, to wind up the pit co or taking any 
 
 ii\rpe\ltionr°' ^^^^^^' pi'oceedings to obtain a Avinding-up order thereof until the trial of 
 
 this action or until further order. JoJui Brown J; Co., Limtd. v. Keehle, 
 
 Malins, V.-G., 13 Nov., 1871), A. 2119 : Circle Resiaurant v. Laveng, 
 
 18 G. D. 557. 
 
 If a creditor of a company, whose debt is hand fide disputed, attempts to 
 enforce payment by threatening to present a winding-up petition, he will be 
 restrained at the suit of the company, as in the above case. See also Cadiz 
 Waterworks Co. v. Barnett, 19 Eq. 182 ; Niger Merchants v. Copjier (M. E.), 25 
 W. E. 365. In the case last naentioned, the writ was indorsed with a claim 
 " For an account of the defendant's transactions as agent of the plaintiil com- 
 pany under an agreement dated, &c., and for an injiinction to restrain the 
 defendant from presenting a winding-up petition." 
 
 Where a petition has already been presented to the High Court by the credi- 
 tor, there is no jurisdiction now to restrain. S. 24 (5) of the Judi. Act, 1873. 
 But application can under that section be made in the winding up by motion to 
 dismiss the petition. Re Gold Hill, 23 C. Div. 210. Compare In re Sewell, 28 
 W. E. 286. Not only can proceedings here be restrained, but proceedings 
 abroad, as in the following order : 
 
 Form 346. Upon motion, &c. : Let the defts Lord Monson [and others'] be re- 
 Order restrain- strained from taking, prosecuting, or proceeding with any proceedings 
 ing bankruptcy j^Q^y pending iu France for the ppose of making or declaring the pit co 
 against com- bankrupt, or any other action, suit, or proceeding in France or else- 
 pany in where, to make the co bankrupt or to have it declared judicially in- 
 
 solvent, and from taking proceedings to recover any judgmt agaiusfc the 
 pit co or from taking any other proceedings whatever against the ])lt co 
 in respect of the debts claimed against the sd co in respect of which the 
 sum of 7,720/., has been pd into Gt as mentd in the afft filed in su]iport 
 of the applicon on which the sd order of 19 June, 1877, was made, until
 
 FOEMS. 
 
 403 
 
 Friday, 22 Juuc, 1S77. Residue of motion to stand over till 2H June, Form 346. 
 1S77. Paris Skaiiufj Rink Co. v. Lord Jlonson, Bacon, Y.-C, 21 June, 
 1877, B. 1110. 
 
 The order of 19 June was an interim injunction to the like effect over 
 Friday, 22 June, the plaintiffs paying money into Court, " And this order 
 being urgent is to be acted on without being printed." Bacon, V.-C, 19 June, 
 1877, B. 1073. 
 
 Upon motion by way of appeal, &c., order that tlie pits, the co, Form 347. 
 
 do procure some sufficient person on their behalf to give security accord- Z^, \ 
 ing to the course of the Ct by bond [to the Clerk of Records and AYrits] plaintirt' com- 
 in the i^enalty of 150/., conditioned to answer costs in case any costs P'"^"-^' .*" ^'^^® 
 
 SGcuntv* 
 
 shall be awarded to be pd by the pits, and in the meantime the pits are 
 not as against the defts to take any further proceedings in this action. 
 And pits to pay defts' costs of and occasioned by this motion, to be 
 taxed, &c. And costs of applicon in Ct below to be costs in the action. 
 And deft co to be at liberty to apply hereafter for further security, as 
 deft CO may be advised. Nortliamjiion Coal, (|-c., Co. v. Midland Wagon 
 Co., Ct of Appeal, IG Jan., 1878, B. 78. See the report, 7 C. Div. 500. 
 
 Where a limited company is plaintiff in any action or other legal proceedino-, 
 it may, if it appears by any credible testimony that there is reason to believe 
 that if the defendant is successful the assets of the comjiany will be insufficient 
 to pay his costs, be required to give security for costs. S. 69 of the Act of 
 1862. For cases in this section see Moscoiu Gas Co. v. International Financial 
 Soc, 7 Ch. 225 ; Freehold Land Co. v. Spargo, W. N. 1868, 9i ; Lydney Co. v. 
 Bird, 2.3 C. D. 358 ; and Forms, iti/ra. 
 
 In the above case the plaintiff' company was in voluntary liquidation, and 
 Jessel, M. E., in the Court of Appeal, was of opinion that the fact afforded 
 prima facie evidence that the assets would be insufficient. See Eules of 1883, 
 981, 982. 
 
 In Re Photographic Co., 23 C. Div., a company appealing from a winding-up 
 order was required to give security for costs. 
 
 Upon the applicon of the deft, &c. By consent, order that the pits Form 348. 
 do, on or before 24 Mar., 1879, pay into the Union Bank of London, AiK)tiier. 
 Chancery Lane Branch, in the joint names of K. and B. [^soJors of iM p.^,^^ ^^ j^g 
 and deff] the sum of 200/., as security for the costs of the deft in this paiJ into a 
 action in case any should be awarded to him. And order that in default *'^"^' 
 of the pits making such paymt within the time afsd this action do stand 
 dismissed out of this Ct without further order, with costs to be taxed l)y 
 the taxing-master and pd by the pits to the deft S. And costs of 
 applicon to be costs in action. South Durham Co. v. Shaw, Hall, V.-C, 
 1 Mar., 1879, B. 374. 
 
 Debexture AcTIOxVS. 
 
 " Upon motion for judgmt, &c., and upon hearing counsel for the Form 349. 
 defts, and upon reading the pit's statemt of claim and a deed of cove- Declaration. 
 
 D D 2
 
 404 
 
 JUDGMENTS AND OEDERS. 
 
 Form 349. nant, dated, &c. Declare that the pit and the other holders of mtge 
 Accounts. debeutui'es of the above-named co issued under and in psuance of the sd 
 Sale. deed, are entled to a charge on all the real and personal ppty of the co, for 
 
 securing the repaymt of the principal monies and interest in the sd nitge 
 debentures mentd. And let the following account lie taken, namely, an 
 account of what is due to the pit and the other holders of mtge deben- 
 tures of the CO on the security of the sd debentures and the sd deed. 
 And let the real and personal ppty comprised in the sd deed and the 
 business of the co lie sold as a going concern with the approbation of 
 the judge. And let the money to arise by such sale be pd into bank 
 to the credit of this action of Ferry, tj-c, 187G, P. 18!). And receiver and 
 injunction continued, and [furl/icr consideration adjoitrncd^." Perry \on 
 hehalf, rCr.] v. Ghdton Coal Co., Limid and others \_Uie trustees'], Mahns, 
 V.-C, July 7, 187C, B. 1231. 
 
 In this case it will be observed that the debentures affected the whole pro- 
 perty. See supra, p. 258, and Forms 562, 5G3, infra. 
 
 Form 350. 
 
 Order for 
 accounts and 
 inquiries. 
 
 "Upon motion, &c., for the pits, and upon hearing counsel for the 
 defts, and upon reading the pits' statemt of claim, and the statemt of 
 defence, and an order dated the 29th August, 1876 [/or receiver and 
 manager lij consenf]. Let the following accounts and incpiiries be taken 
 and made, that is to say : 
 
 1. An account of what is due for principal and interest to the pits, and 
 
 the other holders of debentures issued l)y the deft co, distinguish- 
 ing the holders of the A and B debentures in the pleadings re- 
 ferred to. 
 
 2. An incpiiry of what the ppty comprised in and charged by the A 
 
 and B del)entures, respively, consists, and in whom the same is 
 vested. 
 
 3. An inquiry what steps ought to be taken for getting in such pts 
 
 (if any) of the sd jipty as may be outstanding. 
 
 4. An inquiry in what way the ppty comprised in or charged Ity the 
 
 sd respive securities can best l)e realised for the ])enefit of the 
 pits and the other debenture holders, and whether a sale or 
 mtge, or sales or mtges, of any and what portions of the same is 
 or are necessary or desirable for that ppose. 
 
 5. An inquiry whether any and what contracts have been entered 
 
 into, and what steps ought to l)e taken in respect thereof. 
 
 ''And receiver and manager continued. 
 
 " And further hearing adjourned without requiring the action to be 
 brought on for trial. 
 
 " And any of the parties, including the holders of any of the sd 
 debentures issued by the deft co, are to be at liberty to apply to the 
 Ct or to the judge as they may be advised." Dawson v. Owen, IMalins, 
 V.-C, 11 Nov., 187(;, A. 1778.
 
 FOEMS. 405 
 
 Upon motion for jiulgmt this day made l)y conuscl for pit, and Form 351. 
 upon hearing counsel for pit and for off. liq., and u\)on reading writ of jutirrment 
 summons, dated, &c., and the judge giving the sd off. liq. leave to defend where some 
 this action in the name of co, order and adjudge the following inquiries non-re"istra- 
 and accounts : — ■ tion, official 
 
 1. An inquiry what nitge del)entures have been issued by the deft co, appointed 
 and to whom and for what conson, and when the same rcspively were receiver with- 
 
 1 out furtlicr 
 
 ISSSUeiL security. 
 
 'J. An inquiry wliicli of sd delicntures are still unpaid or subsisting, 
 and who are the present holders of the same respively. 
 
 y. An inquiry whether as to any and which of such debentures as are 
 still unpaid, the parlars required by s. 4;-) of the Cos Act, 1.SG2, were not 
 duly entered in the co's register of mtges as required by the sd Act, and 
 if so, then as to such of sd del)entures the parlars as to which were not 
 so entered, whether the holders thereof held, or at any time and when 
 held, any and what office as a director, manager, or other officer of co. 
 
 4. An account of the principal monies and interest secured by and due 
 under or in respect of the said mtge debentures respively, and to whom 
 the same are respively due. 
 
 5. An inquiry what was at the date of the winding up of co, and what 
 ppty is now, comprised in such debentures, and whether the same is now 
 subject to any and what interest having priority over the sd debentures. 
 
 Order that A. B., the off, li(p of deft co, without gi\dng further 
 security (he ha^'ing given security as off, liq.), be appointed receiver on 
 behalf of the pit and all other the sd debenture holders of all the p})ty of 
 CO comprised in sd debentures. Usual directions. Liability to apply. 
 Restall [_o)i l)i'halj"\ v. Citij of Lomluii Co-ojvndirf Assori'ifioii Limfd, 
 Hall, y.-C, 7 May, 1881, B. 1:353. 
 
 It is by no means uncommon to find that s. 4.3 [^swpra, p. 262] has not been 
 duly observed. Where there is an official liquidator who has given adequate 
 security, he is usually appointed receiver without further security. 
 
 Upon motion for judgmt, &c., declare that the i)lt and the other Form 352. 
 holders of the mtge debentures of the 1st scries issued by the deft co. Declaration. 
 are entled to a first charge upon the undertaking, monies, and ppty of A and V> 
 the deft co : and declare that the holders of the mtge debeutm-es of the "^^ "^" "^^'^ 
 2nd series issued by the deft co are entled to a second charge upon the 
 undertaking, monies, and ppty of the deft co. Let an account be taken 
 of what is due from the deft co to the holders of the sd del^entures of the 
 1st and 2nd series respively, for principal and interest on their respive 
 debentures. And let the undertaking, ppty, and effects of the deft co 
 be sold, with the approbation of the judge, and let the proceeds of sale 
 be pd into Ct to the credit of Barry, &c. And receivers and managers 
 
 be continued until further order ; and order that Messrs. & , 
 
 and any other members of the committee of the debenture holders of the 
 
 1st series, and JMessrs. & , or any other mem])crs of the com- 
 
 n.ittce of the debenture holders of the 2ud series, be at liberty to attend
 
 406 JUDGMENTS AND ORDEES. 
 
 Form 352. the proceedings in these actions (tlieir costs as l^etween solor and ch'ent, 
 as from the dates of their respive appointmts, heing costs in tliese 
 actions), and that the sd S. S. and P. debenture holders of the 1st series 
 be at Hbty to attend the proceedings at their own expense : and order 
 that the first al)ove-mentd action be dismissed as against the defendant 
 Bower with costs, to be taxed as hereinafter mentd ; and order that the 
 costs of the respive pits and of the above-mentd respive committees of 
 Foreign pro- debentarc holders, and of the sd deft Bower, up to and including 
 perty sale. judgmt, be taxed by the taxing master as between solor and client, and 
 the taxing-master is to include in such taxation the costs of the said 
 S. S. and P. of the motion upon which the order of 20 Ap., 1877, was 
 made : and declare that all the afsd costs are payable out of the proceeds 
 of the afsd sale ; but no pt of the difference between party and party 
 costs and solor and client costs is to be pd out of the surplus monies (if 
 any) which would otherwise be payable to the deft co out of the pro- 
 ceeds of such sale. Adjourn farther conson. Libty to apply. Barri/ 
 [o;i hehalf, tfcc] v. Sao Pedro Brazil Gas Co., and Upward, cDr., v. tSamc 
 Co., M. K, 20 Ap., 1877, A. 855. 
 
 In this case the property consisted almost entirely of land, with gasworks 
 thereon, situate in South America. There was no trust deed ; the debentures 
 were to bearer, and purported to charge the undertaking, monies, and property 
 of the company. See supra, pp. 256, 258. See also Forms 241 et seq., and 267, 
 supra. 
 
 For order of M. K., declaring that debentures formed a first charge on the 
 whole of the real and personal property and undertaking of the company, 
 except uncalled capital, directing inquiries, appointing receiver, and ordering 
 sale, see Bower v. Foreign and Colonial Gas Co., 13 Nov., 1877, A. 2064. Case 
 reported in W. N. 1877, 222. So, too, in Statham v. London and Jagersfontein 
 Mining Co., Chitty, J., declared the debentiires [no trust deed] a first charge 
 on the company's mines [situate in South Africa] and other property. 28 July, 
 1883. 
 
 Form 363. Trusts of deed to be carried into execution. Appoint E. recei^'er of 
 Z~. TTT . ppty in MauiUa. Libty to expend not exceeding 400/. in preserving- 
 sell, liberty ppty : Order that if necessary a proper instrumt be executed ))y AV., the 
 to debenture jj^ ^^ ^^ ^q ^^ j)_ f^^. q^^ above pposes, to be settled by judge, pass 
 accounts, &c. Order the ppty of co at Manilla, and all other the real 
 and personal ppty of co respively comprised in the first and second 
 deljentures, to be sold with apjiroval of judge. AV. to have conduct of 
 such sale, with libty to the pits and all other delienturc holders and 
 other parties to the action to bid at sd sale. Order that the money to 
 arise from the sale be pd to sd W., and that he do, within fourteen days 
 after receipt thereof, pay same (tlic amount and date of receipt to be 
 verified by afft) into Ct to credit of action, " Proceeds of sale of mtged 
 ppty." Tax costs of pits and defts as between pty and pty, and as 
 between solor and client, and tax the costs of sd liq of and incidental to 
 sd sale to the completion thereof. Account of what due to first dcl»en- 
 ture holders and same as to second debenture holders. Adjourn further 
 conson. Libty to apply. Smith, Ward, & Co. (on behalf of themselves 
 and all other the first mtge debenture holders of Eastern Sugar Co.,
 
 FOEMS. 407 
 
 Limtd), pits and Ihe co, and M. tt- Co. (on behalf of themselves and all Form 353. 
 other second mtge debenture holders of sd co), defts. M. E. 2 Ap. 
 1881, B. 1079. 
 
 In the above case the conduct of the sale was given to the official liquidator 
 in order that all parties might be given liberty to bid. 
 
 Upon the applicon of the pit, and upon hearing the solors for the Form 354. 
 
 applicant and for the defts, and upon reading an afft of : Order Liberty to sue 
 
 that the applicant be at \\Uj to sue the above named deft, J. B. S., on jj^j^^'jj'^''* ""^ 
 behalf of himself and the other holders of the second mtge debentm'es 
 of the deft co, for the ppose of obtaining the judgnit of this Ct upon the 
 questions referred to in the indorsemt of the writ in this action. 
 
 "Where there is a class having adverse interests to the plaintiff, an order as 
 above should be obtained. See Fraser v. Cooper, Hall (^' Co., 21 C. D. 718. 
 
 Upon motion for judgmt, &c. Declare that the trusts of the indre Form 355. 
 
 of 2 March, 1874, in the statemt of claim mentd, ought to be performed ry^^^^^ jgj,,|_ 
 and carried into execution, and order and adjudge the same accordingly : Accouuts. 
 and let, &c. : 
 
 1. An account of the trust estate and effects comjjrised in the sd 
 indre, come to the hands of the defts F. and R. or either of them, or any 
 other person or persons by the order, or for the use of the sd defts or 
 either of them. 
 
 2. An account of what is due to the pits and all other holders of 
 debentures of deft co, dated, &c., for principal and interest in respect of 
 their sd debentures, distinguishing such of the sd debentm'es as are 
 overdue from such as are outstanding. 
 
 3. An account of all monies supplied by the pits in psuance of their 
 midertaking contd in the sd order of the 25th of May, 187G. Receivers 
 continued. Any of the parties to be at libty to apply in Chambers as to the 
 sale of the ppty comprised in the indre. Adjom-n, &c. Libty to appl}^ 
 Rodeicald and others [o/i hcltalf] v. Wayne's, ^c, Co., Limtd, and others, 
 Mahns, V.-C, 23 Mar., 1877, B. 591. 
 
 For subseqiient order in the above action, and in winding up for sale of the 
 assets, subject to the debentures, for 45,0001., with provisions as to distribution 
 •of the purchase money, costs, &c., and receivers to be paid and dischai'ged 
 " without passing their accounts," see B. 412, 8 March, 1878. 
 
 The advertisement for claims in the above action was at follows : 
 
 PuRSUA]!«'T to a judgmt of the Chancery Division of the High Ct of Form 356. 
 Justice made in an action of R. and others against Wayne's, &c., Co, Advertisement 
 Limtd, and others, 187G, R. 91, the Holders of Debentures in for claims. 
 Wayne's, &c., Co, Limtd, dated the 2nd of March, 1874, are, on or 
 
 before the 11th day of June, 1877, to send by post prepd to U. of , 
 
 in the city of London, the solor of R. and R., the trustees of a certain 
 indre dated the 2ud March, 1874, their Christian and surnames, 
 addresses, and descriptions, and the fuU parlars of the debentmx'S held
 
 408 
 
 JUDGMENTS AND OEDEES. 
 
 Form 356. I^y them and the sums claimed in respect thereof, Or in default thereof 
 _ they will be peremptorily excluded from the benefit of the sd judgmt. 
 
 Every person holding any debenture is to produce the same before the 
 Vice-Chancehor Sir E. M., at his chambers, situate, &c., on Tuesday, the 
 19th day of June, 1877, at 12 o'clock at noon, being the time appointed 
 for adjudicating on the claims. 
 
 Dated this day of , 1S77. 
 
 \_Signed ly Cliiof Clcvl: and PMntiffy Soliciiors.'] 
 
 Advei'tisements framed as above have beeu issued in many cases, altliougli it 
 seems doubtful whether the form is qviite reguhir. See Kules of 1883, 809. In 
 some cases the advertisement has been framed as follows : 
 
 " Pursuant to an Order of the Chancery Division of the High Court of Jus- 
 tice, made in an action Mowatt v. The London Co-ojierative Laundry Comiiany, 
 Limited, 1882, No. 2118, the holders of mortgage debentures issued by the 
 defendant company under and in pursuance of an indenture dated the 11th day 
 of Aiigust, 1880, made between the said company of the one part, and the 
 defendants Sir A. F. and H. W. of the other part, are required, on or before 
 the 11th day of January, 1883, to send their names and addresses in full, and 
 the amount claimed by them as such debenture holders for principal and 
 interest, and the names and addresses of their solicitors, if any, to J. W. S., of 
 
 Street, London, E.C., chartered accountant, the receiver and manager 
 
 apjjointed in the said action, and are to prodvice their debentures at the cham- 
 bers of Vice-Chancellor Sir James Bacon, in the Eoyal Courts of Justice, 
 Strand, in the county of Middlesex, on Friday, the 19th day of January, 1883, 
 at 12 o'clock noon. Dated this 12th day of December, 1882." 
 
 Keceiver and 
 manaffer. 
 
 rorm 357. Upon motion, &c. Order that a proper person l)e appointed receiver 
 and manager on behalf of the jDlt and the other above-named debenture 
 holders until judgmt in this action or until further order of all the ppty 
 and assets of the deft co comprised in or subject to the securities or 
 charges created by the mtge debentures issued by the deft co to the pit 
 and the sd other debentm-e holders, and also to manage and Avork the 
 mines and generally to carry on the business of the co comprised in the 
 sd securities. And let such receiver and manager fi'om time to time 
 pass his account as such receiver and pay the balances which shall be 
 certified to be due from him or so much thereof as shall be certified to 
 l)e proper to be so pd into Ct to the credit of this action, SiafJtam v. 
 London Jagersfoniein Diamond Mining Conqmng, Liniid, 1883, S. 2604. 
 Chitty, J., 2 June, 1883. 
 
 In this case the mines were situate in South Africa. 
 
 In actions to enforce mortgage debentiires an early application is commonly 
 made for a receiver, or where there is a business to be carried on, for a receiver 
 and manager, and if the company has made default in the payment of principal 
 or interest there is generally but little difficulty in obtaining the appointment. 
 See Hojjkins v. Worcester ^' Bir. Canal, G Eq. 437 ; Perry v. Oriental Hotels Co., 
 5 C. 420; Peek v. Trimsaran Co., 2 C. D. 115 ; Boyle v. Bettws Colliery Co., 2 C. 
 D. 726 ; and infra, Forms 358 et sc^. 
 
 Where a company is being wound up by the Court it is generally considered 
 desirable, if there is to be a receiver of any part of the assets, that the same 
 person should be both receiver and liquidator. Accordingly, if when the apjili- 
 cation for a receiver is made, a liquidator has already been appointed, tlie liqui- 
 dator is generally appointed receiver ; and where a receiver has been appointed
 
 FORMS. 
 
 409 
 
 in the action before the winding up, he is sometimes appointed liquidator ^)J rorm 357. 
 
 the Court. If after the appointment of a receiver a winding-ui) order is made, ■ 
 
 the receiver (unless he is appointed liquidator) is usually discharged, and the 
 liquidator appointed in his place. 
 
 Thus, in Louth v. The Western of Canada Co. (incidentally mentioned in 
 17 Eq. 1), a receiver and manager was appointed (Malins, V.-C, 31 July, 1873, 
 B. 2170), and the same person was subsequently appointed official liquidator. 
 The same coiu'se was adopted in Peek v. Trimsaran Co., M. E.., 12 May, 187(J. 
 In D'Oyley v. British Chemical Co., the provisional liquidator was appointed 
 receiver. Bacon, V.-C, 29 June, 1876, A. 1G57. In Brown v. Wedgwood Co., 
 the same person was by a single order appointed to both offices. Malins, V.-C, 
 2 Aug., 1875, B. 2.57. In Perry v. Oriental Hotels Co., 5 Ch. 120, the liquidator 
 was appointed receiver. The same thing was done in Wethered. v. Yniscediuyn 
 Co., M. E.., Jan., 1877, and in Slater, on behalf, cfc., v. Darlaston Steel Co., M. R., ■ 
 2 June, 1877, B. 1396 ; M. E., Jan., 1877. In Camybell v. Compagnie Generate 
 de Bellegarde, 2 C D. 181, an order was made discharging the receiver and 
 appointing the liquidator receiver. Bacon, V.-C And see Tottenham v. 
 Swansea Co., W. N. 188 1-, p. ok 
 
 But where the winding up is voluntary the practice is not always followed ; 
 and, in any case, special circumstances as to the presentation of the property 
 will be taken into consideration. Boyle v. Bettws Colliery Co., 2 C D. 726. 
 
 Moreover, in Elkins v. Capital Guarantee Soc, where Chitty, J., had, after a 
 supervision, appointed a person who was not the liquidator to be receiver, the 
 Court of AjDpeal (Cotton and Fry, LL. J.) refused to disturb the appointment, 
 being of opinion that the judge had a discretion, and that Perry v. Oriental 
 Hotels Co., ubi supra, had not established any general pi-inciple. 
 
 " Upon motion, &c. : Order tliat a proper person be, upon his ii,"ivini;- Form 358, 
 security, appointed to receive the rents and profits of the defts' real ^eceiT^^ T 
 estate (inckide leaseholds), and to manage the defts' colliery business, manager. 
 and get in the outstanding del)ts and effects l)elonging to the defts. 
 And let the defts deliver over to such receiver all the stock, jilant, ma- 
 chinery, and effects of the defts, and all securities in their hands for such 
 outstanding debts and effects, with all l)ooks and papers relating thereto, 
 and in case it shall be necessary to put any of the debts in suit for the 
 recovery thereof, the same to l)e done with the approval of the judge, 
 and the person so to be appointed is to be at liberty to make use of the 
 names of the pits and defts who are to be indemnified therein out of the 
 jDremes comprised in the security of the pits in the sd afift davit mcntd, 
 and out of the sd stock, plant, machinery, and effects. And order that 
 the i^erson so to l)e appointed do from time to time pass his accounts, 
 and after retaining in his hands such sums as shall be deemed sufficient 
 to carry on the sd collieries, pay the balances which shall be certified to 
 be due from him, in Ct to the credit of this cause of, &c., and \_inv('>>t 
 and accumulate^.'' Poelix. Trimsaran Co., M. R., 10 Feb., 187G, B, 240 ; 
 2 C. Div. ] 15. For the subsequent order see B. GJo. 
 
 For order by consent appointing receivers and managers without security, 
 plaintiffs undertaking to supply funds not exceeding 15,000J. to carry on the 
 business, see Rodeieald v. Wayne's, ^'c. Iron Works, Malins, V.-C, 25 May, 1876 ; 
 B. 1521. The order is given in Seton, p. 418. 
 
 Upon motion, &c. : Appoint C. the prov. licp of the deft co receiver Form 359. 
 and manager on behalf of the pit and all other the debenture holders of provi.sional
 
 410 JUDGMENTS AND OEDEES. 
 
 Form 359. the deft co of all the ppty and assets of the deft co comprised in or snh- 
 Hqiiidatorto " J^'*-'*^ ^*^ ^^^ Securities and charge created by the debentures issued by the 
 lie receiver. cleft CO to the pit and the other deljenture holders as in the sd affidavit 
 
 mentd : And \^j)ass accounts, pay halances. Invest and accuimiJate}. 
 
 T/OyJcij V. British Chemical Co., Bacon, Y.-C, 29 June, 187G, A. 1G57. 
 
 As to appointing liquidator to be receiver", see supra, p. 409. 
 
 Form 360. Upon motion, &c. : Appoint H., of , the managing clerk of the 
 
 Clerk of com- deft CO without his being required to give security, and at his present 
 pany to lie salary of -It. 5.S. per week to manage the real and personal jipty and 
 manager with- business of the deft CO comprised in the indre dated, &c., in the ^^Tlt m 
 out security. tjj]g actiou mentd, and to receive the rents and profits and produce of 
 tlic sd jDpty and business until further order of this Ct : And order that 
 
 the defts The Co, T., and CI., deliver over to the sd H., as such 
 
 receiver, all securities in the hands of them or any of them, together 
 with all books and papers relating to the real and personl ppty and busi- 
 ness of the CO. \_Ac.counts. Payment. Investment. Accumulation.'] 
 Perry [^on hehalfof,,<kc.'] v. Ctutton Hall Coal Co., Malins, V.-C, 22 June, 
 187G, B. 1(;98. See Form 349. 
 
 Form 361. Upon motion, &c. : Let all the hereds and premes comprised in the 
 Sale on motion, iudres dated, &c., and all the chattels and things upon or connected 
 with such hereds and premes, and contd in the sd indre, be sold, with 
 the approl)ation of the judge : And let the proceeds of such sale be pd 
 into Ct to the credit of this action, ttc, or otherwise as the judge 
 shall direct : And the pit by his counsel adopting the agreenit herein- 
 after mentd, Let the agreemt dated 31 Oct., 1877, and made, &c., for 
 the sale of the sd hereds known as the Cwm estate, at the price of 
 1(1,000/., be carried into effect, and. Let the monies to arise from the 
 sale of the last-mentd hereds be jxl into Ct to the credit of this action, 
 &c., or otherwise as the judge shall direct. Davis v. Ash win, Hall, 
 V.-C, 27 Nov., 1877, A. 3552. See also the rejiort in 2C> W. E. 
 139. 
 
 Under s. 25 of the Conv. and Law of Property Act, 1881, property can be sold 
 in a foreclosiu'e action ujion an interlocutox-y apjilication. Woolley v. Colman, 
 21 C. D. 173. 
 
 Form 362. Upon the applicon of the pits, and upon hearing the solors for the 
 Sale in action aii[)licauts and for the defts : By consent order that the lands, water- 
 aud winding works, and other ^vorks of the sd co situate in and about the city of 
 Cadiz, in Spain, or elsewhere, with the benefit of the concessions granted 
 to or for the sd co, and the engines, plant, and machinery belonging 
 thereto, and all other the premes which by the four indres all made 
 between the sd co of the one pt and the pits of the other pt, were granted 
 and assigned to the pits upon trusts for sale as therein mentd, together 
 with the goodwill of the business and the undertaking of the sd co, and 
 
 up
 
 FOEMS. 411 
 
 the stores and materials belonging to the sd co now in the possession of Form 362. 
 the pits at Cadiz or elsewlicre in Spain, be sold with the apjn'oljation of 
 the judge : And let the monies to arise from such sale be pd into Ct to 
 the credit of this action of, &c,, as regards so much of the same as shall 
 arise from a sale of the premes comprised in the sd indres to an account 
 intituled " Debenture Fund," and as regards so much of the same as 
 shall arise from the sd goodwill, stores, and materials, and any other 
 parts of the premes sold not comprised in the sd indres, to an account 
 to be intituled "(ieneral xVssets :'' and in the event of all the premes 
 being sold together at one price, order that the proportion of the pchase 
 monies to be carried to such separate accounts be determined as the judge 
 in chambers shall direct, and the def ts and their solors Messrs. B. under- 
 taking to give all proper facilities for completion within 12 months 
 from the date of this order, Declare that all the costs now due and 
 owing from the deft co and the pits respively to the sd Messrs. B. both 
 fis solors for the deft co and as solors for the pits, are to be treated as a 
 charge upon the afsd proceeds of the sale by this order directed. And 
 order that the same may Ije taxed by the taxing-master as between solor 
 and client, and, after paymt of the costs of all parties of and incident 
 to the sd sale, be pd in pri(jrity to all other charges and jiaymts out of 
 the first monies Avhich shall arise fi'om the sale hliy directed, l)ut so that 
 the fund comprehended in the account "General Assets" be first applied 
 for that purpose. Chkliohn v. Cadiz WafericorJcs, Malins, V.-C, 11 Xov.» 
 A. 2102. 
 
 Upon the applicon of the jtlt, &c. : Let the conditional contract dated Form. 363. 
 
 2 Mar., 1878, made between the deft co of the 1st part, E. (tlie receiver Approval of 
 and manager of the ])pty of the sd co) of the second pt, and the defts conditional 
 G. B. and J. E. of the third pt, and the Blshwell Coal d: Coke Co., g^jg/ 
 Limtd, of the 4tli pt, for the sale to the last mentd co at the sum of 
 15,000/. of the premes therein described, being the leasehold colleriesof' 
 the deft co, together with the fixtures, fittings, and plant, machinery, 
 and implemts, and effects used in connection with the sd colliery, directed 
 to be sold by the judgmt dated l.j June, 1877, be carried into effect ; 
 such sum of 15,<)00/. to Ijc pd and satisfied in the manner set 
 forth in the sd contract. Lee [_on livlialf, cCr.] v. Bower, E., and ihe 
 BishweJl CoUcries, Limtd, 1877, L. lul:. Mahns, V.-C, 22 Mar. 1878, 
 B. 615. 
 
 Upon the apphcon of K. and B., the trustees for the mtge debenture Form 364. 
 holders of the above named co, and upon hearing the solors for the Approval of 
 applicants, and for the off. liq, of the sd co, and upon reading an order contract for 
 dated 2G June, 1875 [/rindi/it/ ?//;], an affidavit, &c. : Let the applicants 
 be at lil)ty to carry out the conditional contract dated the 8th of May, 
 1876, made between the applicants of the one pt, and the S. Co of the 
 other pt, for the lease to the sd S. Co of the premes therein mentd and 
 comprised. And let the off. liq. have 14 days from the date of this order
 
 412 JUDGMENTS AND OEDERS. 
 
 Form 364. to remove all jipty from the premes belonging- to the above named co 
 not comiM'ised in the mtge by the sd co to the applicants. The Glolic 
 New Patent, <Cr., Cu., 24 March, 1870. And see Forms 482 ct seq.y 
 infra. 
 
 Form 365. 
 
 Receiver to 
 borrow 2000?. 
 
 U})on the applicon of the pit, and upon hearing the solors for the 
 applicant and for the defts, and npou reading orders of 17 May, 1877, 
 and of 18 May, 1877 \_siq)ervision order'\. Order that the receivers 
 and managers of the colliery and effects of the deft co be at libty to 
 borrow a snm of money not exceeding 2000/. at interest, at a rate not 
 exceeding 8 p. c. p. a., to be repayable Avithin six years, as a first charge, 
 out of the monies to be realised by sale of the ppty of tlie sd co, pur- 
 suant to the sd order dated 15 June, 1877, and meantime to be a first 
 charge on the sd ppty and effects of the deft co. Lee v. Bower, Malins, 
 V.-C, .■) July, 1877, V>. 1280. 
 
 Liberty to 
 borrow from 
 debenture 
 holders. 
 
 Form 366. Upon the api)licon of the pits, and uj)on hearing, &c. Order that the 
 applicants be at libty, in accordance with the resolutions r.nanimously 
 passed at a meeting of the 1st l)ondholders held on the 18th March, 1878, 
 to liorrow from such of the Ist bondholders as may be wiUing to 
 subscribe thereto, a sum of 2(i00/. or any smaller sum, for the ppose of 
 enabling the pits to maintain the co's waterworks at Cadiz in efficiency 
 until the sale ordered by the Ct can be carried out, subject however 
 to the order made in this action on the 12th Xov., 1877. C/rishotm v. 
 Cadiz Watertrorks, Malins, V.-C, G Ap., 1878, A. 770. 
 
 Compare these with the orders in winding up, giving liberty to borrow. Fornii 
 409, et seq. 
 
 Form 367. 'L^pon the applicon of the })lt, &c. Let D. the receiver and manager 
 ^:, be at liberty to raise a sum not exceeding GOdO/. upon the security of the 
 
 Liberty to • it,- , , . ^ 
 
 raise money to ppty and Undertaking of the co, for the ppose ot paying off the j^refe- 
 
 jjay oft" prior 
 incumbrances. 
 
 rential claims of creditors in Germany, and of discharging the claims 
 of creditors who have obtained orders of sequestration of the ppty of 
 the sd co, but the interest to be pd on the sum borrowed is not to exceed 
 7 p. c. p. a. (rordon [_on Icliatf, tfr.] v. Cassel Tramways Co.,\ Bacon,, 
 Y.-C., 8 July, 187'J, A. 148G. 
 
 In accordance with the practice mentioned above, p. 409, D. was by an order- 
 of 15 July, 1879 [A. 1558], appointed official lic|uidator of the company. 
 
 Form 368. 
 
 Liberty for 
 receiver to 
 appoint 
 attorney- 
 
 Upon the applicon of the pits in the first above-named action, &c. Let 
 the sd S. and R. [^tJie receivers'] be at libty to execute and send out to 
 S. It. their agent at llio (jraiide, in the empire of Brazil, the power of 
 attorney to act for the sd receivers in carrying out the arrangemts for 
 the sale of the ppty in the pleadings mentd to C. T. P., which power 
 of attorney has been settled by the judge as a jiropcr power of attorney 
 for that iJiinse, and is identified by the signature of the chief clerk in
 
 FORMS. 413 
 
 the margin thereof, and costs of applicou to be costs in action. Jkirnj Form 368. 
 V. Sao Pedro, dtc, Co., 10 Oct., 1877, A. 1770. 
 
 Upon the applicon of tlic j^lt and ^l. the liq. of the co, receiver and Form 369. 
 
 manager [in flic (frfio//]. Let C. of in the Empire of Russia be Liberty to ap- 
 
 -.ippointed attorney and agent of thesd M. as such receiver, nianager, and ['"'"^r^oii"*^'''' 
 b(|., as afsd, as from 30 June, 1879, to manage the business now carried business in 
 on liy the co in Russia, and to superintend and direct all matters relating ^"^^i^) ^^^ 
 to the ppty and assets of the co situate there, and to negotiate for and 
 
 eflFect the sale of the works upon the follo^^'iug terms, &c. ; and let 
 
 M. as such, &c., and the deft? B. and L. as trustees of the deed, &c., 
 execute a power of attorney to the sd C. for the pposes afsd, which power 
 of attorney has been settled and approved by the judge as a proper power 
 of atttorney, as appears by the memorandum signed, &c. Bell [o» hehalf, 
 <fr.] V. Russui Copper Co., :sl. R., 24 Mar., 1870, A. Ui'j ; and sul)se- 
 queut order, '> Nov., 187'.), A. 218i». 
 
 V.\)o\\ motion, &c. Let the receivers and managers continued in the Form 370^ 
 consolidated action be at libty to send such telegram as in the loth Liberty to 
 paragraph of the sd affidavit of H. mentd, with the variation, &c. : and ^e'"l telegram, 
 costs of all parties of this applicon to be costs in the consolidated 
 action. Barry v. Sao Pedro Co., M. R., l.j jMar., 1877, A. .j08. 
 
 Upon the applicon of T., &c. Order that, without prejudice to any Form 371. 
 rights which the parties may have against each other, S. and \V., the Liberty to 
 receivers, do surrender to the appHcant T. the indre of lease, dated, &c., surrender 
 and that the sd receivers do deliver up possession to the apphcant T. of 
 
 premes comprised in the sd lease, and of the cottage situate at , 
 
 afsd, held by the sd co as yearly tenants to the applicant, and costs of 
 pits, defts, and receivers of this applicon to Ijo costs in this action. 
 Dawson \_oa helialf, tjv.] v. Oiren, 7 Feb., 1878, A. G02. 
 
 Upon the applicon of the defts, &c. Let the defts 0. J. S., and the Form 372. 
 deft CO be at liberty to convene a meeting of the debenture holders of Meeting of 
 the deft co to be held on Thursdav the 8th Fel). next, at the Hotel, debenture 
 
 , , - . , „ ,. " 1 r> , • • , 1 • -1 liolders to be 
 
 at 2 clock m the afternoon, for the ppose of ascertannng then- wishes convened. 
 with regard to the sale, or otherwise, of the ppty of the sd co, and let 
 the costs of this appHcon and incident thereto be costs in the action. 
 Dawson v. Owen, 22 Jan., 1877, A. 83. 
 
 For order on application to confirm conditional agreement for sale of assets 
 directing the application to stand over, meeting of tlie debenture holders to be 
 convened and result stated, see Vickerman v. Bonvilles Co., Hall, V.-C, 2 Aug. 
 1878, B. 1602. 
 
 For order at trial of action, whereby after reciting, inter alia, that meeting 
 of debenture holders had been held, and approved the scheme of compromise as 
 follows, &c., it was ordered that the compromise should be carried into effect, 
 and that all proceedings in the action, except such as should be necessary for
 
 414 
 
 JUDGMENTS AND OEDEES. 
 
 Form 372. enforcing the order and carrying out the compi-omise, should be stayed, see 
 
 jjQQpg^. y_ j^gy, Town Manure Co., 13 Ap., 1878, A. 806. 
 
 See also " Arrangements/' infra. 
 
 Advertisement 
 convening 
 meeting of 
 del)enture 
 holders. 
 
 The following are examples convening meetings : — 
 
 Form 373. I^' the High Ct of Justicp] : — Chancery Division. Vickerman 
 r. The Boxvilles, &c'., Co, Li:mtd, and others, and in the matter of 
 the Cos Acts, 18G2 and 18G7, and in the matter of The Bonvilles, 
 &('., Co, Lbitd. 
 
 Xotice is hhy given that pursuant to an order of this honourable Ct, 
 made the 2nd day of August, 1878, a meeting of the debenture 
 HOLDERS of the above co will be held at the Inns of Court Hotel, Hol- 
 born, London, on Thursday the IDtli day of Sept. instant, at one o'clock 
 in the afternoon, for the ppose of considering, and (if approved) to 
 sanction the acceptance of a conditional agreemt, dated the 11th of July 
 last, for the pchase of the works and ppty of the co comprised in the 
 parlars of sale dated the 17th of May last, when the works were offered 
 for sale by auction, and subject to the conditions attached to the parlars 
 of sale. 
 
 Dated the 10th Sept., 187G. 
 
 H. B., Receiver, Manager, and Liq. 
 
 Form 374. In the High Ct, &c. 
 
 Another. ^^1 persons holding debentures of the Industrial Coal & Iron Co, 
 
 Limtd, either of class A or class B, are hby specially invited to attend 
 a 3IEETING convened l)y the trustees for the debenture holders, with 
 the sanction of his lordship the V.-C. Sir R. M., in the above action, 
 dated the 22nd of Jan. instant, to be held at the Cannon Street Hotel, 
 Cannon Street, in the city of London, on Thursday, the 8th of Felx, 
 1877, at 2 o'clock in the afternoon, precise time, in order to consider and 
 decide upon the scheme and plan to be submitted to the Judge for dealing- 
 with realisation and disposal of the co's ppty, as directed l;)y the decree in 
 the above action. 
 
 Dated the 24th Jan., 1877. 
 
 P. & H., of , Solors for the sd Trustees. 
 
 Form 375. 
 
 ConsoUdation 
 order. 
 
 In the High Ct of .Justice : — Chancery Division. Mr. Justice 
 F. In the matter of the Companies Acts 1802 & 18(i7, and in the 
 matter of The Canadian Oil Works Corroration, Limtd, Taylor \. The 
 Canadian Oil Worls Corporation, Limtd. Notice is hby given that the 
 Honourable Mr. Justice Fry has directed a :meeting of the creditors 
 and DEiiENTURE HOLDERS in the above named co, who have proved their 
 debts in the winding up thereof or tlieir del)enturcs in the above mentd 
 suit, to be sunnnoned pursuant to the al)ove statute for the ppose of 
 ascertaining their wishes as to certain matters relating to the winding 
 up of the sd CO, and that such meeting will be held on Tuesday the 17th 
 January, 1882, at three o'clock in the afternoon precisely, at the London
 
 FORMS. 
 
 415 
 
 Tavern, No. ')4-, Fenchurch Street, in the City of London, at -whieh time Form 375- 
 and place all the above mentd creditors and debenture holders of the sd 
 CO are requested to attend. The sd judge has appointed Mr. Samuel 
 Lowell Price, of Xo. 44, Gresham Street, in the City of London, char- 
 tered accountant, off. liq. of tlie sd co, to act as chairman of such meeting. 
 Dated this 23rd of Deeenil)er, 18.S1. 
 
 , Off. Li(i. 
 
 , Solors for the Off". Liq. 
 
 In pm-suance, Arc, I hby certify that the result of the account and Form 376. 
 inquiry which has been taken and made in psuance of the judgmt certificate of 
 herein, dated 4 March, 1881, is as follows : — amount due 
 
 The pits and defts have attended me by their respective solors. holders'^ "^^ 
 
 1. In the ;>rd column of the schedule hto are set forth the parlars of 
 the principal and interest monies respively secured by and due under or 
 
 in respect of the debentures of KM)/, each, issued l:)y the deft co in 
 
 the sd judgmt mentd. 
 
 '2. The present bearers of sd debentures are the several persons or firms 
 whose names and descriptions are set forth in the 2nd column of 
 schedule. 
 
 The evidence produced consists of the screral aff'ts of, &c., and the sd 
 several debentures. 
 
 Schedule. 
 
 
 
 Amount of princiiiid 
 
 Number of 
 
 Sei-JMl 
 
 Xaiiies ami rtescriptinns of present bearers 
 
 and interest seciu'ed 
 
 debentiu'es j Total 
 
 Xcl. 
 
 of debentures. 
 
 and due untier 
 
 and tlieir 'amount due. 
 
 
 
 debentures. 
 
 munbers. 
 20 
 
 
 ' 1 
 
 To the plaintiff 0. of , nici-cliant. 
 
 £2000 
 
 
 
 
 
 numljered, 
 
 
 Intei'est at C jier rent. i>er annum, 
 
 
 &c. 
 
 
 from Lst Julv, 1879, to 12th April. 
 
 
 
 
 1881, the date of certificate, less 
 
 
 £ s. if. 
 
 
 income tax. 
 
 202 17 9 
 
 
 2202 17 9 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 1 
 
 Op2)enJmm v. ^Vrech Recovcru Co. 
 
 Upon the applicon of the receiver in this action, and liq in the Form 377. 
 winding up, and, &c. Order that the applicant l)e at libty to pay to j)},^^^^^^^ 
 each liolder of debentures whose name is stated in the 2nd column of tlebenture 
 the 1st pt of the schedule to the chief clerk's certificate a dividend of r,/. ^°^'^^'"-'*- 
 in respect of each lOo/. del)enture held by him, out of the monies in his 
 hands as such recei^Tr and liq. Limlcrt \_on heJmlf, <Scc.'] v. Mineral 
 Hill, ci-c, Co., 27 :Mar., 1877, B. CA\H. 
 
 Upon the peton of L. of , the above-named pit, on the 17 Dec, Form 378. 
 
 1878, preferred unto this Ct, and upon, &c. Order that notwithstaud- Distribution 
 ing the sd order of the 6 August, 1878, the sd H. be at libty to apply of cash.
 
 416 JUDGMENTS AND OEDEES. 
 
 Form 378- tlie sum of 4557/. 14.9. 9^/. now on deposit in the Royal Bank of Scot- 
 land, and any interest which may have accrued thereon, in the manner 
 provided l^y the resolutions j)assed at a meeting- of the debenture-holders 
 of the sd CO on the 2nd of October, 1878, iu the peton mentd : And let 
 all further proceedings in this action be staj'-ed : And let the receiver be 
 discharged. L' Amy [on hclialf, (j-c] v. Impcrud Chomkal Co., 2o Bee, 
 1.S78, B. 2205. 
 
 Form 379. Upon the applicon of the pit, and upon hearing the solors for the ap- 
 Dividend to plicant, and for E., the pchaser of the ppty of the co sold in this suit 
 holdeil"^^ and npon reading, &c. Let, out of the sum of 5G72/. lis. (kl., cash in 
 Ct to the credit of this cause, &o., the several sums mentd in the 3rd 
 column of the schedule, making together 2G05/. 10s. Gd., be pd to the 
 several persons whose names are set opposite the same in the 1st colmnu 
 thereof. Schedule showing payees, nature of paymt, and sums. MilUgan 
 lun hchalf] v. HdUn SuJjjhur Co., M. Pt., 8 May, 1877, B. 1272. 
 
 Form 38 0. Further conson. Order that snl)sequent interest be computed on the 
 Order to pay several j^rincipal sums in the Srd column of schedule to chief clerk's 
 (e euiues. Q(-.^.j;ifj(-.rj|-g mentd to be secured by and due under the del)entures in 
 same schedule mentd at the rate of G p. c. p. a. fi-om 13 April, 1881, the 
 date of sd certificate, to tlie day of paymt to be ascertained by aflft. 
 Order that the amounts of such subsequent interest, and the total 
 amounts due to the several bearers of debentures in sd schedule mentd 
 for principal and interest in respect of such del)entures, be verified by 
 aff't. Order that out of the 4500/. casli in Ct to the credit of, &c., the 
 several amounts which shall by such afft appear to be due to the several 
 bearers of debentures named in the 2nd column of schedule to sd certi- 
 ficate for jirincipal and interest be pd to such bearers of debentures 
 respively. Tax the costs of the pit and defts of this action, including in 
 the costs of pit his costs of and relating to a])plicou for libty to 
 commence this action. Order that out of the residue of sd cash after 
 
 paymts afsd sucli costs be pd as follows, viz., the costs of pit to W. 
 
 and the costs of deft co to . Order that the ultimate residue of sd 
 
 cash 1)0 pd to E., the receiver in the action. Discharge the sd R. Order 
 him to pass final account and retain balance that shall be certified due 
 from him as off. liq. of co, and thereupon vacate recognisance. Libty to 
 a]iply. Oppcnltohn \_oii he]ialf'\ v. Wreclc Recovery Co. Fry, J., 20 April, 
 1881, B. 120G. 
 
 For order on further consideration for the payment of amount due to bearers 
 of debentures, and for delivery uj) of debentures with receipts, see Barry v. 
 fiao Pedro Co., M. E., 1 Aug., 1878, A. 2787, Ptd.
 
 WINDING-UP. 
 
 Compulsory winding-up 
 Preliminary forms . 
 Provisional liquidators 
 Miscellaneous foi-ms 
 Appointment of official liq. 
 Seciu'ity of official liquidator 
 Accounts of official liquidator 
 Remuneration of official liqi 
 
 dator .... 
 Removal of official liquidator 
 Delivery of books . 
 Carrying on the biisiness . 
 Borrowing . . . , 
 Sales of property 
 Miscellaneous authorities 
 
 official liquidator 
 Contributories 
 Creditors .... 
 Sectu'ed creditors . 
 Attending proceedings 
 
 PAGE 
 
 
 PAOB 
 
 . 417 
 
 Service ... . . . . 
 
 485 
 
 . 417 
 
 BUls 
 
 488 
 
 . 428 
 
 Restraining and staying actions 
 
 
 . 431 
 
 and proceedings . . . . 
 
 489 
 
 . 432 
 
 Transfer 
 
 493 
 
 . 434 
 
 Liberty to bring actions . 
 
 494 
 
 . 439 
 
 Discovery and inspection of 
 
 
 Lui- 
 
 documents .... 
 
 498 
 
 . 441 
 
 Cross-examination . . . 
 
 501 
 
 . 447 
 
 Special examiners 
 
 501 
 
 . 448 
 
 Examination under section 115 . 
 
 504 
 
 . 449 
 
 Proceedings under section 165 . 
 
 507 
 
 . . 451 
 
 Compromise 
 
 510 
 
 . 452 
 
 Meetings ..... 
 
 515 
 
 to 
 
 Official liquidator's costs . . 
 
 516 
 
 . 456 
 
 Appeals 
 
 519 
 
 . 461 
 
 Staying winding-uj) . . . 
 
 522 
 
 . 468 
 
 Dissolution ..... 
 
 542 
 
 . . 479 
 
 Voluntary winding-iip . . . 
 
 527 
 
 . 4S3 
 
 Winding up imder supervision . 
 
 546 
 
 INTRODUCTORY NOTE. 
 
 Between fifty and sixty useful forms relating to winding-up are 
 given in the Schedule to the General Order of 11 Nov. 18G2 ; hut in 
 the winding-up of a company numerous other forms are frequently re- 
 quired, and accordingly the following collection of orders, summonses, 
 affidavits, and other forms is submitted by way of supplement. 
 
 FORMS. 
 
 In this division of the work the rules contained in the General Order of 11 Nov. 
 1862 have been referred to thus — " Rule 5 ; " and. the forms given in the schedule 
 to such order have been referred to thus — " Form 6 in schedule to Rules." The 
 Rules of the Sui^reme Court, 1883, are referred to as the "Rules of 1883," or thus, 
 " Order , r. 
 
 Common Forms. 
 In the High Ct of Justice. 
 Chancery Division. 
 
 Mr. Justice . 
 
 In the matter of the Cos Acts, 1862 and 1867. 
 
 And in the matter of The Co, Limtd. 
 
 Let all parties concerned attend the Judge in chambers on day 
 
 the day of , 188 — , at o'clock in the noon, on the 
 
 E E 
 
 Form 381. 
 
 Fomial parts 
 of ordinary 
 summons.
 
 418 
 
 WINDING-UP. 
 
 Form 381. hearing of an applicon on the pt of [state on whose lehalf the appli- 
 -^ con is made ; e.g., " the petr in these matters''' or " tJte off. liq. of the 
 
 ahove-named co" or ".4. /.'., a creditor of the ahore-namcd ro "], 
 that \_.state the nature of the ajiplicon'], and \_as to costs, c.cj., " tliat the 
 costs of this opplicon may lie costs in the ivinding-iip,'' or " that the off. licp 
 may he ordered to pay the costs of and incidental to this applicon "]. 
 
 Dated this day of , 188—. 
 
 This summons was taken out by A., of , in the county of Middle- 
 sex, solor for the apphcant. 
 
 To [insert the names of the soJors or ^^crsons {if any) to le served 
 with the summons; e.g., ''the off. liq. of the ahove-7iamed co and Mr. 
 , his so/o?'"]. 
 
 As to this form see Eules of 1883, rule 743. As to the right a party has to 
 have the summons adjourned to be heard by the Judge, see Ui:>ton v. Brovm, 20 
 C. D. 731 ; Smith v. Wells, 22 C. Div. 5. 
 
 Formal parts 
 of notice of 
 motion. 
 
 Form 382. In the High Ct of Justice. 
 Chancery Division. 
 [Name of Judge.'] 
 
 In tlie matter [as in Form 381]. 
 Take notice that the Ct will be moved before his lordship, Mr. 
 
 Justice , on day, the day of , 188 — . 
 
 [If the motion is to he heard at a specially appointed hour, state the 
 fact ; as :] at eleven of the clock in the forenoon of that day, or so soon 
 thereafter as counsel can be heard, 
 
 [Here state on whose hehalf the motion is to he made ; as .-] by Mr. A. 
 as counsel on the pt of the oft", liq. of the above-named co, that [here 
 state the ohject of the motion']. 
 
 [If special leave has heen ohtained to give the notice for a non-motion 
 day or for a motion day short of the ordinary two clear days after service, 
 or for a special hour and place, state the fact ; as .-] And take also notice 
 that special leave [see, as to necessity of mentioning this, Dawson v. 
 Beeson, 22 C. Div. 504] to give this notice for the day (and hour and 
 
 place) afsd has been obtained from his lordship Mr. Justice [or as 
 
 the case may hc']. 
 
 Dated this day of , 188—. 
 
 B. C, of , 
 
 Solor for the oft", liq. of the above-named co [or as 
 the case may he]. 
 To [insert names of solicitors or parties to whom the notice is to he 
 given:]. 8ec Rules of 1883, App. B., No. 18. 
 
 Form 383. 
 
 Formal parts 
 of affidavit. 
 
 In the High Ct of Justice, 
 Chancery Division. 
 
 In the matter, &c. [As in Form 381].
 
 ADVEETISING PETITION. 419 
 
 I, A. B., of [Jiere insert pJacr, residence, and description or addition'] Form 383. 
 make oath and say as follows : — 
 
 1. On the day of , I, &c. 
 
 \^Here set out the statemts.'] 
 
 Sworn, &e. 
 
 This afft is filed on the pt and behalf f»f tlie ofP. li<i. of the above- 
 named CO [or as the case maij he]. 
 
 Eule 523 requires that affidavits shall be confined to such facts as the witness 
 is able of his own knowledge to prove, except on interlocutory motions [appli- 
 cations. Re, New Callao, W. N. 1882, 60 ; 30 W. E. 647 ; 47 L. T. 175] on which 
 statements as to his belief with the grounds thereof may be admitted. An 
 affidavit of facts to the best of the defendant's knowledge, information, and 
 belief, without stating the grounds, is worthless. Quartz Hill Co., 20 C. Div. 
 508. Evidence on information and belief is not admissible on applications 
 which finally settle the rights of the parties. Gilbert v. Endecni, 9 C. D. 259. 
 
 In the High Ct of Justice. — Chancery Di^•ision. Form 384. 
 
 In the matter of the Cos Acts, 18G2 and 18()7. And in the matter Advertisement 
 
 of the Co, Limtd. of presentatioa 
 
 Xotice is hby given that a peton for the winding-up of the above- 
 named CO by [_or, subject to the supervision of] Her Majesty's High Ct 
 
 of Justice, Chancery Division, was, on the , presented to the High 
 
 Ct of Justice by the sd co [or by A. B., of , a creditor, or, con- 
 
 triby of the sd co, or, as the case may he]. And that the sd peton 
 is directed to be heard before His Lordship the Honourable Mr. Justice 
 
 , on [Friday,] the • day of , 18 — ; and any creditor or 
 
 contriby of the sd co desirous to oppose the making of an order for the 
 winding-up of the sd co under the above Acts should appear at the time 
 of hearing by himself or his counsel for that ppose ; and a copy of the 
 peton will be furnished to any creditor or contriby of the sd co requiring 
 the same by the undersigned on paymt of the regulated charge for the 
 
 same. Dated this day of . 
 
 C. & D., of [agents for E. & F., of ], 
 
 Solors for the petr. 
 
 For insertion in the Gazette the advertisement must be signed by the solicitor 
 for the petitioner and witnessed, and the petition with the fiat of the Court 
 must be produced. 
 
 The appearance of the advertisement gives priority. Trades Bank, W. N. 
 1877, 268 ; see Storforth Lane Colliery Co., 10 C. D. ±87, as to priority between 
 petitions advertised in same Gazette. 
 
 Where the petition is to be heard in vacation the advertisement will state " that 
 by special leave granted by [name ofjudge~\, the said petition is directed to be 
 
 heard before Mr. Justice , or such other judge as may be sitting as Vacation 
 
 Judge. 
 
 See Rule 2, as to advertising a winding-up petition. 
 
 The iitmost care should be taken that the advertisement is correctly expressed 
 and duly advertised. 
 
 Any error in the title, name, day, or place for hearing, may render the adver- 
 tisement useless. In re City and County Bank, 2 Ch. 477 ; Marezzo Marble Co.,
 
 420 
 
 WINDING-UP. 
 
 Form 384. W. N. 1874, 9 ; 22 W. E. 248 ; Manure Co., W. N. 1876, 234. As to restraining 
 
 — advertisements, see siqwa. Form 345, and ivfra. Form 656. 
 
 For advertisement of winding-up order, see infra. Form 423. 
 
 Form 385. 
 
 Affidavit in 
 support of 
 petition. 
 
 I, A. B., &c., make oath and say, that such of the statemts in the 
 peton now produced and shown to me, and marked with the letter A., 
 as relate to my own acts and deeds, are true, and such of the sd statemts 
 as relate to the acts and deeds of any other person or persons, I believe 
 to be true. 
 
 Sworn, &c. 
 
 See Eule 4 as to this affidavit, and Cases, suina, p. 419. 
 
 Where there is likely to be opposition to the petition, it is generally desirable 
 to file further evidence supporting the case made by the petition and meeting 
 any affidavits filed in oj^position. Where the petition is not by the company an 
 affidavit of service may be desirable. See Form 387. But if the company does 
 not appear the order is sometimes made subject to the production of an affidavit 
 as to service to the registrar. 
 
 As to cross-examining witnesses on their affidavits, see infra. Form 620. 
 
 As to evidence in opposition : 
 
 Evidence should be filed contradicting, if possible, the petitioner's evidence,, 
 or showing that an order ought not to be made, e.g., because the majority of the 
 creditors or members desire the adoption of some other course. If necessary, 
 the petitioner and others making affidavits should be cross-examined thereon. 
 
 Form 386. Upon motion, &c., for A., who alleged that the sd A., on 1 Ap., 187G, 
 
 " ' presented his peton in these matters to this Ct, but omitted to file his 
 
 iDg time to file afft in support of such peton within the time limtd in that behalf by 
 
 affidavit. j^j^g general order of this Ct, and upon reading an aflft of E. L., filed the 
 
 11 Oct., 1876, let the sd A. be at libty to file his afft in support of the 
 
 sd peton notwithstanding the time limtd for that ppose has expired. 
 
 Civil, d'C, Supply Association, M. E., 11 Ap., 187G. A. 723. 
 
 Eule 4 provides that every petition for the ^vinding-up of any company l)y 
 the Coui-t, or subject to the supervision of the Court, shall be verified by an 
 affidavit as above. Such affidavit is to be made by the petitioner, or by one of the 
 petitioners, if more than one, or, in case the petition is presented by the com- 
 pany, by some director, secretary, or other principal officer thereof; and is to be 
 sworn after and filed within four days after the petition is presented, and such 
 affidavit is to be sufficient lyrimd facie evidence of the statements in the petition. 
 
 The four days limited by the above Eule for filing the affidavit verifying the 
 petition may, under Eule 73, be extended by the Court. Re Patent Screived Boot 
 and Shoe Co., 32 Beav. 142 ; Be Western Benefit Sac., 33 Beav. 368 ; 32 L. J. Ch. 
 179 ; Re Fortune Copi:)er, 10 Eq. 390. 
 
 The order is commonly obtained on motion ex j^arte before the hearing, and 
 very commonly without any sworn evidence being required. The order need 
 not now be drawn up, but notice must be given to the respondents. See Order 
 LII., r. 14. 
 
 Form 387. 1. On the 
 
 Affidavit of 
 service. 
 
 day of I served the above-named co with a 
 
 - of to this Honourable 
 
 with the order thereon of this Ct, dated the day of , 
 
 peton preferred in these matters by 
 Ct 
 
 whereby it was ordered that all parties concerned should attend thereon 
 
 on the day of , and that notice thereof should be given forth- 
 
 Avith, by delivering a true copy of the sd petition and order to A. B., the
 
 SERVICE OF PETITION. 421 
 
 secretary of the.sd co, at the registered office of the sd co, situate Form 387. 
 
 jit , and at the same time producing and showing to the sd A. B. 
 
 the sd original jieton with the sd order thereon. 
 Sworn, &c. 
 
 Where a special order as to service liaif been made [in/r«, Forms 388, et seq.'], 
 the form of affidavit must be varied accordingly. 
 
 As to service of winding-up petition, see Eule 3. Where the petition cannot 
 be served as thereby provided, apjslication for an order as to service should be 
 made to the Court by motion ex parte, supported by an afiidavit as to the facts. 
 See Re London and Westminster Co., 12 W. K. 6 ; In re National Credit, S^c, Co., 
 11 W. E, IGl ; Fortune Co., 10 Eq. 390 ; In re Manchester Co., Ibid. 9 Eq. 644 ; 
 Vron Slate Co., W. N. 1878, 70. 
 
 The following are some exami>les of orders as to service of winding-up 
 petitions. 
 
 Upon motion, &c., for H., who alleged that the sd H. on 23 May, Form 388. 
 1878, preferred his peton in these matters to this Ct for the winding office closed. ~ 
 up the above-named co, and that the registered office of the sd co was 
 closed as by a joint afft of B. & P., filed, &c., appears, and upon reading 
 the sd afft, &c. Let service of a copy of the sd peton having this Ct's 
 order thereon that all parties concerned should attend this Ct on the sd 
 peton on 7 June, 1878, together with a copy of this order on S. and 
 B., two of the directors of the sd co, be deemed good service of the sd 
 peton on the sd co. Star RoUing Mills Co., ZmW., Malins, V.-C, 
 30 May, 1878, 917 B. 
 
 The above is the Form in which the order is very commonly made, but ac- 
 cording to the form given in Seton, p. 162 1, it should run : — " That service of 
 the said petition having, &c., by delivering a copy thereof, together with a copy 
 of this order to of at be deemed, &c." 
 
 Upon motion, &c., and it appearing that the registered office of co. Form 389. 
 
 which was situate at, &c., has been pulled down. Let service of the sd office de- 
 peton on the sd co by serving a cojjy of the same together with a copy molished. 
 
 of this order on B., the secretary of the sd co at , and on one of the 
 
 firm of ^lessrs. M. & ]\L of the same place, the solors of the sd co, l-)e 
 deemed good service of the sd peton. Vroii State Co., M. E,., 27 Feb., 
 1878, B. 341 ; W. K 1878, 70. 
 
 Upon motion, &c. Let service of the sd peton be effected by leaving Form 390. 
 a copy thereof at the last registered office of co, and if such office be ^^^ 
 closed, then by advertising the same in the London Gazette, and two 
 London daily morning newspapers, as provided by the general order of 
 11 Nov., 18G2, made in psuance of the Cos Act, 1862, be deemed good 
 service of the sd peton on the sd co. Investors^ Trust Co., Lopes, J., 
 for M. R., IG August, 1877. A. 173.5. 
 
 On the pt of the above-named co that tlie petr, who is resident at Form 391. 
 
 -, in the kingdom of , out of the jurisdiction of the Ct, may Summons for
 
 422 
 Form 391. be ordered within 
 
 security for 
 costs. 
 
 WINDING-UP. 
 
 - days to give security in the sum of 1. to 
 
 answer costs in these matters, and that in the meantime all proceedings 
 in these matters may be stayed. 
 
 Where the petitioner is resident out of the jurisdiction, application may be 
 made for security for costs ; East Llamgynog Lead Co., W. N. 1875, 81. The 
 amount is in the discretion of the Court. Rules of Sup. Court, Order LV., r. 2. 
 See also supra. Form 3-17. 
 
 Form 392. l^pon motion, &c. Let the petr be at libty to amend the sd peton as 
 
 ~, 7~. he may be advised : And order that the sd petr do have four days from 
 Order givmg •' x ,j 
 
 liberty to the date of this order within which to file his afi't verifying the statemts 
 amend. ^^^ ^^ie amended peton. Home v. Foreign Gas Co., M. E., 4 July, 1877. 
 
 A. 1297. 
 
 Form 393. Upon the peton of L., &c. Let the peton stand over until the 17 May, 
 1878, and let the petr be at libty to amend the sd peton generally as he 
 may be advised. General Meat, dx., Co., Malins, V.-C, 10 May, 1878. 
 A. 940. 
 
 Another. 
 
 Under Ord. XXVII., rule 6, the Court may give liberty to amend any plead- 
 ing- (which inchides a petition, Judicature Act, 1873, s. 100). 
 
 And where any trifling slip has been made, amendment is permitted as of 
 course, but liberty to amend is sometimes given, even where the petition is 
 demurrable. See Buckley, 202 ; Rica Gold Co., 11 C. Div. 42 ; White Star Co.y 
 48 L. T. 815. No need to draw up order now. Order LII., r. 14. 
 
 Order to stand 
 over. 
 
 Form 394. The peton of G. N., claiming to be a creditor of co, on IG Dec, 
 1875, preferred unto this Ct, coming on this day to be heard before this 
 Ct, and upon hearing counsel for the petr and for sd co and for G. S. 
 and other debenture holders opposing the sd peton, and the co by their 
 counsel undertaking not to consent to a winding-up order on any other 
 peton, and not to wind up voluntarily, and to give notice to the petr of 
 any other peton for winding up co which may be served upon them, 
 and in the event of any such other peton being served upon them to 
 consent to the peton being restored to the paper, and that the applicon 
 for a winding-up order by it may be renewed in the same manner as if 
 the peton had not been ordered to stand over. Let the peton stand over 
 until the first peton day in Michaelmas sittings now next. North- 
 western of Montevideo, l^-c., Co., Hall, V.-G., 28 Ap., 187G, B. 1377. And 
 see In re Great Western Coal Co., 21 C. D. 7 09. 
 
 The Court frequently directs (under section 86 of the Act, infra, p. 424), 
 winding-up petitions to stand over. Such orders are commonly made when one 
 of the parties has not had time to answer the aiRdavits of the others, or where 
 it is desired to cross-examine persons who have made affidavits, and occasionally 
 Avhere proceedings for resolving on a voluntary winding-up are being taken. 
 See sujjra, p. 299. 
 
 Sometimes a petition is ordered to stand over for several months, e.g., where 
 the majority of tlie creditors desire it. (S7. Thomas Dock Co., 2 C. D. 116. In
 
 WITHDRAWAL OF TETITIOX. 
 
 423 
 
 such cases the order is generall}"- made on special terms^ as in Form 391. See Porm 394 
 
 further, Buckley, ISO. '- 
 
 See, however. Chapel House Colliery Co., 2-1 C. Div. 257, as to dismissing- peti- 
 tion where majority of creditors oppose. 
 
 Upon the peton of , iH'eferred unto this Cfc, praying that co Form 395. 
 
 mio-ht be wound ui) under the provisions of the above-mentd Acts, and r~; 7~. 
 
 , . 1 . 1 • 1 1 T Order giving 
 
 the petrs not wishnig" to proceed with the sd peton, and the co waiving liberty to 
 all costs : This Ct doth order that the petrs be at libty to withdi-aw ^^'tli^l™^'- 
 the sd peton. [Langliam Skathig Rinlc Co., Limtd, Bacon, V.-C, 4 Xov., 
 187G. B. 1817. 
 
 Where a winding-up petition has been presented the petitioner, imtil a wind- 
 ing-up order has been made, is dominus litis, and therefore can submit to an 
 order dismissing or obtain liberty to withdraw his petition. In re Home Assu- 
 rance Assoc, 12 Eq. 59 ; Be Times Life Assurance Co., 9 Eq. 382. Accordingly 
 the company very commonly comes to terms with the petitioner, e.g., that his 
 debt shall be paid or secured, and that he shall Avithdraw the petition. In 
 such case the company usually agrees to pay the costs, and where the jjetitioner 
 was justified in presenting the petition, he is entitled to require payment 
 thereof. Iti re Alliance Co., W. N. 1SG7, 218 ; Re Flagstaff Co., 20 Eq. 268, and 
 supra, p. 379. 
 
 Where a petition is withdrawn or dismissed by consent, creditors and mem- 
 bers appearing and opposing are entitled to one set of costs ajDiece from the 
 petitioner. In re Patent Cocoa Fibre Co., 1 C. D. 617; In re London and 
 Suburban Bank, 19 W. R. 88. Unless such appearance is unjustifiable. Walk- 
 ham United Mines, W. N. 1882, 134. But supporters not entitled to costs. Be 
 Jahlochkoff Co., W. N.,1883, 189 ; 28 S. J. 70; Union Trust, 78 L. T. 227. 
 
 Accordingly, where a petitioner agi-ees to withdraw, he should insist on being- 
 indemnified by the company against these costs. See further Buckley, 200. 
 
 In arranging terms of withdrawal, a petitioner should take care that his costs 
 are paid down or secured, and should not submit to an order merely dismissing 
 the petition and directing the company to pay the costs, for in such case, if the 
 company goes into liquidation before the costs are jjaid, the petitioner will have 
 to go in and prove for them, ranking as an unseciired creditor. 
 
 Upon the peton of B., of, &G.[windi/iff-i/j) pctilioti] : And it appearing Form 396. 
 that the debt of the petr has been provided for. Let by consent the orfeTby ^ 
 peton be dismissed, And Let the petr's costs of and incident to the sd consent dis- 
 peton be taxed by, &c., as between solor and client, and be pd by the co °^^^®^°^'- 
 to the petr, and if such costs when taxed do not amount to 100/. the 
 23etr by his counsel undertaking to apply the excess of the 100?. already 
 pd to the petr towards satisfon of the first of the three promissory notes 
 given by the sd co to the petr which shall become payable after the 
 taxing-master's certificate shall have been filed, And if such costs when 
 taxed shall exceed the sd sum of 100/. the balance of such costs is to be 
 pd by the sd co to the petr on the 15th of December instant. Govern- 
 ment Securitij Fire Insurance Co., 22 June, 1877. A. 1218. 
 
 Upon the peton of M. [for compulsory order^, and upon hearing Form 397. 
 counsel for the petr and for the sd co, and the petr by his counsel Order that 
 admitting that the claim of the petr against the sd co has since the sd compani- pay 
 
 i a costs, debts 
 
 peton was preferred been satisfied : This Ct doth not think fit to make paid before 
 
 hearing.
 
 424 WINDING-UP. 
 
 Form 397. any order on the sd petou, but doth order that the sd co do pay to tlie 
 petr his costs of the sd petou, aud such costs to be taxed, &c. British 
 Alliame Corporation, Mahns, V.-C, 17 May, 1878. A. 2124. 
 
 Where the petitioner's debt is paid before the hearing, but the company mil 
 not pay his costs, he should apply for his costs at the hearing, and an order 
 will be made as follows. In re Alliance Co., W. N. 1S67, 218 ; Re Flagstaff Co., 
 20 Eq. 268. 
 
 Form 398. Upon the petou, &c., and the petrs by then- counsel admitting that 
 Anoth r wiier ^^^^ debts and costs of execution due from the sd co to the petrs had 
 creditors since been pd : This Ct doth not think fit to make any order on the 
 
 oppose. g^i peton, but doth order that the sd co do pay to the petrs and to 
 
 and creditors their costs of and occasionecl by the sd peton : such 
 
 costs to be taxed by the taxing-master, who is to allow to the sd creditors 
 such costs only as would properly have been incurred by such creditors 
 respively if all such creditors had been represented by the same counsel 
 and solors. Association of Land Financiers, Malins, Y.-C, 25 June, 
 1878. B. 1408. 
 
 For order discharging winding-uiD order except as to payment of costs see 
 Towcaster S( Co., M. E., 30 May, 1878, B. 1195. The order recited the winding- 
 up order, that petitioner since paid, that order not advertised, that other 
 creditors who appeared consented. Query ultra vires. See Aston Co., 45 L. T. 
 Ij7G, where winding-up order discharged. 
 
 Form 399. Upon the peton, &c., Let the sd peton stand dismissed, with costs to 
 Order be taxed by the taxing-master and pd by tlie petrs P. to the co and to 
 dismissing and 2Q others appearing as afsd, and to and , Ijut only 
 
 one set of costs is to be allowed to the sd shareholders. Malpaso Gold 
 
 Co., Hall, Y.-C, 17 Jan., 1879. B. 122. 
 
 See section 8G of the Act of 1862, as to dismissing. 
 Form 400. Upon the peton, &c. Let the sd petou stand dismissed. And order 
 
 Order dis- that the sd order \_a2)pointing prov. liq.'] of 18 September, 1876, be 
 missing where dissliarged. And order that notwithstanding the sd order, the chief 
 liqiiiilator. clcrk of the judge and the sd prov. off. liq. be' at libty to sign a cheque 
 
 in favour of the sd co, or of j\Ir. , their solor, for any balance 
 
 standing to the credit afsd. Milan Tramway Co., Li mid, Field, J. (for 
 Hall, Y.-C), 17 October, 187G. B. 1717. 
 
 Where the petition is dismissed the petitioner is usually ordei'ed to paj- the 
 costs of the company and one set of costs apiece to the shareholders and 
 creditors opposing. In re European Banking Co., 2 Eq. 521 ; Diamond Fuel, 
 W. N. 1878, 11. 
 
 But sometimes a different oi'der is made. Re Anglo-Egypfian Co., 8 Eq. 880 ; 
 New Gas Co., 5 C. D. 703. 
 
 Form 401. Upon motion, itc, by counsel for W. & F., the exs of the will of 
 Revivor on C F., deceased, who alleged that on the 24th of Dec, 1874, the sd 
 application of Q_ Y. presented his peton for the winding up_of the sd co under, Szc.
 
 ORDER TO WIND UP. 405 
 
 and that the sd petr died on the 11th of May, 187G, having by his hist Eorm 401. 
 will and testamt appointed the sd W. & F. exs thereof, who duly proved petitiouers' 
 the same on the 3rd of June, ISTC. Let the sd peton and the pro- executors, 
 ceedings thereunder be carried on and prosecuted by the sd W. & F. in 
 like manner as the same might have been carried on by the sd F. in ease 
 he had not died. Tecoma Silver Mininfj Co., Hall, V.-C, 2G July, 1877. 
 B. U7;J. 
 
 See also Dijnevor Collieries Co., W. N. 1878, 199, where a similar order was 
 made, the i^etitioner having died before the hearing of the petition. And see 
 Ee Roice, 27 S. J. 104. 
 
 Orders for GompuJsorij Winding-up. 
 
 The following is the usual form of order : 
 
 Upon the peton of A. [or, of the above-named co] a creditor \_or, a Form 402. 
 
 contriby of the above-named co] on the day of preferred winding-up 
 
 unto Her Majesty's High Ct of Justice, and upon hearing counsel for order, 
 the 23etr and for the respondents, the above-named co, and for B., a 
 creditor of the sd co, and upon reading the sd petn, an aflFt of A., filed 
 
 the day of , verifying the sd peton, an aflFt of, &c., the London 
 
 Gasette, of the day of , the Times newspaper, of the day 
 
 of [enter any other neivspapers], each containing an advertisemt of 
 
 the sd peton. Let the above-named Co, Limtd, be wound up 
 
 by this Ct imder the provisions of the Cos Acts 1862 and 18G7. 
 And let the petr and the sd co and the sd B. be allowed their costs of 
 and relating to the peton out of the assets of the sd co, such costs to be 
 taxed by the taxing-master. 
 
 If several creditors and contribiitories appear and support the petition, the 
 order as to costs will be as follows : 
 
 And let the sd A., and the sd co, and the sd B., C, D., and E., be Form 403. 
 allowed their costs of and relating to the peton out of the assets of the " 
 
 sd CO, such costs to be taxed by the taxing-master, who is to allow only 
 
 one set of costs between the sd and [ihe creditors'], and only 
 
 one set of costs between the sd and [tlte contribs']. 
 
 The usual order as to costs where a winding-ui^ order is made, gives the 
 petitioner and the company, the contributories and creditors suj^ijorting the 
 petition, their costs, but only one set among the contributories and one among 
 the creditors. In re Humber Iron Works Co., 2 Eq. 15 ; In re European Banking 
 Co., 2 Eq. 521. See further Buckley, 221. 
 
 Where a provisional official liquidator has been appointed before the hearing 
 the order sometimes provides as follows : 
 
 And it is ordered that Mr. , the prov. off. liq., be continued as Form 404. 
 
 such prov. off. liq., until the appointmt of an off. liq. " ' 
 
 But there can be little doubt that such provision is in general unnecessary. 
 It is now settled that a receiver who has been appointed as a " full receiver"
 
 436 WINDING-UP. 
 
 Form 404. — that is, not as an " interim receiver," remains receiver until discharged. 
 
 ' Seton, 412 ; Cruse v. Smith, 24 Sol. J. 121. And the same principle seems to 
 
 apply in the case of a provisional liquidator. For orders discharging provi- 
 sional liquidators, see infra. Form 418, et seq. 
 
 Where a provisional liquidator has been appointed upon the application of 
 the petitioner, the winding-up order generally provides for the " costs of and 
 relating to the said petition (including the costs of and conseq\ient upon the 
 appointment of the said as svich ijrovisional liquidator." 
 
 Form 405. 
 
 Order on two 
 petitions. 
 
 Very commonly the order is made on two ^Jetitions thus : 
 
 JJ-pon the petoii of E. W. S., of , a creditor of the above-named 
 
 CO, on the 3rd day of April, 187G, preferred unto this Ct, and upon the 
 
 peton of E, P., of , another creditor of the above-named co on the 
 
 I2th day of April, 187G, preferred unto this Ct, and upon hearing 
 counsel for the respive petrs for the above-named co, and for L. C. A., a 
 creditor, and uj)on reading the sd petons respively, an aflFt of the sd 
 R. W. S. filed the 6th of April, 1876, verifying the first-mentd peton, 
 and an aflFt of the sd A . P., verifying the secondly -mentd peton, the 
 London Gazette, the Times newspaper, and the Standard newspaper, all 
 of the l()th day of April, 1876, each containing an advertisemt of the 
 first-mentd peton, and the London Gazette, &c., each containing an 
 advertisemt of the secondly-mentd peton, an aflFt of Pt. W. S., filed the 
 24:th day of April, 1876, an afft, &c., a joint att't of A. A. R. and 
 J. C. W., filed, &c., and two several affts of the sd L. C. A., filed 
 respively, &c. Let the B., &c., Co, Limtd, be Avound up by this Ct 
 under the provisions of the Cos Act, 1862 and 1867, and let the 
 petrs respively, and the sd co, and the sd L, C. A. be allowed their costs 
 of or relating to the sd petons respively, out of the assets of the sd co, 
 such costs to be taxed by the taxing-master. British Guardian Life 
 Assurance Co., Hall, V.-C, 2nd May, 1876. A. 951. 
 
 Form 406. Upon the peton of FT. & M. on the 31st Jan., 1879, preferred 
 Order allowing [windintj-up petonj, and upon hearing counsel for the petrs, and for S., 
 costs of second ^ creditor, and upon reading the sd peton, and it being alleged that an 
 order dated 10 Feb., 1879, has been made for the compulsory winding 
 up of the sd CO, and upon reading the sd order : This Ct doth not think 
 fit to make any order on this peton, but doth order that the costs of the 
 sd petrs, and of the sd S. of this applicon be costs in the winding- 
 up of the sd CO. Medium for sales and exchanges, Hall, V.-C, 14th 
 Feb., 1879. B. 427. 
 
 As to costs of concurrent jjetitions, see supra. In some cases where a wind- 
 ing-up order has been made on one petition, the costs of a second petition sub- 
 sequently coming on will be allowed as in the above case, and in Re British and 
 Foreign Gas Co., 13 W. E. 649 ; and Re Marron Bank Co., 88 L. T. 141 ; W. N". 
 1878, 12. 
 
 But see as to costs incurred by second petitions after notice of first. Re 
 General Fin. Bank, 20 C. D. 276.
 
 TEAXSFEE OF PETITIOX. 437 
 
 Upon the petoii of H. this day preferred unto this C't, and the solors Form 407. 
 
 for the above-named co, parties having- subscri])ed the sd peton, Order trans- 
 
 siffnifyinj? their consent to the praver thereof. Let the above-mentd fen-ing peti- 
 ° "^ ° ^ * tion by con- 
 
 matters marked for the Master of the RoUs be transferred to the V ice- sent. 
 
 Chancellor Sir Charles Hall, and let the same when so transferred be 
 
 hereafter considered as matters originally marked for the Vice-Chancellor 
 
 8ir Charles Hall, provided that no order made by the Master of the 
 
 Rolls be varied or reversed, otherwise than liy the Ct of Appeal. British 
 
 Guardian Life Assurance Co., Limfd, Lord Chancellor, 11th May, 187<;. 
 
 A. 83G. See also Seton on Decrees, 318. 
 
 AVhen a petition to wind up a company has been presented, another petition 
 for the same jrarpose subsequently presented and marked for some other judge 
 -will be ordered to be transferred to the judge with whose name the first petition 
 is marked. In re West Hartlepool Ironv-orlcs Co., 10 Ch. 629. In this case (it 
 was before the Jiidieature Act) the transfer was ordered by the L.JJ. on motion 
 for the first petitioner. 
 
 Since the Judicature Act, the Court of Appeal has no jiirisdiction to order a 
 transfer. In re Boyd's Trusts, 1 C. Div. 12. Transfers are now made under 
 O rule 1, by the Lord Chancellor. See Memorandiini in 1 C. Div. 41, 
 
 as to the practice. 
 
 Where all parties consent, the application can be made by petition subscribed 
 by all and delivered to the secretary of the L. C. ; but "if all parties will not 
 consent, the application must be by motion to the L. C." The secretary will 
 inform the party desirous of moving where and when he can move, and the 
 notice of motion will be framed accordingly. 
 
 The notice of motion will be as follows 
 
 Take notice that the Lord High Chancellor of Great Britain will be Form 408. 
 
 moved on day, the day of at , or so soon thereafter ^^^^^^^ ^f 
 
 as counsel can be heard, by Mr. , as counsel for the petrs in these motion for 
 
 matters, [or as fl/e case may 5e] that these matters may be transferred ^^^^ ^^' 
 to his Lordship, Mr. Justice , and when so transferred may be con- 
 sidered as matters originally marked for his Lordship, Mr. Justice . 
 
 Dated, &c. 
 
 As to transfer of actions after a winding-up order see infra. Form GOO. 
 
 Upon, &c. \_Hsual wincliag-vp order'] : And it is ordered that all Form 409. 
 further proceedings in the Avinding-up of the sd co he cai'ried on in the Reference to 
 County Ct of Suffolk, hulden at Ipswich. Ijmcich Public Hcdl Co., County Court. 
 Jessel, M. R., 1 G Jan., 1875. B. 59. 
 
 By section 41 of the Companies Act, 1SG7, the Chancery Division may, upon 
 making an order for winding up a company, direct all subsequent proceedings 
 to be had in a County Court ; and by section 42 may transfer the winding-up 
 from one County Court to another. 
 
 The reference to the County Court is sometimes made at the same time as the 
 order to wind up, and sometimes upon an application subseqiiently made at 
 Chambers. London and Westminster, Sfc, Co.. 17 L. T., N. S. oo9. The former 
 is the usual course now.
 
 428 
 Form 410. 
 
 Another. 
 
 Form 411. 
 
 Notice of 
 motion or 
 summons for 
 the appoint- 
 ment of a 
 provisional 
 liquidator. 
 
 WINDING-UP. 
 
 Upon the pcton, &c. \_icinding-U2) order'] : And costs to be taxed and 
 pd out of the assets of the sd co, and let all subsequent proceedings 
 herein other titan .such taxation of costs be had in the County Gt of 
 Crlamorganshire holden at Swansea. 3Iorriston's Patent, dr., Co., M. E,., 
 27 Jan., 1877. 189 B. 
 
 On the pt of A., the petr in these matters [or, of the above-named 
 
 co], that B., of , or some other person may be appointed prov. off'. 
 
 liq. of the above-named \_or sd] co. 
 
 The Court is empowered at any time after the presentation of the petition, 
 and before the fii'st appointment of liquidators, to appoint provisionally an 
 ofificial liquidator. Section 85 of the Act. 
 
 The appointment may be made on application by summons. See Rule 15. 
 
 But the application is veiy commonly made by motion, especially (a) where 
 the company is petitioner or assents, in which case the application can be made 
 ex parte, and (6) where the assets are in danger, or the matter is for some other 
 reason j^ressing. 
 
 It is usual to apply for the appointment of some person by name, and the 
 application, whether by motion or summons, should be supported by an affi- 
 davit as to the circumstances which render the appointment desirable, and as 
 to the fitness of the proposed liquidator. 
 
 In a pressing case the order will be made subject to the production of an 
 affidavit of fitness to the registrar. 
 
 If the comxDany makes, consents to, or is shown not to oppose, the application, 
 the appointment is almost a matter of course, but if the company opposes, 
 special circumstances must be shown, e.g., insolvency, or danger to assets. 
 Clifoden Benefit Building Society, 3 Ch. 462; Emmerson's case, 2 Eq. 231 ; Mar- 
 seilles Extension Co., W. N. 1867, 68 ; Hammersmith Town Hall Co., 6 C. D. 112. 
 
 The order usually directs the liquidator to give security by a certain day, 
 but sometimes an undertaking is given by the proposed liquidator, or by the 
 petitioner or his solicitor, that the liquidator shall give security forthwith, or 
 within say fourteen days. Pearson, J., upon api)ointing a provisional official 
 liquidator adjourns the matter to chambers with a view to his giving security. 
 See Order L.,r. 17 ; Be Hoyland Co., 28 S. J. 152. Where the application is not 
 made by or with the approval of the company, notice of motion or summons 
 should be served on the company. If the matter is urgent, liberty to serve 
 short notice of motion can be obtained. Occasionally the provisional liquidator 
 is appointed without being required to give security. This is allowed by Rule 
 15. Sometimes the appointment is made at the same time as the winding-up 
 order. The Court may, by the order appointing a provisional official liquidator, 
 limit and restrict his powers. Section 96 of the Act of 1862. This power is 
 g'enerally exei'cised. See Forms 413 et seq., infra. 
 
 If the provisional liquidator is to carry on the company's business, evidence 
 should be forthcoming to show that it is desirable so to do. The fact that 
 there are contracts on hand, or that the company's difficulties are only tem- 
 porary, and that serious loss would be caused by stopping the business, or that 
 the goodwill is valuable, and would be lost by stopping, afford ground for 
 authorising the liquidator to carry on the business, at any rate to some extent. 
 If the provisional liquidator is authorised to carry on the business, it may 
 be desirable to obtain liberty to open an account with a loc 1 bank where the 
 business is in the country. See Form 414, infra. 
 
 The rules as to official liquidators contained in the General Order of 11 Nov., 
 1862, apply to provisional liquidators. Rule 59. 
 
 Accordingly as to giving security, see infra. Form 431 et seq. ; as to accounts, 
 see infra. Form 412 et seq., and 440 et seq.; as to remuneration, see infra. 
 Form 453 et seq.; as to discharge, see infra. Form 418 et seq.
 
 APPOINTMENT OF PEO VISIONAL LIQUIDATOE. 409 
 
 Provisional liquidators frequently make applications to the Court, e. g., to Form 411. 
 authorise sales, to restrain actions or proceedings against the company or its 
 assets, to authorise the borrowing of money to carry on the business, &c. 
 
 Upon the applicon of and , both of , creditors of the Form 412. 
 
 above-named co, the petvs in the peton presented in these matters on Order on 
 1 Sept., 1876, by summons dated the 8 Sept., 187G, and upon hearing summoiis 
 
 the solors, &c. Let M., of , public accountant, be appointed p^'q°(°jq°j^ 
 
 provisionally otf. liq. of the above-named co. And Let the sd M., on or liquidator. 
 before 9 Xov., 1876, give security, to be approved by the judge. And 
 Let the sd M., on 2 May, and 2 Xov., 1877, and the same days in 
 each succeeding year, leave his accounts at the chambers of the judge. 
 And Let all monies to be received by the sd M. be pd Ijy him into the 
 Bank of England to the credit of the account of the prov. off. liq. of 
 sd CO within seven days after the receipt thereof. Jlila/i Tramicay Co., 
 Limid, Hall, V.-C, 1.5 Sept., 1876. B. 1611. 
 
 Order to give security " forthwith " is now not unusual where scciu'ity not 
 to be given before order drawn up. 
 
 \_A2)2)ointnit of prov. off. liq.^ And this Ct doth hby limit and restrict Form 413 
 
 the powers of the sd J. C. to the following acts (that is to say) to taking Oi-der restrict- 
 X)OSsession of and protecting the assets of the sd co until further order, ^^s powers. 
 
 The above is the form not uncommonly used in the absence of special 
 circumstances . 
 
 Appoint 2)rov. off. liq., Limit, &c. — Form 414. 
 
 1. To taking possession of and protecting the assets of the co. Liberty to 
 
 2. To carrying on the business of the co until further order. ^"^I'^y "^'^ 
 
 AIT • T T- 1-n T 1 • business:. 
 
 3. And to drawing and endorsing l)ills, and to advancing money to 
 
 customers, and to do such other things as may Ije necessary for canying 
 on the business, without the sanction of the judge. 
 
 Order that the sd N., as such prov. oflF. Hq. be at libty to open an 
 account at the Bank, for the pposes of the co. 
 
 And order that all monies which may be received by him as such 
 prov. off. liq. be pd into such account, and that he be at libty to draw 
 on such account for aU monies required for carrying on the sd business. 
 
 And order that if and whenever the balance at the sd Bank exceeds 
 500?., the excess shaU forthwith be pd by the sd X. into the Bank of 
 England to the credit of the prov. off. Hq. of the co. South Eastern 
 Warehouse Co., Chitty, J., 7 Aug., 1882. See infra, p. 449. 
 
 Where liberty to carry on the business is given, it is generally desirable to 
 give liberty to open a local banking account. 
 
 Sometimes this is forgotten when the order is obtained, and a further 
 order becomes necessary. The following is an example : — 
 
 "Order that notwithstanding the order of 2 July, the provisional official 
 liquidator be at liberty to continue the account ah-eady opened by him -natli 
 
 Messrs. bank at Derby for the purpose of paying wages and carrying on 
 
 the business of the company in accordance with the said order, but so that 
 whenever the balance to the credit of such account shall exceed by more 
 than 30?. the sum of 250?., the excess shall forthwith bo paid into the Bank of
 
 430 
 
 "WINDING-UP. 
 
 Form 414. Eng-land to the credit of the provisional official liquidator of the company." 
 — Derbyshire Wagon Co., M. E., 12 July, 1879. And see infra, p. 449. 
 
 Form 415. Upon motion for 
 
 the petrs, &c. Appoint W. prov. off. liq. 
 
 Liberty for 
 provisional 
 liquidator to 
 cajTy on 
 business and 
 advance 
 money. 
 
 Form 416. 
 
 Provisional 
 liquidator to 
 «arry on 
 appeal. 
 
 [usual directions'], And Limit and restrict the powers of the sd W. as 
 such prov. off', hq. to the following acts, namely, to carry on and continue 
 the business of co so far as may be necessary for carrying out and com- 
 pleting existing contracts, and keeping the co's furnaces in blast, and 
 for that ppose to raise a sum not exceeding iOOOl. per week at a rate 
 not exceeding 5 p. c. p. a. with the usual bankers' commission, by the 
 sale of or upon the security of the co's assets, and to make such advances 
 himself: And order that for any advances so made the sd ^Y, do have 
 a first charge upon the undertaking of the co, subject to the incum- 
 brances now existing thereon. Hopkins, Gillies, & Co., M. R., 15 May, 
 ]fi79. A. 953. 
 
 As to the position of a receiver and manager who advances without order, 
 see Ux parte Izard, 23 C. Div. 75. 
 
 Upon the peton, &c. [ust/al vinding-iq) order']. And appoint G. 
 the secretary of the sd co prov. oflP. liq. of the sd co for the ppose only 
 of carrying on the appeal by the sd co against an order of Mr. .Justice 
 ]\[anisty in the action of Gihh v. \_the co] which is now pending, but the 
 sd Gr. is not to do any act without the leave of the Judge in Chambers 
 first obtained. Great Soutlieni Mijsore Co. Chitty, J., 3 April, 1882. 
 
 For order appointing provisional official liquidator to i-eceive costs due to the 
 company in respect of a petition which was dismissed, see Langham's Skating 
 Rink, G C. D. 102. M. E. 18 June, 1877. B. 1150. 
 
 Form 417. 
 
 Order directing 
 provisional 
 official liqui- 
 dators to leave 
 account and 
 for taxation 
 and i5ayinent 
 of costs. 
 
 Upon the applicon of B. & L. the off', liqs., etc. ; Let L., H., and B., 
 who by the sd order of 5 Feb., 1877, were appointed prov. off. liqs. of 
 the sd CO without security, on or before 30 June, 1877, or subsequently 
 within 4 days after the service of this order on them, leave in the 
 chambers of the judge their account as such prov. off. liqs.. And Let 
 the costs, charges, and expenses of the sd L., H., and B. as such prov. 
 off. liqs. properly incurred be taxed and the amount thereof be pd out of 
 the assets of the sd co as and when the judge shall direct, but in taxing 
 such costs the taxing master is to have regard to any sum or sums of 
 money which may have been received in respect of costs of compromises 
 come to with any contribs or otherwise, And Let the sd L., H., and B. 
 pass their said account, and pay the balance, if any, proved due from 
 them into the Bank of England to the credit of the off. liq. of the sd co 
 within 7 days after the date of the chief clerk's certificate of j^assing 
 such account, and thereupon let them be discharged as such prov. off. 
 liqs., And in the event of a balance being found due to the sd L., 11., 
 and B. on taxing the sd account, let the same be pd to them out of the 
 assets of the sd co as and when the judge shall direct. Hooper's Telegrapli 
 WorU, M. R., 31 May, 1877. A. 1037.
 
 APPOIXT:\rEXT OF PE0VI8I0XAL LTQUIDATOE. 
 
 431 
 
 Upon the applicou of H. the prov. off. liq. <fec., Let the sd H. be dis- Form 418. 
 charged from the office of prov. off. liq. of the sd co, and let the sd bond, order dis^ 
 
 dated, &c., entered into by him, together with The Co, Limtd, as charging 
 
 his sm-eties, be vacated, And Let it be referred to the taxing master to j" u\'i^to|! 
 tax the costs of the sd prov. off. liq., and let him be at libty to apjDly for 
 paymt thereof when any fnnds are available for that ppose. General 
 Machinerij Purcluisc Co., 4 June, 1877. A, 1034. 
 
 For order appointing provisional official liquidator to Le official liquidator, 
 and directing him to i^ass his accounts as provisional official liquidator, and 
 then that recognisance be vacated, see British Farmers, ^'c, Co., 8 May, 187G. 
 A. 803. 
 
 Upon the apphcon of C, the prov. off. liq. of the aljove-named co, Form 419. 
 and upon hearing the solors for the ai^plicant and for the off. liq. of sd Order dis- 
 CO, and upon reading an order, &c., an afft of the applicant filed, &c., charging 
 whereby it appears that the applicant has not received or pd any sum or liquidator 
 sums of money as such pro^'. off. liq., Let the applicant be discharged ^^'^° has 
 as such prov. off. liq., and let the recognisance, &c., be vacated. Tax the received nor 
 costs, charges, aud expenses of the applicant as prov. off. lirj. properly v^^'^ money, 
 incurred fi'oni the date of his appointmt up to and including this order, 
 and also the costs of the petr of the applicon to appoint the sd prov. 
 off. liq. and consequent thereon, And let such costs, charges, and expenses 
 be pd out of the assets of the sd co as and when the judge shall direct. 
 National Funds Ass. Co., Bacon, V.-C, 21 April, 1877. B. 1)28. 
 
 Upon the applicon of W., late prov. off. liq. of co, and upon hearing Form 420. 
 the solors for the applicant and for C, the liq. of the sd co, and upon Order for 
 reading the order dated 5 June, 1877, the office copy of the recognisance payment to 
 hereinafter mentd, the chief clerk's certificate, dated 8 August, 1877, ^^gionai" 
 Let the sd C, the liq. of the sd co, out of the assets of the sd co pay to liquidator of 
 the sd W. the smn of 53/. 19.s. Id. the balance by the sd certificate j'J!^\^'„gg 
 certified to be due to him as prov. off. liq. of the sd co. And Let the 
 recognisances dated, &c., and entered into by, &c., be vacated. LjjtfJes 
 Iron Aiiency, Limfd, August, 1877. B. 1488. 
 
 In the above case a supervision order had been made after the appointment 
 of a provisional liquidator. 
 
 On the pt of A. the petr in the order in these matters dated the Form 421. 
 
 day of named, to proceed with the winding up of the aljove-named Summons to 
 
 co under the sd order. proceed. 
 
 Under Eule 7, a copy of the winding-up order, certified to be a true copy 
 thereof as passed and entered, is to be left by the petitioner at the chambers 
 of the judge, within ten days after the same has been passed and entered. 
 And upon such copy being left, a summons as above is to be taken out and 
 served upon all parties who may have appeared upon the hearing of the petition. 
 The certificate should be written at the foot of the copy order thus : —
 
 432 
 
 'WINDING-UP. 
 
 Form 422. 
 
 Certificate 
 that copy 
 order true. 
 
 Form 423. 
 
 "We [or, I] cerfcify, that the above is a true copy of the original order 
 
 as j)assecl and entered. Dated this day of — — , 18 — . 
 
 A. & B., of , 
 
 Solors for the petr. 
 
 As to what may be done upon the return of the summons, see Rule 7 above 
 mentioned. Upon the return the chief clerk usually fixes a day for the 
 appointment of the official liquidator, and directs notice thereof, and also of 
 the winding-up order to be advertised, and settles and signs the forms of 
 advertisement, and the proceedings are then adjourned. 
 
 In the High Ct of Justice. Chancery Division. In the matter of the 
 
 Go's Acts, 1862 and 1867. And in the matter of the Co, Limtd. 
 
 By an order made in the above matters by Mr. Justice , dated 
 
 the day of , on the peton of of ■ , it was ordered [Jiere 
 
 set out the ivhole of the order in the past tense']. Dated this day 
 
 of . 
 
 N". G., 15, Street, in the City of London, 
 
 Solor for the petr. 
 
 Under Rule 6, every order for winding iip by the Court, or subject to supervi- 
 sion, is within tv/elve days after the date thereof, to be advertised by the 
 petitioner once in the London Gazette, and is to be served iipon such jjersons 
 (if any), and in such manner as the Court may direct. The signature of the 
 solicitors must be attested, and the original order or an office copy has to be 
 produced at the Loudon Gazette office. The advertisement must be ■m.-itten on 
 stamped forms. 
 
 As to staying advertisements pending an appeal, see Form 660. 
 
 Form 424. Upon motion &c., for C, the petr named in the order made on the 
 6th May, 1876, for the Trinding up of the above-named co, and upon 
 reading the said order, This C*t doth order that the time limtd for the 
 advertisemt of the said order, dated the 6th May, 1876, in the London 
 Gazette, pursuant to the general order of this Ct, be extended to the 
 10th of May, 1876. Percy, cj-c, Co., Limtd, Bacon, Y.-C, 17 May, 1876. 
 B. 880. 
 
 Sometimes by accident or otherwise the advertisement is not inserted within 
 the twelve days. In such case an order as above can be obtained on ex i^arte 
 motion or summons. The order need not be drawn up. Order LII., r. 14. An 
 affidavit explaining the omission is occasionally required. But according to 
 present practice the registrar without any application to the Court by consent 
 inserts, if requisite^ in the draft order, a paragraph extending the time. 
 
 Another plan commonly adojjted where the order has not been comi^leted is 
 to apply for liberty to post-date the winding-up order. Borcase's Society, 
 11 W. R. 459 ; Wasland Co., W. N., 1876, 279. 
 
 Order 
 
 extending 
 
 time for 
 
 advertising 
 
 winding-up 
 
 order. 
 
 Form 425. 
 
 Advertiseiuent 
 of time fixed 
 for appointing. 
 
 In the matter, &c. 
 
 Notice is hby given, that Mr. Justice has fixed day, 
 
 the — day of [188 ] at — o'clock in the noon, at his 
 
 Chambers, in the Eoyal Cts of Justice, Strand, London [or as the case 
 may 6e] as the time and place for the appointmt of an off. liq. of the 
 
 above-named co. Dated this — th day of . 
 
 A. B., Chief Cleric.
 
 ArPOINTING OFFICIAL LIQUIDATOR. 433 
 
 See s. 92 of the Act, and Eules 8 and 9. The original advertisement signed Form 425. 
 by the chief clerk must be sent to the London Gazette office. • 
 
 It is not regular to appoint an official liqiiidator on the hearing of the petition. 
 General Financial Bank, 20 C. Div. 276. 
 
 The usual course is to appoint the liquidator in chambers after advertise- 
 ment, as above. G-enerally the time for appointment is fixed, and the notice 
 signed by the chief clerk, upon the return of the summons to proceed. See 
 supra. Form 421. 
 
 At the time fixed the parties attend, and if only one person is proposed, he 
 will, if a proper person, be ajDpointed ; if more persons than one are proposed 
 the preference is generally given to the nominee of the petitioner, but Peai'son, J. 
 does not follow this rule. Hoyland Co., W. N. ISSi, 13. See fui-ther Buckley, 
 211. For form of proposal, see Form No. 7 in Schedule to Eules : this form can 
 easily be altered so as to suit the case of creditors. 
 
 Evidence must be provided as to the fitness of the proposed liquidator, and 
 the following affidavits will serve as examples. It is generally desirable to 
 have more than one affidavit of fitness. 
 
 Where a pi-oper person has been chosen in chambers, an order can be made 
 appointing him official liquidator, and directing him to give security within a 
 time limited, or the appointment may be postponed until after he has given 
 security. The last-mentioned i^lan is that most commonly ado]Dted. See 
 further, infra, note to Form 427. 
 
 1. I have for more than [15 years] last past known as being well Form 426. 
 
 acquainted with W., of , public accountant, the person proposed to Affidavit of 
 
 be appointed off. liq. of the above-named co. fitness. 
 
 2. The sd W. is a member of the finn of , public accountants, 
 
 and has been a member of such firm for the whole period dm'ing which 
 I have been acquainted with him. 
 
 3. The sd W. is a person of respectability and integrity and of good 
 credit, and in my judgm.t he is a fit and proper person to be appointed 
 off. liq. of the co. 
 
 Upon the applicou, &c., and upon reading, &c., the judge doth hby Form 427. 
 
 appoint R., of, &c., off. liq. of the above-named co. \_If security 1ms not Order appoint- 
 
 heen nivm add, and it is ordered that the sd R. do (forthwith, or), on or jps ?fficial 
 , „, , . -,1 -, !> ^ L^ liquidator, 
 
 before the day of next, give security to be approved of by the 
 
 judge.] And it is ordered that the sd R. do, on the day of , and 
 
 day of , 18 — , and on the same days in each succeeding year, 
 
 leave his accounts at the chambers of the judge. And it is ordered that all 
 
 monies to be received by the sd R. l^e pd by him into the Bank of England 
 
 to the credit of the account of the off", liq. of the sd co within seven days 
 
 after the receipt thereof. [//^ case t/co or more off. liqs. are appoinicd 
 
 add, and the judge doth declare that the following acts required or 
 
 authorised by the above statutes to be done by the oft', liq., may be done 
 
 by either [or, any one, or, two] of the off", liqs. hby appointed, that is to 
 
 say, [describe the acts'] ; and that all other acts so required or authorised 
 
 to be done, be done by both [or, all] the off. liqs. hby appointed.] 
 
 The above is the form of order appointing an official liquidator given in the 
 third Schedule to Eules. According to present practice the official liquidator 
 
 F F
 
 434 
 
 WINDING-UP. 
 
 Form 427. usually gives security before the order is drawn up, as in the case of a receiver 
 
 (see Order L., rr. IG, 17, and Re Hoyland Co., 28 S. J. 152, 123, and Form 428, 
 
 infra), or is ordered to give security " forthwith." 
 
 The order usually provides for half-yearly accounts, but orders providing for 
 yearly caccounts are not uncommon. See Association of Land Financiers, Malins, 
 V.-C, 26 Nov., 1878. 2132. Care should be taken as soon as the order is entered 
 to open an account at the Bank of England. This is done by notice signed by 
 the three chief clerks of judge and by official liquidator. See Form li in 
 Schedule to Rules, and Rules 11, 32, 36 — 14. Office copy of order to be left at 
 Bank, Rule 11. 
 
 Form 428. Upon the applicon of S., &c., and upon reading the aflFt, &c., and the 
 Appointment rccognisance dated the 9th of Feb., 1878, entered into by AV. and A. and 
 where .security M. as his Sureties, wliich recognisance has been approved by the jndgc 
 and duly enrolled. Let the sd W. be appointed off. liq. of the above- 
 named CO, and \_usual directions']. River Plate, <tc., 61?., Malins, V.-C. 
 13th Feb., 1878. 2.357, B. 
 
 already given. 
 
 Appointment 
 where com- 
 pany is surety 
 
 Form 429. Upon, &c., and upon reading the several aflFts, &c., the recognisance 
 dated 3rd Nov., 1878, acknowledged by B. and W., and a bond dated 
 
 27th Nov., 1878, by the same parties and The Association, Limtd, 
 
 duly enrolled on the 4th of December, 1878, appoint B. and W. joint 
 off. liqs. of the above-named co. And [accounts, and payments into 
 BanJc], The Tea Co., Hall, V.-C, 6th Dec, 1878. 2108, B. 
 
 Form 430. Titte.- svpra, Form 381. 
 
 Advertisement N'otice is hby given that Mr. Justice has, by an order dated the 
 
 of appoint- — th day of , appointed of , to be off. liq. of the al)ove- 
 
 ^^^ ' named co. Dated this of . 
 
 A. B., Chief Clcrh. 
 
 Rule 14 of the General Orders of 1862 provides that every appointment of an 
 official liquidator shall be advertised in such manner as the judge shall direct, 
 immediately after he has been appointed and given security. The original 
 advertisement must be written on stamped form, and sent to office of London 
 Gazette. 
 
 Appointment Section 97 of the Act of 18G2 enables the liquidator, with the sanction of the 
 
 of solicitor. Court, to appoint a solicitor. The form of appointment is given in the Schedule 
 
 to Rules, No. 12. The sanction is obtained on summons. Where there are several 
 
 lic(uidators they must concur in the appointment of a solicitor ; see note to 
 
 Form 717. As to duties of the solicitor, see Rule 68. 
 
 Form 431. Let, kc, on the pt of the off. Uq. of the above-named co to settle the 
 Summons to Security to be given by him pursuant to the order in these matters made 
 settle security, the - 
 
 • day of . 
 
 See as to the security to be given by official liquidators s. 92 of the Act of 
 1862, and Rules 10, 11, and 12, and Rules of 1883, 672—679. The above 
 summons is only used where the order appointing the liquidator directs him 
 to give security. See Form 427. But in many cases security is given before 
 the order of appointment. The chief clerk determines the amount and 
 nature of the security to be given, and evidence as to the assets should be 
 forthcoming.
 
 SECURITY OF OFFICIAL LIQUIDATOR. 4,35 
 
 Where ordinary securities are to be proposed, an affidavit as to means must Form 431. 
 
 be provided. See Form 10 in Schedule to Rules. And they will enter into a -; 
 
 recognisance for the amount fixed. For form of recognisance, see Form 9 in "'^ran ee 
 Schedule to Rules. 
 
 But in many cases the bond of a guai-antee company is accepted instead of 
 the recognisance of ordinary sureties. The following are the cbief London 
 companies doing such business, viz. : The Guarantee Society — The Provident 
 Clerks and General Accident Insurance Company Limited — The National 
 Guarantee and Suretyship Association Limited — The London Guarantee and 
 Accident Company Limited. The premium is usually 10s. per cent, per annum. 
 
 Where a person desires to have one of these companies for his sureties, he 
 should apply for form of jiroposal. 
 
 The proposal generally requires a reference to a banker and solicitor, and if 
 the reference is satisfactory, the proposal is accepted , and the applicant's solicitor 
 will be furnished with a printed form of bond and affidavit as to the comj^any's 
 means, to be submitted to the chief clerk for approval. The liquidator has to 
 enter into a counter agreement with the guaranteeing company. See Krehl v. 
 Great Central Co., L. R. 5 Ex. 289. 
 
 The following is the form of bond usually adopted : — 
 
 Know all men l)y these Presents, That I, C. , of , and We, Form 432 
 
 The Co. Limtd [or Society] are jointly and severally held arid Bond where 
 
 firmly bomid nnto \^A. and B., two senior chief clerics'] of the High Ct of guarantee 
 
 Jnstice, in the smn of 1, of lawful money of the United Kingdom of sul-etfe's^ 
 
 Oreat Britain and Ireland, to be pd imto the sd A. and B., or one of 
 them, or the exs or ads of them, or one of them. For which paymt well 
 •and truly to be made I, the sd C, for myself, my heirs, exs, and ads, and 
 every of them, and We, the sd co \_or society], for om-selves and our 
 successors, do bind and oblige ourselves for the whole firmly by these 
 presents. 
 
 Sealed with the seal of the sd C, and also with the seal of the sd 
 
 CO \_or society]. Dated the day of , in the year of om- Lord 
 
 188—. 
 Whereas in the matter of the Cos Acts, 18G2 and 1867, and in tlie 
 
 . matter of The Co, Limtd, the judge to whose ct the winding up of 
 
 the sd CO is attached, has by an order dated the day of 
 
 •appointed the sd C. off. liq. of the sd co, and has thereby directed him 
 to give security to be approved of by the sd judge [or, in case the 
 •security precedes the order appointing, has approved of the sd C. as a 
 proper person to be appointed off. liq. of the sd co, upon his giving 
 
 security]. And Whereas the sd judge has approved of The Co, 
 
 Limtd, above named, to l)e sm-eties for the sd C. for the sd sum of 
 
 1., and has also approved of the above bond, with the underm-itteu 
 
 condition, together with the recognisance of the sd C. in the penal sum 
 
 of /., bearing even date herewith, as a proper security to be entered 
 
 into by the sd C. and the sd co pursuant to the sd order and the general 
 
 •order of the ct in that behalf, and in testimony of such approbation the 
 chief clerk of the sd judge hath signed an allowance in the margin hereof 
 
 ■and of the sd recognisance respectively. 
 
 Now the condition of the above-written bond or obhgation is such 
 
 F F 2
 
 436 WINDING-Ur. 
 
 Form 432. that if the ahove-homideii C, his exs or ads, or some or one of them do 
 and sliall duly account for what he the sd C. shall receive or shall become 
 liable to pay as such off. liq. of the sd co as afsd at such period and in 
 such manner as the High Ct of Justice or the judge thereof to whose ct 
 the winding-up of the sd co shall for the time being be attached shall 
 apjjoint, and do and shall pay the same as such ct or judge hath 
 directed or shall hereafter direct, then the above-written bond or obliga- 
 tion shall be void or else shall, subject to the provisions hereafter contd, 
 be and remain in full force and virtue, Provided always that if 
 default shall be made by the sd C. in paying to the sd co [or society], 
 
 on or before the ■ day of , in any year of guarantee, the annual 
 
 2")i-emium or sum of /., then the sd co [or society] shall, at any time 
 
 after such default in paymt be at libty to apply by summons to the 
 judge at chambers to whose ct the winding-up of the sd co shall for the 
 time being be attached to he relieved from all further lialn'lity as such 
 sureties as afsd from the final hearing of such summons ; such sunnnons. 
 having been served upon such persons as the judge shall direct, and 
 being finally heard all further liability of the sd co [o7' society] as such 
 sureties as afsd shall from and after such final hearing of such summons 
 or from and after such other time as the judge shall direct, cease, and 
 determine, save and except in respect of any loss or damage occasioned 
 by any act or default of the sd G. in relation to his duties as such off. 
 liq. as afsd previously to such cesser and determination of liability : 
 Provided always and it is hby agreed and declared that this bond is. 
 entered into by the sd co [_or society] on the condition that the capital 
 stock and funds according to the articles of association of the sd ca 
 [^or the deed of settlemt of the sd society] shall alone be liable ta 
 answer and make good all claims in respect of this bond, and that no 
 director or proprietor of the sd society [or co] shall in any manner be 
 personally liable or subject to any claims or demands by reason of such 
 bond beyond the amount unpaid of his or her share or shares of such 
 capital stock or funds \_fhc pt'ecficlmg jyroviso is not norosmry in the case of 
 a Jim Id ro] : Provided always that a certificate or certificates under the 
 hand of the chief clerk for the time being of the judge to whose ct the 
 winding-up of the sd co shall for the time being be attached of the amount 
 which the sd C. as such off. liq. as afsd is liable to pay and has not pd, 
 shall be sufficient and conclusive evidence against the sd C, his heirs, 
 exs, and ads, and against the sd co [_o)- society], and also as between the 
 sd CO [o}' society] and the sd A. and B., of the truth of the contents of 
 the sd certificate or certificates, and that this l)ond has become forfeited 
 thereby to the amount of the sum stated in such certificate or certifi- 
 cates, and shall form a valid ami binding charge and claim not only 
 
 against the sd his heirs, exs, and ads, but also against the sd ca 
 
 [or society] and the funds and ppty thereof without its being necessary 
 for the sd A. and B., or either of them, their or either of their exs or 
 ads first to take legal or other proceedings against the sd C, his heirs^ 
 exs, or ads, for the recovery thereof, and without any further or other
 
 SECUEITY OF OFFICIAL LIQUIDATOR. 437 
 
 proof being given either by or on the pt of the sd A. and B., or either Form 432. 
 of them, their or either of their exs or ads in any action, suit, or proceed- 
 ing, to enforce this bond against tlie sd co [_or society], or against tlie 
 sd C, his heirs, exs, or ads, or by or on the pt of the sd co [or society], 
 in any action or proceeding against the sd C, his heirs, exs, or ads, of 
 the amount of sucli damage or loss, or that the same has been sustained, 
 incurred, or occasioned by and tln-ough the act or default of the sd 0. 
 while in office : Provided always, and it is f m'ther agreed between the sd 
 C. and the sd co [<w- society], that the sd C. shall and will on being dis- 
 charged from his office of or ceasing to act as such ofiF. liq. as afsd, 
 forthwith give notice thereof in writing, and also furnish to the sd 
 CO [or society], free of charge, an office copy of the order of the court or 
 judge discharging him from his office as such off. liq. as afsd : And 
 further, that he the sd C, his heirs, exs, and ads, shall and will from 
 time to time and at all times save, defend, and keep harmless the sd 
 CO [or society] and their successors and the ppty and funds of the sd co 
 [or society] from and against all loss and damage, costs, and expenses 
 which the sd co [or society], or the funds or ppty thereof, shall or may 
 or otherwise might at any time sustain or be put unto or for or l^y reason 
 or in consequence of the sd co [or society] ha^ing entered into the 
 above-wi'itten bond for and at the reipiest of the sd C. 
 
 Ix wiTXESS whereof the sd • • hath hereunto set his hand and seal, 
 
 and the sd co [or society] have hereunto caused their conunon seal to be 
 affixed the day and year first above written. 
 
 The bond requires a 10s. stamp. The recognisance does not require a stamp. 
 As to reopening accounts after chief clerk's certificate of liability to pay, see 
 Birmingham Breicery Co., 48 L. T. 032; 31 W. E. 415. 
 
 Upon the applicon of the oflp. liq., &c., Let the time by the sd order Form 433. 
 dated 23 January, 1878, within which the off. liq. was directed to give o^^^7~ ~ 
 secm-ity, be enlarged to the 2Uth Feb., 1878. Plionjjliate Sewage Co., extending 
 MaHns, V.-C, G Feb., 1878. B. 203. !Sur%.'""' 
 
 Sometimes secimty cannot be given within the time limited, and in such case 
 a, summons to extend the time should be taken out, or if desirable application 
 <;an be made to the Court by motion ex 'parte. 
 
 In psuance of the directions given to me by the V.-C, Sir , Form 434. 
 
 I hby certify that in psuance of the order, in these matters dated, &c., chief clerk's 
 
 , X. of , who is by the sd order appointed off. liq. of the certificate of 
 
 above-named co, and who is thereby ordered on or before the day ^^'^^^ ^ given. 
 
 -of , to give security to be approved of by the sd judge has given 
 
 secm-ity pm-suant to the General Orders and Rules of Ct, and has entered 
 into his own recognisance and into a bond together with the [guarantee 
 society of, &c.], or his sureties, which recognisance and bond, and 
 
 dated respively the — day of , and have respively been approved 
 
 by the judge [or by entering into a recognisance together with and 
 
 , his sm-eties, dated the day of , which has been approved
 
 438 
 
 WINDING-Ur. 
 
 rorm 434. of by the sd judge,] in testimony whereof I have signed an allowance in 
 "~ the margin thereof [respively]. 
 
 The evidence adduced consists of the affidavit of the sd N. filed. &c. 
 
 When security has been given pui-suant to an order, the chief clerk will 
 certify as above. Where the liquidator gives security before appointment 
 (Form 427) the necessity for this certificate is avoided. 
 
 Form 435. On the pt of the off. liq. of the above-named co that the security 
 
 Summons to~ given by him and his sureties, J. & K., in these matters by the recog- 
 
 reduce nisance entered into by them for 3000/'., and dated, &c., may be reduced 
 
 security. ^^ ^j^^ ^^^^ ^^ ^^^^^ 
 
 Where in the course of a winding up, by reason of the distribution of assets, 
 or otherwise, it is considered that the security given by the official liquidator 
 is excessive, he usually applies by summons for an order reducing the same. 
 The summons should be supported by an affidavit as to the facts. 
 
 Form 436. Upon the ipplicon of M., the off. hq., &c., Let the secm-ity given by 
 Order reducing the sd off. q. iu thesc matters be reduced as fi-om the date of this order 
 
 security. to the sum of 2oO/., and let the sd bond of the sd M. and The Co, 
 
 Limtd, as from the date of this order, stand as a security for the sum of 
 200/. only, instead of the sum of 1000/., in respect of any sum or smns. 
 of money to be received by the sd off. liq. after the date of this order, 
 but subject and without prejudice to the liability of the sd M. and the 
 sd CO or either of them under the sd bond in respect of any smn or smn& 
 of money received by the sd M., or otherwise, prior to the date of this, 
 order. Thermo Electric Generator Co., Limtd, M. R., TJ July, 1878. 
 1548 B. 
 
 For order reducing the security by bond given by official liquidator and 
 receiver [in action] for debenture holders from 10,000?. to 500L, see Western of 
 Canada Oil, <Sfc., Co., Limtd., M. E., 24 July, 1878. 1559 B. 
 
 Form 437. Upon the applicon of the off. liq., &c., It is ordered that the security 
 
 ^j^Q^j^gj. given by the sd off. liq. by bond, together with The Co, Limtd, as. 
 
 his sureties, dated the 23rd Jan., 1877, be and the same is hby reduced 
 fi'om the sum of 10, 000/., the amount named in the sd bond, to the sum 
 of 2000/., and that the sd l)ond do. as from the date hereof, stand as a 
 security for the sum of 2()0(»/. and no more, And it is ordered that the 
 liability of the sd co in respect of the matters mentd in the sd bond, 
 shall after the date hereof l)e limtd to the sum of 2000/. Britannia Iron 
 Works, M. Ft.. 7 Mar., 1878. A. 480. 
 
 Form 438. Upon the applicon of B., the oft", liq., &c., and upon reading the 
 
 Order on orders, &c., and the chief clerk's certificate, dated, &c., an office coipy of 
 
 retirement of the recognisance entered into by the sd B. together with W. & 1). as. 
 
 sureties. j^^^ sureties, dated, &c., and the sd W. & T>. being desirous of retiring 
 
 from such suretyship, and the sd off. liq. having given fresh security 
 
 approved l)y the judge, such fi'esh security consisting of a recognisance.
 
 ACCOUNTS OF OFFICIAL LIQUIDATOR. 439 
 
 &c., which scl last-nicntd rccog-nisance has been duly eiiroUed, Let the sd Form 438. 
 recognisance entered into by the sd B., together with the sd ^Y. &, D., as ' 
 
 his sureties, dated, &c., be vacated. South Devon, dx., Association, 
 M. R., 18 April, 1878. 845 B. 
 
 Special circumstances must be shown to induce the Court to allow a surety 
 to retire. See further Seton 444 et seq. 
 
 On the pt of the off. liq. of the above-named co, that he may be at Form 439. 
 libty to put in suit the recognisance dated, &c., entered into by A., the ^ t 
 
 '' r o ' ' J > bummons lor 
 
 late off. liq. of the sd co, together with & , his sureties. liberty to put 
 
 Dan. Forms p. 906 ; Seton 444. 
 
 For order enforcing recognisance against surety see Moorwood Moo) 
 Malins, V.-C, 7 Aug. 1877. B. 1483. 
 
 Compare with order in Seton, p. 443, and see Dan. Forms, p. 90G. 
 
 recognisance in 
 suit. 
 
 Co., 
 
 Where an official or provisional liquidator is discharged, whether upon a Vacatin", 
 dissolution order being made or otherwise, an order is made vacating any 
 recognisance or bond entex-ed into or given by him or his sureties. See Forms 
 418 and 401 et seq. 
 
 On the pt of the off. liq. to proceed on his first [or as the case may Form 440 
 he'] account herein. 
 
 Summons to 
 
 As to the accounts see Eules 11, 13, and 19, and Rules of 1883, G74 — 679. proceed on 
 
 At the time appointed by the order [Form 427] the account should be left, account, 
 duly verified as below mentioned, and a summons taken out as above. Where 
 the provisional liquidator has been appointed official liquidator, he will have to 
 bring in separate accounts and a separate summons to proceed on each must be 
 issued. 
 The following will show the form of account : 
 
 In the High Ct of Justice. 
 Chancery Division. 
 Mr. Justice . 
 
 Title. 
 
 Form 441. 
 
 Form of 
 account. 
 
 The first [or as the case maij he'] account of A., the off. liq. of the 
 
 above-named co, appointed l)y the order dated the day of , of 
 
 his receipts, and paymts, and allowances as such off. liq., from the 
 
 day of to the day of . 
 
 Receipts. 
 
 No. of 
 Item. 
 
 Date 
 
 when 
 
 received. 
 
 Names of 
 
 persons 
 
 from wh(jni 
 
 received. 
 
 On what 
 aceount 
 received. 
 
 Amount 
 received. 
 
 £ y. d. 
 
 
 
 
 
 
 Payments and Allowances. 
 
 No. of 
 Item. 
 
 Date 
 
 when 
 
 paid or 
 
 allowed. 
 
 Names of 
 persons 
 
 to whom 
 paid or 
 
 allowed. 
 
 For what 
 purpose 
 paid or 
 allowed. 
 
 Amount 
 paid or 
 allowed. 
 
 & .--. d. 
 
 
 
 

 
 440 
 
 "WINDING-UP. 
 
 Form 441. 
 
 Simiinary. 
 Total amount received ou this account. . . . £ 
 Total amount of paymts and allowances on this 
 account . . £ 
 
 Balance due from the off. liq. and now in the 
 Bank of England to the credit of the oflF. liq. 
 The summary must of course vary according to circumstances. 
 The following is another example : 
 
 Summary. 
 
 Total amount received on this account 
 
 Balance due from the off. liq. ou his [Istj account, and 
 
 in the Bank of England on the day of 
 
 [foot of last accounf] 
 
 Total Receipts £ 
 
 Total amount of paymts and allowances, including 
 
 /. invested in the pchase of — /. Consolidated 
 
 Three p. c. Annuities in the name of the off. liq. . £ 
 
 Balance due from the off. liq. and now in tlie 
 
 Bank of England to the credit of the off. liq. £ : : 
 In addition to such cash balance of £ : : there is standing in the 
 name of the off. liq., on account of the sd co., the sd sum of /. Con- 
 solidated Three p. c. Annuities. 
 
 At the hearing of the summons [Form 440] the liquidator will attend and 
 vouch the account, and the summons will be adjourned frona time to time as 
 may be necessary. Under the Eviles of 1883 (Order 50, rr. 20, 23), the account 
 must be verified by the liquidator's affidavit before it is left at Chambers. The 
 affidavit is to be as follows (Order L., r. 20), but see note infra : — 
 
 Form 442. I, C. of 
 
 Affidavit veri- 
 fying account. 
 
 — , accountant, the off. li({. of tlie above-named co, make 
 oath and say as follows : — 
 
 1. The account contd from page to page , ])oth inclusive, 
 
 in each of the two several l)ooks marked with the several letters A. and 
 B. i)roduced and shown to me at the time of swearing this my aft't, and 
 purporting to be an account of the receipts and paymts by me as such 
 off. liq. from the 7th day of January, 1884, to the Gth day of July, 1884, 
 both inclusive, contains a true account of all and every sum or sums of 
 money, [and of all interest, discount, and accretions in respect thereof] 
 received by me or [allowed to me or received by or allowed to] any other 
 jDcrson or persons by my order or to my knowledge or belief for my use 
 on account or in respect of the sd co : except what is included as received 
 in the former account [or accounts] sworn by me. 
 
 2. The several sums of money mentd in the sd account hby verified to 
 have been pd and allowed, have been actually and truly so i)d and 
 allowed for the several pposes in the sd account mentd. 
 
 ■J. The sd account is just and true in all and every the items and par- 
 lars therein contd according to the best of my knowledge and belief.
 
 ACCOUNTS OF OFFICIAL LIQUIDATOR. 44I 
 
 4. AV. and T., the sureties named in tlie recognisance dated, &c., are Form 442. 
 both aHve [and resident in Great Britain], and neither of them has 
 become banki-upt or insolvent. 
 
 The words in brackets were formerly used but they do not appear in Form 22, 
 App. L. to the Eules of 1S83. 
 
 It is eminently inconvenient to enter the account in the books before it has 
 been vouched and passed, and accordingly in some of the chambers directions 
 have been given to verify the account when left by affidavit without reference 
 to the books, and when passed to enter it in the books and verify by affidavit 
 as above. 
 
 If a company is surety Clause 4 must be modified accordingly, e.g. : — Wliere 
 
 The Company, Limited, who became and are sureties for me as official guai';>ntee com- 
 
 liquidator of the said company, are solvent and able to pay their liabilities, to •'^ ' ^ '^ •'' 
 the best of my knowledge, information, and belief. 
 
 The affidavit must refer to the books as exhibits, and the memorandum of Exhibits, 
 identity will state that : " This and the preceding [10] pages contain the 
 account entered in the book marked A. mentioned and referred to in the affi- 
 davit of sworn in these matters before me by the said this day 
 
 of ." 
 
 The affidavit having been sworn and filed, an office copy is left at chambers, 
 together with the two books, and when the account has been vouched the chief 
 clerk makes a certificate of allowance as follows [Form -143] and also signs at 
 the foot of the accounts a note stating that : 
 
 " This is the account mentioned in my certificate dated the day of . 
 
 , Chief Clerk." 
 
 In psuance of the directions given to me by The Honom-able Mr. Form 443. 
 
 Justice , I hbj certify that in psuance of the order made in these chief clerk's 
 
 matters dated the day of , A., the person appointed off. liq. '■ertificate. 
 
 of the above-named co, has rendered his [1st] account as such off". Hq. 
 of his receipts and paymts and allowances in respect of the sd co from 
 
 the time of his appointmt [or as from] the — — day of to the 
 
 day of , and such account has been passed and duly entered 
 
 pm'suant to the general orders, and is verified by the afft of the sd off. 
 
 liq. filed the day of . The sd receipts amount altogether to 
 
 the sum of 316/. Is. dd., and the sd paymts and allowances to the smn 
 of 47/. 12s. Od., and there is due from the sd off. liq., as the balance of 
 liis 1st account, the sum of 2681. 9s. 0^/., which sum the sd off. liq. is to 
 account for in his next account. 
 
 There was, on the 1st day of IMay, 1883, standing in the Bank of 
 England to the credit of the account of off. liq. the sum of 2661. 5s. Gd., 
 as appears by the deputy cashier's certificate dated the -ith day of May, 
 1883, and the sd off. liq. has in his hands the smn of 21. -Is. Sd. 
 
 In psuance, &c., the sd receipts amount altogether to the sum of 3110/., Form 444. 
 which being added to the sum of 170(.»/. the balance due from the sd "^ 7^ " 
 
 ^ Another 
 
 off. liq. on his last account, and standing to the credit of the sd off. liq. certificate. 
 at the Bank of England, they make together the smn of . 2000/. 
 
 The sd jjaymts and allowances amount to the sum of . -±00/. 
 
 And there is due from the sd off. liq. as the balance of such 
 
 account the sum of ...... . 1600/. 
 
 Which sum of 1600/. was standing, &c.
 
 443 
 
 WINDING-UP. 
 
 Form 445. In psuance, &c., the sd off. liq. has not received anything from the 
 
 foot of his third account up to and inchiding the of . The 
 
 sd paymts amount, &c. 
 
 Another 
 certificate 
 where no 
 receipts. 
 
 Form 446 
 
 Certificate on 
 passing final 
 account. 
 
 In psuance, &c. 
 
 The sd receipts amount altogether to the sum of 
 To which being added the l)alance due from the sd off. 
 Hq. on passing his 3rd account amounting to the 
 sum of ........ . 
 
 They make together the sum of .... 
 
 The paymts and allowances also amount to the like 
 sum of ........ . 
 
 And there is not anything remaining due to or from the sd oif. liq. on 
 the balance of such 4th and final account. 
 
 The paymts allowed in the sd account include the sum of /. to 
 
 the said H. in respect of his remuneration as such off. liq. as afsd. 
 The paymts allowed in the sd account also include the sum of 
 
 9/. 75. 10^. 
 
 225/. 6s. lOd. 
 234/. 14s. Sd. 
 
 234?. 14s. 8d. 
 
 being the amount of dividends unclaimed and pd into Ct to the credit 
 of these matters pursuant to [Kule 25 of the Chancery Funds Consoli- 
 dated Rules, 1874]. And I hby certify that the affairs of the sd co 
 have been completely wound up. 
 
 Form 447. I. 
 
 Summons to 
 extend time 
 to leave 
 account. 
 
 - of , the off. liq. of the above-named co, make oath and 
 
 Affidavit of say as follows : — I have not, nor hath nor have any person or persons 
 no receipts or lyy ^w order or to my knowledge or belief, for my use as such off", liq. as 
 
 payments since n t ■ ^ ^ n • , , t , 
 
 last account, ^^'^f^ receivetl any sum or sums of money, nor any interest, discount, or 
 accretion iu respect thereof, or made any payrat or paymts whatsoever 
 
 on account or in respect of the above-named co since the of , 
 
 the date of the closing of my Ath account herein. 2. [As to sureties.] 
 
 Form 448. On the pt of A., the off. liq. of the aliove-named co, that he may have 
 14 days further time to leave in my chambers his (first) account as such 
 off. liq. pursuant to the order dated, &c. 
 
 On the pt of B. of , a creditor of the above-named co, that A., the 
 
 off. liq. of the sd co, may be ordered within 7 days after service to leave in 
 my chambers his [third'] accounc as such off", liq. pursuant to the order 
 dated, &c., and that the sd A. may be ordered to jjay the costs of this 
 applicon. 
 
 If the liquidator makes default in bringing in his account, any party- 
 interested can apply as above. See Wright's case, 5 Ch. 443. And see Orders 
 of 188.3, r. G71. And if necessary an order for attachment can be obtained. 
 
 For orders directing provisional liquidators to bring their accounts, see supra. 
 Forms 417 et seq. 
 
 Where the liquidator dies an order may be made as follows : See Dan. Forms, 
 p. 905 ; Seton, 452. 
 
 Form 450. Upon the applicon of L., the exor of tlic will of C, deceased, late the 
 off. liq. of the above-named co, and upon hearing the solors of the ap- 
 plicant and of S., the j^reseut off. liq. of the sd co, and upon reading 
 
 Form 449. 
 
 Summons to 
 compel official 
 liquidator to 
 bring iu his 
 account. 
 
 Order givin 
 liberty to 
 execntor of
 
 EEMUNEEATION OF OFFICIAL LIQUIDATOE. 443 
 
 probate of the will of the sd C, deceased, Let the sd L. he at libtv to Form 450. 
 carry in and pass the final acconnt of the sd C, deceased, as such off. deceased 
 liq. from the foot of the last account to the time of his decease. And liquidator to 
 Let the sd L. pay the balance (if any) which may be certified to be "" ' 
 due from the estate of the sd C, deceased, into the Bank of England to 
 the credit of the account of the off. liq. of the sd co. And upon such 
 paymt or if it shall be certified that there is not any balance due let the 
 recognisance dated, &c., be vacated : And let the costs of the sd L. of 
 this applicon and consequent thereon as between solor and client Ije pd 
 by the sd S., and allowed to him on passing his accounts. Ottoman Co., 
 Limtcl, Bacon, Y-C, 15 Ap. 1878. 828 B. 
 
 Let, &c., on the pt of X., one of the sureties for A., the off. Hq. of Form 451. 
 
 the above-named co, that the sd N. may be at libty to attend at his own Summons by 
 expense the passing of the accounts of the sd A. as such off. liq. ^^^^ ^T 
 
 In special cases, e.g., where the liquidator has become bankrupt, his surety attend passing 
 may obtain liberty to attend as above : See Dan. Pr. IGOG ; Seton, 446. And °^ account, 
 see Birmingham Brewery Co., 48 L. T. 362. 
 
 Ujion the applicon of W. of , a creditor of the above-named co, Form 452. 
 
 and \\\)0\\ hearing the solors for the applicant and for the off. liq. of co. Liberty to 
 and upon reading the order dated 29 Jan., 1878, and the afft of S. filed issue an 
 28 Mar., 1878, of service of the sd order upon the sd H., Let the ap- aaainst official 
 plicaut be at libty to issue an attachmt against the sd H. for breach liquidator. 
 of the sd order of 29 Jan., 1878. Norman Patent Setving Machine Co., 
 Hall, V.-C, 10 Ap., 1878. B. 535. 
 
 On the pt of the off. liq. of the above-named co, that he may be at Form 453. 
 libty to retain and pay himself out of the assets of the co the sum of Summons bv 
 
 1, on account of his remuneration as such off', liq. official liqui- 
 dator for 
 Section 93 of the Act of 1862 provides that there shall be paid to the official liberty to 
 liquidator such salai-y or remuneration, by way of percentage or otherwise, as retain money 
 the Coiirt may direct ; and if more liquidators than one are ajipointed, such °" accoun 
 remuneration shall be distributed among them in such projDortions as the Court 
 directs. See also Eule 18 of the G-en. Order of Nov. 1862. 
 
 The following regulation as to renumeration has been made, and is 
 acted on : 
 
 EEGULATION 
 
 AS TO THE MODE OF 
 
 EEMUNEEATINa OFFICIAL LIQUIDATOES 
 
 Adopted by the Master of the Rolls and the V ice-Chancellors, and sanctioned and 
 approved by the Lord Chancellor. 
 
 Evert application by an official liquidator for remuneration must be supported 
 by an affidavit showing- the number of hours devoted by him and his clerks 
 respectively to the business of the liquidation.
 
 444 WINDING-UP. 
 
 Form 453. I^ fixing the amount of the remuneration, the judge will, Bubject as herein- 
 after mentioned, be guided by the following scale : — 
 
 Liquidators. Per day of 
 
 Group A. eight liours. 
 
 Class 1. Where the assets divisible among the unsecured oredi- £, £ 
 
 tors shall not amount to ... ... ... ... 500 1 
 
 „ 2. Where they shall amount to .£500 and not to 2,000 2 
 
 „ 3. „ „ „ 2,000 „ 5,000 3 
 
 Group B. 
 Class 4. „ „ „ 5,000 „ 10,000 4 
 
 „ 5. „ „ „ 10,000 „ 50,000 6 
 
 Group C. 
 
 Class G. „ „ „ 50,000 „ 100,000 8 
 
 „ 7. „ ,, „ 100,000 „ 500,000 10 
 
 „ S. „ „ „ 500,000 and over 12 
 
 Clerks. 
 
 First class. Second class. Third class. 
 
 Group A. 2s. ... Is. 6d. ... Is. per hour. 
 
 B. 3s. ... 2s. GcL ... Is. 
 
 C. 3s. 6d. ... 2s. Gel. ... Is. 
 
 If in the special circumstances of any liquidation it shall at any time, or 
 from time to time, appear to the judge that it is proper to jjlace it on a higher 
 or lower class, he \vi\l so place it accordingly. 
 
 If it shall appear to the judge that in the special circumstances of any liqui- 
 dation it is proper to add to or deduct from the amount of remuneration pro- 
 vided by the scale, he will make such addition or deduction accordingly. 
 
 If during the progress of a liquidation it shall appear to the judge expedient 
 so to do, he will sanction payments to the liquidator on account of his remune- 
 ration. 
 
 For this purpose the judge will estimate the amount of such remuneration as 
 well as circumstances will admit, and will pay to the liquidator either the whole 
 of such estimated remuneration or such part thereof as to the judge shall seem 
 reasonable. 
 
 This regulation is given in L. E. 3 Ch. Ixiv. 
 
 Priority of Remuneration. 
 
 An official liquidator should bear in mind that he is not entitled to receive 
 anything out of the assets of the company by way of remuneration until all the 
 costs of the winding up (including the costs of any provisional liquidator and 
 the bill of costs of the solicitor employed by the official liquidator) have been 
 paid in full. In re Massey, 9 Eq. 3G7 ; Dronfield Co., 23 C. Div. 511. See, how- 
 ever. Re Dominion of Canada Co., 32 W. R. 425 ; W. N. 1884,38. But this does 
 not prevent payments being made to him on account of remuneration where the 
 assets will clearly or probably be sufficient to cover the above costs. 
 
 Moreover, whei-e the assets are encumbered, e.gf.,by mortgages or debentures, 
 the remuneration of the liquidator ranks after the rights of the incumbrancers. 
 In re Oriental Hotels Co., 12 Eq. 12G ; In re Regent's Canal Iron Works Co., 3 C. 
 Div. 411. And see Davy v. Price, W. N. 1883, 22G. But the remuneration of 
 the liquidator ranks before the claims of unsecured creditors. 
 
 In passing his accounts, a liquidator is very commonly allowed a sum on 
 account of remuneration. And in many cases he applies for jjayment as above. 
 Form 453. 
 
 Very commonly no order is drawn up on such a summons, but the chief clerk 
 indorses a note of liberty given on the summons, and the liquidator is allowed
 
 EEMUNERATION OF OFFICIAL LIQUIDATOR. 445 
 
 the amount upon passing his next account. Sometimes the order is drawn up. Form 453. 
 See Form i58. 
 
 An application for remuneration should be supported by an affidavit showing 
 the time occupied, and if the liquidator contends that he ought to receive 
 higher remuneration than the regulation prescribes the special circumstances 
 ought to be stated. 
 
 As to liquidator's costs, see infra. Form G53. 
 
 Formal parts : see supra, Form 3si. 
 
 1. By ail order in these matters of His Lordship Mr. Justice , Form 454. 
 
 made the day of , I Avas appointed off. liq. of the aljove- 
 
 Affidavit of 
 named CO. official liqui- 
 
 2. To the best of my knowledo-e, information, and belief, the assets of ^^^^°^' ^^ *f. 
 
 . "^ 1 remuneratiou. 
 
 the sd CO divisible among the unsecured creditors thereof will amount 
 
 to a sum exceeding 2000?., but not exceeding ,5000/. 
 
 3. That since the — — of up to and including the of , 
 
 the time occupied l:)y myself and my clerks in the liquidon of the sd co 
 was as follows, namely : 
 
 By myself, 448 hours ; l)y first-class clerks, 787 hours ; by second- 
 class clerks, 200 hours ; and by third-class clerks, 125 hours. 
 
 4. The time so occupied was properly, necessarily, and exclusively 
 occupied by myself and my sd clerks respively in the winding-up of the 
 sd CO. 
 
 5. According to the regulation and scale of charges of this Honour- 
 able Ct as to the remuneration to be allowed to off. liqs. the remunera- 
 tion to be pd or allowed to me for the time occupied by myself personally 
 as afsd, namely 448 hours at 37. per day of 8 hours, amounts to the sum 
 of 108/. ; for that occupied by my first-class clerks, namely 787 hom-s at 
 2s. per hour, amounts to the sum of 78/. 14s. ; for that occupied by my 
 second-class clerks as afsd, namely 200 hours at l.s. Gd. per hour, amounts 
 to the sum of 15/. ; and, that occupied by my third-class clerks as afsd, 
 namely 125 hours at Is. per hour, amounts to C/. 5^. 
 
 6. I have calculated my remuneration as afsd upon the footing that 
 the liquidon of the above-named co falls within Class 2 of Group A. of 
 the scale contd in the regulation afsd. 
 
 This affidavit is for use in a case where the winding up has not proceeded 
 far, and accordingly the deponent is unable to speak jjositively as to the assets 
 divisible. But in some cases, e.g., where dividends have actually been paid, the 
 position of the company is clearer and the affidavit is varied accordingly. When 
 in the course of the winding up the liquidator finds that he has been remune- 
 rated on a lower scale than that given in the regulation, he will ajjply for 
 further remuneration showing the facts and the amounts he has received on 
 account. 
 
 Some provision as to the remuneration of the official liquidator is not uncom- 
 monly made in orders for dissolution, see Forms infra. 
 
 A provisional liquidator is remunerated in the same way as other liquidators, 
 unless the order appointing him otherwise provides, e.g., he is sometimes 
 appointed " without salary " or at " 1, per week."
 
 446 
 
 WINDING-UP. 
 
 Form 455. 
 
 Affidavit by 
 official liqui- 
 dator's clerk. 
 
 The following- forms are also in use : 
 
 I, , of , make oath and say as follows : — 
 
 1. It has been and is the rule and practice in the office of the sd off. 
 liq. for all persons engaged upon the affairs of the sd co (including the 
 sd off. liq. himself) to enter into diaries the parlars of all work done by 
 them in respect of the co, and the time occupied in doing the work, and 
 for such entries to be made on the day the work is done or on the day 
 following, and the paper writing noAV produced 'and shown to me 
 
 marked , contains to the best of my belief, a true statemt of the 
 
 time devoted l)y the sd off. liq. and his clerks to the affairs of the sd co, 
 between the 1st day of November, 1882, and the 13th day of April, 1883 ; 
 in such statemt tlic days on wliich work was done in respect of the co, 
 are set forth in the 1st column, and (opposite to the date) the parlars of 
 the time occupied in doing the work are set forth in the remaining 
 columns. As to the time of the off. liq. in the 2nd cohnnn, as to the 
 time of the 1st class clerks in the ord column, as to the time of the 2nd 
 class clerks in the -Atli column, as to the time of the 3rd class clerks in 
 the 5th column. The sd statemt is divided into two pts, pt one com- 
 prised time employed in attending in ct or at the judge's chaml)ers, 
 pt two comprises all other time, l)ut does not comprise any time in 
 attending in ct or at the judge's chambers. 
 
 2. I say that the sd statemt corresponds in all its parlars Avitli the 
 entries made by the sd off. liq. and his clerks in their diaries, according 
 to the rule and practice hinbefore mentd, as I know from having com- 
 pared the statemt Avith the sd diaries. 
 
 Form 456. I, 
 
 of , make oath and say 
 
 Affidavit by 
 official liqui- 
 dator in 
 siqiport. 
 
 Form 457. 
 
 Eemuneration 
 to be assessed 
 and paid. 
 
 I have read the afft of A., sworn the 4th day of June, 1883, and I say 
 that the statemts contd in such afft as to the rule and practice in my 
 office are true. 
 
 The paper writing marked L 1 now produced and shown to me (being 
 the exhibit referred to in the sd afft), contains a true and correct statemt 
 of the time devoted by me and my clerks to the affairs of the abo^'c- 
 named co, between the 1st day of November, 1882, and the 30th day of 
 April, 1883. The whole of such time has been necessarily and diligently 
 employed solely upon the affiiirs of the co, and no pt of the same has 
 been or will be charged to any other co or person. 
 
 The whole of the time appearing by the sd statemt to have been 
 devoted by me personally to the affairs of the co, Avas employed on 
 matters proper to engage my attention, and which could not properly be 
 entrusted to clerks, and the whole of the time appearing to have been 
 devoted by each class of clerks, was employed upon matters proper to 
 receive the attention of such clerks, and which ought not to have been 
 entrusted to clerks of any other class. 
 
 Upon the applicon of M., the off. liq., &c., Let the remuneration of 
 the sd M. as prov. off. liq. and off. liq. of co be assessed and [iisiml
 
 EEMOV^U. AND RESIGNATION OF OFFICIAL LIQUIDATOR. 44,7 
 
 order for ta.rafion of off. lajs. costs, cir.^ And let the sd. ]\I. be at libty Form 457. 
 to deduct such remuneration and pay the sd costs when so taxed, and be 
 allowed such paymts respively on his accounts. Gweudraetlt Colliery, 
 Fry, J., 7 Ap. 1879. A. 82:!. 
 
 Upon the applicon of the off. liqs., &o., and upon reading {inter alia Form 458. 
 the order to carry on the works). Let the appHeant J. until further order Allowance on 
 be allowed 80/. per calendar montli, on account of his remuneration as account of 
 one of the off. liqs. of co, the same to be accounted for by him when 
 such remuneration shall be ultimately fixed. TJios. IF. Booker & Co., 
 Fry, J., 20 Feb., 1879. B. 301. 
 
 Upon the applicon of J. the oif. liq., &c., Let out of the sum of -112/. Form 459. 
 
 standing in the books of the Bank of England to the credit of the off. Order for pay- 
 liq. of the sd co the sum of 83/., being the ascertained amount of the "^*^"* °^ "p'^^-^^ 
 sd off. liq.'s remuneration, be pd to tlie sd J. as such off. liq. And lemuuemtion. 
 [/a.r liq.'s costs']. The Cardiff d:. Merthyr, t£r., Co., Hall, V.-C, 10 
 Mar. IS 77. A. 021. 
 
 Upon the applicon of -B. and S., creditors of the above-named co, to Form 460. 
 remove T. from the office of ofi". liq. of sd co and to appoint H. in his Removal of 
 place and stead, &c., Let T., the off. liq. of sd co, be removed from his official liqui- 
 office as such off. liq. as afsd, and let in his place and stead the sd H. be ""'^ °^' 
 appointed oflF. liq. of the sd co. And \_iisimJ directions']. And [costs]. 
 Moorivood Moor, tir., Co., Mahns, V.-C, -l-l Nov., 1870. B. 19-1:0. 
 
 Under section 93 of the Act of 1862, an official liquidator may resign or be 
 removed by the Court on due cause shown. As to the meaning of the words in 
 italics, see In re Sir John. Moore Gold Mining Co., 12 C. D. 325 ; 28 W. E. 203 ; 
 Ex parte Sheard, 16 C. D. 107 ; Buckley, 239, 291- ; and Oxford Building Society, 
 49 L. T. 495. See also Eule 16. 
 
 The application for removal is usually by summons, but occasionally it is 
 made by motion or petition. 
 
 Sometimes a new liquidator is appointed by the order removing the old one, 
 and sometimes by a subsequent order. 
 
 In the case of the Association of Land Financiers, 10 C. D. 269, the official 
 liquidator was removed on motion made onbehalf of large majority of unsecured 
 creditors, and two creditors who were willing to act gratis were ap23ointed in 
 his place. For the order, see Reg. Lib. 5 Dec. 1878. A. 2177. 
 
 A contributory who has not paid a call cannot apj^ly for removal of liijuidator. 
 Norwich Provident, W. N. 1879, 216. 
 
 Upon the applicon of, &c., and upon hearing the solors for the ap- porm 461 
 plicant and F. the off. liq. of sd co, &c., and the sd F. by his S(jlor 
 
 • Order on 
 
 desiring to retire from the office of off. liq. of the sd co : the judge doth resignation. 
 
 hby appoint M., of off. liq. of the sd co in the place of the sd F. 
 
 And [accounts 1st June in each year, money to be pd into Bank] : 
 And let the sd F. on or before the 10 Dec, 1878, leave his final account 
 as such off. liq. at the chambers of the judge and pass the same and 
 within 14 days from the date of the chief clerk's certificate pay the 
 balance (if any) which shall be certified to be due from him into the Bank
 
 448 
 
 WINDING-UP. 
 
 Form 461. <>f Eiiglaiicl to the account of the oflf. liq. of sd co : And let upon such 
 ~ paymt by the sd F., or upon its being certified that there is no bahance 
 
 due fi'om him, the sd recognisances dated, &c., be vacated. Alexandra 
 Palace Co., Limtd, Mahns. V.-C, 4 Dec, 1878. 2151 A. 
 
 For order on application of K. the liquidator of C. Company, creditors of B. 
 Company, discharging M. from being ofScial liquidator of B. Company, and ap- 
 pointing K. in his place ; M. on or before 22 June, to leave in chambers his 
 account as official liquidator, and to pay the certified balance to K., costs of 
 applicants of application to be ascertained in chambers, and paid by said M. to 
 them, bvit M. to be at liberty to set-off the amount of such costs against the 
 amount (if any) due to him for remuneration as such official liquidator as afore- 
 said, and mt^ovl such payments being made recognisance and bond to be vacated ; 
 see Bryhinalt 'Colleries, M. E., 26 May, 1879. A. 1250. 
 
 For order directing liquidator to pay out of the company's assets the costs of 
 a person on whose application a former liquidator was removed, but without 
 prejudice to company's right to recover the amount from the removed liqui- 
 dator, see Commercial Banh Limited, Hall, V.-C, G May, 1878. A. 2152. 
 
 Form 462. ^^^^ ^^^^ P^ ^^ ^^^^ ^^- ^^^h ^^ ^^^^ above-named co, that Messrs. , the 
 
 Summons to former solors of the sd co, may be ordered upon oath, if necessary, to 
 compel delivery deliver up to the apphcaut all deeds, books, papers, and writings in their 
 books^and"^^ possession, custody, or power, belonging to the above-named co without 
 papers. prejudice to any lien which they may have thereon. 
 
 See section 100 of the Act. Orders for the delivery to the official liquidator 
 of property of the company are frequently made under that section. 
 
 The application is tisually made by summons served on the parties against 
 whom the order is sought. See Buckley, 225. 
 
 For order giving liberty to serve otit of the jurisdiction summons under this 
 section, see International Patent Pulxi Co., IS June, 1877, 1142. As to enfon-cing 
 order by attachment, see In re Anglo-French Co-op. Society, 14. C. D. 533. 
 
 Form 463. Upon the applicon of the off. liq. of co, and upon hearing the solors 
 
 Order against for the applicant and for ]\Iessrs. C. & S.. solors of, &c. appearing in 
 
 the compan.v's person, and upon reading 2 orders dated, &c.. Let the sd Messrs. C. & S. 
 
 within fourteen days after service of this order deliver into the hands of 
 
 B., the sd off. liq., at his office, Xo. , all deeds, books, papers, 
 
 letters, and other documts now being in the possession or power of the 
 sd Messrs. C. & S., and to which tlic co is fvima facie entled, And order 
 that such delivery shall be without prejudice to the lien of the sd Messrs. 
 C. & S. on the sd deeds, books, papers, letters, and other documts, which 
 lien ought to be pd out of the first monies coming to the hands of the sd 
 off. hq. after providing for the costs and expenses of the winding-up of 
 the sd CO, but this order is not to prejudice any security or charge that 
 may l)c held by the sd Messrs. (•. & S. as against the sd co, Langham 
 Skaiinrj Rwl Co., j\L R., l?> Dec, 1877. B. 20G3. 
 
 ^Qe also Indian Mammoth Gold JUmes, M. E., 8 July, 1881. A. 2028 la four 
 days' order as above']. But see now Re Capital Fire, 24 C. Div. 408; 32 W. E. 
 2G0 ; 49 L. T. G97. 
 
 For order against a liquidator, see In re Horbury Bridge Co., 11 C. D. 109. 
 
 General words in a mortgage will not affect the company's books, jRe Clyne 
 Tin Co., 47 L. T. '139.
 
 CAEEYING ON CO^JiPAXYS BUSINESS. 449 
 
 Upon tlie applicou of the off. liq., &c., let the sd off. hq. be at libtv to For m 464 . 
 cany on the Ijiisiuess of the sd co, and coutinne the working of its Onier giving 
 collieries and the sale and pchase of coal, and for that ppose to pay ont liberty to auTy 
 
 ^ nil- J °ii business. 
 
 of the monies from time to time in his hands the salaries, wages, and 
 remiuieration of the persons employed in the sd bnsiness and collieries 
 as fi'om the Itlth of July, 1878, and also all such rents, royalties, taxes, 
 and other outgoings as may from time to time become due and payable 
 in respect of the collieries and premes now in the occupation of the sd 
 CO : Also for the ppose of can-yiug on the sd business and working the 
 sd collieries, to make such pchases as may be proper in the ordinary 
 com^e of business, for cash or otherwise, of goods, and to pay the 
 pchase money out of such monies as afsd, and from time to time for the 
 same ppose to make such sales of the effects of the sd co as may be 
 necessaiy or proper in the ordinary com'se of business : And let, not- 
 withstanding the order of the l!)th of July, 1878, the sd oft', liq. lie at 
 
 libty to continue an account with the Bank at Wrexham and the 
 
 L. J. S. Bank in London, for the ppose of paying Avages and keeping 
 the business a going concern : the excess over l,00(i/. at both lianks to 
 be pd into tlie Bank of England. Pauibon Coal Co., Limid, Malins, 
 Y.-C, 27 July, IS 78. l.-)30 B. 
 
 See also Form 4-66, ui/Va, and note to Form 408, infra. 
 
 Let the applicants as such off. liqs. continue without further order to Form 465. 
 carry on the works and business of the co for the space of six calendar Order to carry^ 
 months from the date of the order : And order that for the ppose of on business 
 can-yiug on such business the applicants be at libty to pay the salaries ^oj^y^f 
 of worlcmen, and the rents and royalties in respect of the mines respively accounts, 
 payable by the co, and any other necessary expenses in order to the 
 carrying on the sd business : And order that the applicants do until 
 further order render their accounts of the sd business so to be cai'ried 
 on by them as afsd once a month ; the first account to be rendered 
 on the 27th Mar., and to embrace the period from 10 Feb., 1879, up 
 to the date of this order, as well as subsequent thereto, and the sul)- 
 sequent accounts up to 27th of each subsequent month. 'Thomas W. 
 Boohr & Co., Fry, J., 25 Feb., 1879. B. 3C2. 
 
 Upon the applicon of the off. liqs., &e., Let the applicants be at libty, Form 466. 
 in addition to the account at the Bank of England to l)e opened by them Liberty to open 
 pursuant to the order of 17 Jan.. 1879, to open a banking account at local banking 
 
 the Cardiff Branch of the Bank : And let the account so to be 
 
 opened be called "The Works' Account," and let the applicants be at 
 libty to pay into such account all monies which may arise from the 
 carrying on of the business of the co as carried on under the order of 
 25 Feb., 1879 \_See Form 357]. Aud let the apphcants be at libty to 
 draw against the sd Works' Account for all monies required by them 
 for carrying on the business, and also for the smn of 8n/. per month, 
 
 G G
 
 450 WINDING-UP. 
 
 Porm 466. authorised to be pel hy the order of 26 Feb., 1879 [see Form 350] with- 
 out the necessity for the counter signature of the chief clerk : And 
 order that if and whenever the balance at the sd Cardiff" Branch shall 
 exceed 5,0()()Z. the amount thereof shall foithwich be transferred by the 
 applicants into the account at the Bank of England. T/ws . W. Boolccr 
 & Co., Fry, J., 27 Feb., 1870. A. :5G2. 
 
 Form 467. Upon the applicon of W., the off", liq., c^-c, Let W., the off", liq. of sd 
 
 Liberty to CO, be at libty to cany on the railway chair foundry of the sd co, 
 
 carry on unless the same shall be sold in the meantime, for a period not exceeding 
 
 business. 
 
 four months, so far as may be necessary to complete orders already 
 
 accepted by the sd co for the supply of chairs, and to undertake further 
 contracts for the manufacture of chairs to an extent not exceeding what 
 is necessary for the purpose of using the stock of iron in the co's pos- 
 session, and provided such further contracts are profitalile. And [^rosts 
 to he costs in ivinduuj-vp']. Norton Iron Co, Limtd., ]M. R., !?> Dec. 
 1878, 213G B. 
 
 Form 468. Upon the applicon of K., the off. liq., and upon hearing counsel for 
 Another. the applicants and for \_ccrtain sMrelioJders and creditors']. Let the off. 
 
 liq. be at libty to carry on the business of the sd co and generally to 
 manage the same until 11 Jan., 1880, or until further order, and for 
 that ppose to retain in his hands such sum or sums of money as may be 
 necessary, with power to draw, accept, make, and endorse any necessary 
 bills of exchange or promissory notes in the name and on behalf of the 
 sd CO, and generally to execute and do all such other things as may be 
 necessary or incidental to the carrying on the sd business without the 
 sanction or intervention of the judge. Anrjlo-American Leather Cloth 
 Co. Hall, V.-C, 5 Nov., 1879. A. 2008. 
 
 With the sanction of the Court, the official liquidator has power " to carry on 
 the business of the company so far as may be necessary for the beneficial wind- 
 ing-up of the same." See section 95 of the Act of 1862 ; In re Wreck Recovery 
 Co., 15 C. D. 353 ; W. E. 1880, 133. Conf. Ex parte Emmanuel, 17 C. D. 35 ; 
 Ex parte Cocks, 21 C. D. 397. 
 
 In order to obtain such sanction, siJeeial circumstances must be shown, e.g., 
 that goodwill is valuable and wovild be lost by stopping ; that company's lease- 
 hold property liable to forfeiture if works stopped ; that company has materials 
 worth little imless used in the business ; that there are pending contracts which 
 it is desirable to complete ; that the company's difficulties are only temporary. 
 
 Where liberty to carry on the business is given, it is sometimes limited as to 
 time, and the time can then be extended. Sometimes the question whether the 
 business shall be carried on is submitted to a meeting of contributories or cre- 
 ditors, according as the company is solvent or insolvent. 
 
 Liberty to carry on the business is much more commonly given to provisional 
 than to official li([uidators. 
 
 Not uncommonly liberty to carry on the lousiness is given by the order ap- 
 pointing a provisional liquidator. See Forms ill, et seq. 
 
 Form 469. U])on the applicon of 8. & B., the prov. off. liqs, of the above-named 
 Onier "ivin-.' <^<-S '^'C-, Let the sd prov. off. li(|s. 1)0 at li))erty to raise a sum of 300/.,
 
 OFFICIAL LIQUID ATOK BOEROWING. 451 
 
 bearing interest at the rate of 5 p. c. p. a. npon the security of the Form 469. 
 monies to be obtained from the sale of the coal to be raised from the nbertvto 
 collieries of sd co after the date of the raising of the sd money, and ijonow. 
 which simi is to be repaid by the prov. off. liqs. out of such monies as 
 soon as they are sufficient for that ppose ; And order that for the ppose 
 of securing the paymt of such sum as afsd and interest the prov. off. liqs. 
 shall have power to sign and issue any document or deed which may be 
 necessary or proper for such ppose. And [costs of applicon to be costs 
 in winding up]. Ivy House and Northicood ColUerij, M. E., 31 May, 
 1878. A. 1015. 
 
 Section 95 of the Act of 18G2 enables the official liquidator, with the sanction 
 of the Court, to raise upon the security of the assets of the company from time 
 to time any requisite sum or sums of money, and this power is frequently 
 exercised, especially where a provisional official liquidator is appointed with 
 liberty to carry on the business ; but the Court cannot create a charge in 
 favour of the lender, in priority to the company's mortgagees, except with their 
 consent. 
 
 Sometimes liberty to raise money is given by the order appointing the 
 provisional liquidator. See sujpra. Forms -llo, et seq. 
 
 Liberty to borrow is frequently given for the purpose of paying off a secured 
 creditor, but it must be sho^vn that the seciu'ity is worth more than the debt. 
 
 Sometimes the sanction of the Court is given to an agreement for a present 
 loan and further advances. Regent's Canal Iron Works, 3 C. Div. 411. 
 
 Upon the applicon of C. of , the prov. off. liq., Order that the Form 470. 
 
 applicant be at liberty to borrow a sum not exceeding 300/'. at a rate of ^^^^^^j^^^^ 
 interest not exceeding Gl. p. c. p. a., for the ppose of paying the rent 
 
 now due in respect of the premes of the sd co in L , and a sum of 
 
 173/. 175. 2d. being the taxed costs of the defts in an action brought by 
 the sd CO against H., and that such sum be repayable out of the first 
 assets of the sd co and meanwhile shall be a first charge on the ppty and 
 assets of the same. American Boivling Co., 28 May, 1877. A. 1552. 
 
 Let the applicant as such prov. off. liq. be at liberty to borrow for the Form 471. 
 ppose of enabling him to do all acts necessary for carrying on the liberty to 
 business of the sd co the sum of 2,000/., the rate of interest for the same borrow for 
 not to exceed 5 p. c. p. a., And let such sum of 2,000/. and interest be a ^u^^ess °^^ 
 first charge on the assets of the sd co. Darlaston, dc, Co., M. E,., 1 May, 
 1877. A. 828. 
 
 For order giving liberty to official liquidator to raise 500L at 6f J. per cent, 
 interest, and further sums up to 5,000L for carrying on the company's biisiness, 
 and to charge same by deed on company's assets, such deed to be settled by 
 the judge in chambers, see Original Hartlejjool Collieries, 26 Ap., 1877. 
 B. 704. 
 
 Upon the apphcou of the off. liq., &c., let the sd off. liq. be at liberty Form 472. 
 to pay into the Bank of England to the credit of the account of the off. Liberty to ^ 
 liq. of the sd co 300/. of his own monies to meet urgent paymts in hquidator to 
 
 <> a 2 ^""""
 
 452 WINDING-UP. 
 
 Form 472. coiinecfcioii with the attempted sale of the co's ppty under the sd order 
 dated, &c., and parly to pay Messrs. H. for advertising- the co's ppty, 
 and that the sd off", liq. shall have priority over the sd debenture holders 
 and R. & E,. as the trustees of the sd indre and over the monies thereby 
 secured as well as the monies advanced by the pits in the sd action 
 under the sd order, &c., or otherwise to the extent of 300Z., and for 
 interest upon the sd sum of 300/. at the rate of 5/. p, c. p. a. from the 
 date of such advance until repaymt, and for his costs of this applicon, 
 such costs to be taxed, &c., And order that the sd principal sum and 
 interest and the costs of this applicon shall be a charge upon the co's 
 assets. Wayne's 3Ierthijr Slcam Coal Co., and in action. 1 June, 1877. 
 B. HOG. 
 
 Order giving official liquidators power to advance money for payment of 
 rates on company's property in Nova Scotia ; to be repaid with interest at 
 5 per cent, per annum, out of first sale monies. Cape Breton Co., Malins, V.-C, 
 29 June, 1878. A. 1513. 
 
 Form 473. Upon the applicon of the off. liq., &c., Let the rights and interests of 
 
 Common order the sd CO in its mineral ppty, situate at , and also the co's machinery, 
 
 for sale, plant, implemts, materials, and other effects tliereiu and thereon be sold 
 
 with the approbation of the judge. And let the money to arise by such 
 
 sale be pd into ct to the credit of the account of the off. liq. of the Gr. W. 
 
 Van Co., Limtd., subject to further order. Grpat Wesi. Van Co., M. E,., 
 
 8 July, 1878. A. 1474. 
 
 As to sales of propei'ty in a winding-up, see s. 95 of the Act of 18G2, and 
 Rule 32. Where the property to be sold is of substantial vakxe, it is usually 
 directed to be sold with the approbation of tlie judge, and the subsequent 
 proceedings are conducted as upon a sale in an action. See Dan. Forms, p. 59G 
 et seq. ; Seton, 1391 et seq. 
 
 Sometimes, however, liberty is given to the official liquidator to sell subject 
 to certain conditions or contracts approved by the judge : And in regard to 
 chattels and property of no great value, liberty is usually given to sell out of 
 Coui't upon such terms as the liquidator thinks fit. 
 
 Application for an order for sale, or for liberty to sell, is usually made by 
 summons on the part of the liquidator supported by evidence showing the 
 expediency of the sale. Not uncommonly the liquidator enters into a pro- 
 visional agreement for sale, and then applies by summons for the confirmation 
 thereof. 
 
 Occasionally before a sale can be made, inquiries as in Form i7G, 490, are 
 requisite. Sometimes before taking an order for sale, the liquidator applies 
 to have inquiries made as to incumbrances, priorities, &c. See Forms 366 
 ct seq.; In re Hamilton's Windsor Iron Works Co., 12 C. D. 707; 27 W. E. 827. 
 
 Form 474. Upon the applicon of the off. liq. of the above-named co, &c., order 
 Order for sale, that of the ppty of the CO in Nova Scotia the following be sold with the 
 approbation of the judge, namely, (1) The, &c., (2) The, &c., (3) & (4). 
 And let the money to arise by such sale be pd into the Bank of England 
 to the credit of the off. liq. to an account to be entitled " Proceeds of 
 sale of ppty sold in the year 1878." Cape Breton, dr., Co. Malins, 
 V.-C, 24 July, 1878. A. 1583.
 
 SALES BY OFFICIAL LiaUIDATOE. 453 
 
 For order on the application of official liquidator, approving of a conveyance Form 474. 
 of property of the company situate in Australia, to L., there resident, in trust ~ " 
 
 for sale, see Fortune Copper Mining Co., 7 Dec, 1875. A. 1825. 
 
 Upon the applicon of 'M &, H., the off. liqs. &c., Let the applicants as Form 475. 
 such off. liqs. be at lil)erty to sell by public auction the real and personal (ieneral liberty 
 estate of the co, comprised in the following parlars, that is to say — to sell. 
 1. All that, &c., 2. All those, &c., &c., free from the incumbrances of 
 such of the incumbrancers thereon as shall consent to such sale, and 
 subject to the incumbrances of such of them as shall not consent : And 
 let off. liqs, be at liberty to sell the remaining real and personal ppty of 
 CO in England at such time and upon such terms, and either by public 
 auction or private contract as they shall from time to time think ex- 
 pedient : And let the money to arise by sale of any of the above-mentd 
 properties be pd into Bank of England, Manchester branch, to account 
 of off. liqs. Costs of applicon and of all proceedings relating thereto, to 
 be costs in liquidon. Beverley Iron and Wen/on Co., Hall, Y,-C., 9 April, 
 1879. A. 705. 
 
 Upon the applicon of the off. liq., &c., Let the following inquiry and Jorm 476. 
 accounts be taken and made : Order for in- 
 
 1, An inquiry whether any and what incumbrances affect the real and ^vhereTucum-^ 
 leasehold estate of the sd co situate at , and the chattels and effects brances. 
 
 of the CO thereon, or any and what pts thereof, and the priorities of such 
 incumbrances. 
 
 2. An account of what is due to such incumbrancers as shall consent 
 to the sale hereinafter directed in respect of their incumbrances. And 
 Let the real and leasehold estate, chattels and effects of the sd co, con- 
 sisting of the A. Palace buildings and grounds, and their contents, be 
 sold with the approbation of the judge, free from the incmnbrances (if 
 any) of such of the incumbrancers as shall consent to the sale and subject 
 to the incumbrances of such of them as shall not consent, and let 
 the money to arise by such sale be pd into the Bank of England to the 
 credit of the account of the off. liq. of the sd co ; and if any such money 
 or any pt thereof shall arise fi"om ppty sold with the consent of incum- 
 brancers the same is to be applied in the first place in paymt of what 
 shall appear to be due to such incmnbrancers accordiug to their priorities, 
 and any party interested is to be at libty to apjily at chambers as he may 
 be advised. Alexandra Palace, Malins, Y.-C, 15 Dec, 187G. 
 
 See s. 25 of the Conveyancing and Law of Property Act, 1881, as to sales in 
 actions. 
 
 Upon the applicon of the off", liq. of co, &c., Let the sd off. liq. of sd Form 477. 
 CO be at libty to sell the ppty of the sd co situate in the Island of order for sale 
 
 Jamaica, and contracted to be purchased from by the sd agreemt subject to 
 
 dated, &c., but such sale is to be subject to the condons of sale which tions.' 
 have been approved l)y the judge and are identified by the signature of 
 the chief clerk of the judge to a memorandum in the margin thereof. 
 Jamaica Fibre Co., Hall, V.-C, 13 July, 1878. A. 1159.
 
 454 
 
 WINDING-UP. 
 
 Form 478. Upon the applicon of D., the off', liq. of the co, &c. Let the scl off. 
 
 Liberty to sell lifl- ^6 at hbty to sell to H., of , the plant and stock of the scT co 
 
 chattels. set out and described in the inventory signed by the sd H. (being the 
 
 exhibit to the afft of the sd D. above referred to), at and for the sum of 
 315Z. Hcliotyije Co., Bacon, V.-C, 2 May, 1877. A. 789. 
 
 Form 479. Upon the applicon of the off*, liqs., &c. Let the off. liqs. be at libty 
 
 Liberty to sell ^^ offer for sale by public auction without reserve (but subject to the 
 
 stip- conditions of sale already approved by the judge), at B., the barque 
 
 called, &c., which prior to the suspension of the Bank was mtged by C. 
 
 to the Bank for the ppose of secimng, &c. Costs of applicon to be costs 
 
 in winding up. West of Enrjland Banic, Fry, J., 5 July, 1879. B. 1422. 
 
 For order giving official liberty to carry ovit contract for the sale of the book 
 debts owing to the company by persons residing in India, see James Anderson Sf 
 Co., Hall, V.-C, 1 May, 1879. A. 920. 
 
 Form 480. 
 
 Approval of 
 conditional 
 contract for 
 sale. 
 
 Upon the applicon of (x., the liq., &c., Order that the conditional con- 
 tract entered into between the sd liq and B., of , for the sale of, &c., 
 
 be carried into eff'ect. And the sd B., declaring himself content with the 
 title to the premes, order that the sd B. pay into C*t to the credit of the 
 R. Co., Limtd., the account of the liq of the sd co, the sum of 2,.^)00/., 
 being the pchase money as agreed for the co's rights and interests in the 
 sd mines, and that upon such paymt being made the sd B. may he let 
 into immediate possession of the sd rights and interests, And order that 
 upon such paymt being made the sd liq do join in and execute a proper 
 assignmt under the seal of the sd co of such rights and interests to the 
 sd B., his exs or ads, such assignmt to be settled by the judge in case 
 the parties differ about the same. Rams(jiU Mining Co., Hall, Y.-C, 
 2G May, 1877. B. 94G. 
 
 Aj)proval of 
 conveyances. 
 
 Form 481. Upon the applicon of the off. liq., &c., and the judge being of opinion 
 that the four several indres hereinafter mentd are fit and i)roper deeds 
 to be executed by the applicant, and that it is fit and proper that the 
 seal of the co should be affixed thereto. It is ordered that the applicant 
 be at libty to execute such indres accordingly, and also to affix the seal 
 of the sd CO to the same. Several four indres being made between the 
 several persons as parties thereto hereinafter mentd, that is to say, 
 
 1. The conveyance of the Alexandra Palace Estate made between, &c. 
 
 2. The conveyance of the land at, &c., made between, &c. 
 
 3. The conveyance, &c. 
 
 4. The assignmt, &c. Alexandra Palace Co., Malins, V.-C, 3 Aug., 
 1877. A. ir).")G. 
 
 Form 482. Upon the applicon of the liq, &c., and upon hearing the solors for the 
 
 applicant and for and trustees for the debenture holders, and 
 
 upon reading, &c. Let the api»licant be at libty to concur in the sale 
 
 Liberty for 
 official liqui- 
 dator to concur
 
 SALES IN WINDING-UP. 
 
 455 
 
 of the ppty directed by an order made in the action of VkJcerman v. Thr Form 482. 
 Bonville Court Coal Co., 1877, v. 31), and dated 7t]i February, 1878 ; And ;,." ,,o i ^ 
 
 ' ' ' •' ' ' 111 sale OKiereu 
 
 let the ppty of the sd co other than the ppty mentd in the sd indre be in action by 
 sold at the same time and place as the ppty directed to be sold by the iloid^l'^^^iui 
 sd order ; And let the monies to arise by such sale be pd into the Ct to direction that 
 
 the credit of the sd action of , And let so much of the pchase- cSelTto be 
 
 money to l)e pd into Ct to the credit of the sd action as is attributable to put up for sale 
 the ppty sold under this order, and not included in the sd order of the '^^ ^^^^ ^^^^^- 
 7th February, 1878, be distinguished from the pchase-money arising 
 from the ppty sold under the sd last-mentd order. BonviUe's Courf Coal, 
 il-c, Co., Hall, Y.-C, 22 Feb., 1878. A. 440. 
 
 Upon the applicon of B., G. and C, the trustees for the debenture Form 483. 
 holders of CO and mtgees of the L. Collieries under a certain indre, Dh^tion to ^ 
 dated, &c., and upon hearing the solors for the applicants and for the liq>"ilator to 
 liqs of the sd co, &c.. Let the contract dated 4 Dec, 1877, for the sale by"tnlsteerfor 
 of the j)pty comprised in the sd contract, forming pt of the ppty of the tlebenture 
 sd CO be confirmed, And I^et all necessary and proper i^arties join in and 
 execute all deeds necessary to give effect to the same, to be settled by 
 the judge in case the parties differ, And Let the ajiplicants pay to the sd 
 C. & L., as the sd liqs, their costs of and occasioned by this applcon 
 and consequent thereon, and of executing the necessary deeds assigning 
 the ppty to the pchaser, to be taxed by the taxing master in case the 
 parties differ about the same, Llanganneck Collieries Co., M. R,., 13 Dec. 
 1877. B. 2002. See Form 249. 
 
 Upon the applicon of K. & B., the trustees for the debenture holders Form 484. 
 of the above-named co, and upon hearing, &c.. Order that the off. liq. of Liij^rty^ 
 CO do concur in the assignmt or assignmts to the pchaser or pchasers assign last 
 from the applicants of the ppty included in their mtge, dated T) Feb., ^^^ " ^™"^' 
 1875, in the sd order of 3 Ap., 187(;, mentd, or any pt or pts thereof, 
 for the ppse of vesting in such pchaser or pchasers the last days of the 
 respive terms created ])y the leases of the same ppty, and the options of 
 pchasing the fi-eehold of such ppty contd in such leases respively, and 
 that the sd off. licj. do convey, assign, demise, and assure, or join in con- 
 veying, assigning, demising, and assuring the ppty included in the sd 
 mtge in such manner as the applicants may direct. Globe, 4'C., Co., M. 
 R. 4 May, 1877. A. OOG. 
 
 Upon the applicon of J. & T., two of the liqs. of the above-named co. Form 485. 
 
 and upon hearing the solors for the applicants and for & , the Order giving~ 
 
 committee of creditors of the sd co, and upon reading the orders dated liquidators 
 respively the 16th of Feb., 1877, and the 1st of March, 1877 : It is tender for 
 ordered that the applicants Ije at libty, either jointly or severally, to purchase of 
 tender for the pchase of the ppties directed to be sold by the sd order, pr^Jerty.*^ 
 dated 1 March, 1877, Brynmaivr Coal Co., Hall, V.-C, 13 Ap. 1877. A. 
 656.
 
 456 
 
 WINDING-UP. 
 
 Miscellaneous Avthorities to Official Liquidator. 
 
 (1 , the prov. off. liqs. of co, &c.» 
 
 Form 486. Uijou the ajiplicon of an 
 
 Liberty to give Order that the scT liqs. be at hl)ty on or l)efore the 24th March, 1877, to 
 
 lip company's give up possession of the offices of the scl co, at Xo. , Lombard 
 
 auo'tiier *'^ ^ street, in the City of London, and that they be at Hbty to take other 
 offices for the pposes of the winding'-np, at a rent not exceeding 150^. 
 p. a., and that they be at Hbty to sell so much of the furniture and 
 fittings at i^resent in use at the sd offices in Lombard Street as they 
 may deem proper or necessary. Hooper's Telegraph ^\'orl:s, M. K., 21 
 March, 1877. A. 523. 
 
 Liberty to 
 
 continue 
 
 manager. 
 
 Form 487. Upon the applicon of the off, liqs., &c., Let the applicants be at libty 
 to continue the employmt of the sd H. as manager of the works l)elonging- 
 to the sd CO at a salary of 400/. p. a. during the carrying on of the 
 sd works, or until further order : such employmt to be determinable 
 upon a week's notice in the event of the co no longer having need 
 thereof. And it appearing that the sd off. liqs. continued the employmt 
 of Mr. W., the late secretary of the sd co up to the 16th May, 1877, at 
 a salary of 325/. ji. a., the judge doth approve of the same. Hooper's 
 Telegraph Worlcs, M. E., 5 June, 1877. A. 1037. 
 
 Form 488. 
 
 Liberty to 
 
 appoint 
 
 manager. 
 
 Upon the applicon of the off. liqs., &c., Let the sd off. liqs. be at libty, 
 subject to his giving to their respivc satisfon security to the- amount of 
 not less than 200/., to appoint S., now residing at Cape Breton, Nova 
 Scotia, in the Dominion of Canada, local manager of the works and ppty 
 of the sd CO, at Cape Breton afsd, sul)ject to one month's written notice 
 to (juit on either side, at a salary of 150/. p. a., to commence from 
 the 1st June, 1878, in the place of N., who has resigned his appointmt 
 as manager of the sd works and ppty. Ca2)e Breton Co., Malins, Y.-C, 
 23 May, 1878. A. 083. 
 
 Form 489. 
 
 Liberty to 
 official liqui- 
 dators to 
 employ 
 secretary to 
 Ijrepare 
 accounts. 
 
 Form 490. 
 
 Appointment 
 of surveyor to 
 ilistinguisli 
 tlxtures from 
 cliattels. 
 
 Let the off. liqs. of co lie at lil)ty to employ C, the late secretary of 
 CO, to i^repare and investigate certain accounts and other papers for the 
 use of counsel : And let the remuneration to l)e pd to the sd C. be fixed 
 in chaml^ers. Anvergne, <£y., Co., Fry, J., 7 Ap., 1870, A. 601, 
 
 Upon the applicon of the off. liq., &c., Let Mr. L., of the firm of 
 -, auctioneers and surveyors, be appointed as a person to report to 
 
 the judge which, if any, of the valuables included in the parlars A. 
 referred to in the contract for sale dated, &c., to the L. F. Association, 
 are comprised as fixtures or otherwise in the mtge dated, &c., and which 
 of the other valuables belong to the sd off", liq., distinguishing those of 
 them which are subject and those (if any) of them which are not sub- 
 ject to the distress of the sd mtgees : And let the question by whom and 
 out of wliat fund the fees and disbinsemts of the sd L. and the costs of
 
 MISCELLANEOUS AUTHOEITIES TO OFFICIAL LIQUID ATOE. 457 
 
 this applicon are to be borne and pd l)c reserved. Alexandra PaJaci' ( '0., Form 490. 
 Malms,V.-C., If) March, ] 877. A. 430. • 
 
 Upon the appb'con of the liq, etc., and upon reading [supervision Form 491. 
 
 order, &c.], Let Mr. F., of , be and he is hby appointed to deter- Another fonn 
 
 mine what chattels situate upon the ppty comprised in the mtgage to 
 B. and others dated, &c., are and what are not fixtures : And let the 
 costs of the sd B. and others the mtgees be ascertained in chambers and 
 added to their secmities, but in such costs the attendance of counsel is 
 not to be allowed. Fovcsi of Dean Coal Co., j\L R., 20 July, 1877. A. 
 1500. 
 
 Upon the applicon of the prov. off. Kq., &c., Let the sd prov. off. liq. Form 492. 
 
 be at libty to employ Messrs. , to make an inventory and valuation i^-^^^^^.^ ^^ 
 
 of all the stores and loose gear and other moveable ppty in or al)ont the have inventory 
 wharf premes of the sd co, and not being fixtures, and let the costs of ^^'^Y'''y^^i'|tioii 
 such inventory and valuation be costs in the Avindiug-up. Butler's made. 
 Wharf Co., 22 Oct., 1878, Hall, V.-C. A. 1881. 
 
 Upon, &c., Let the sd B., as such prov. off. liq. be at liljty to take Form 493. 
 such proceedings against the persons being debtors of the sd co named 7-7~.+ .^^ 
 in the schedule hto, as he may be advised, to recover paymt of the debts debtors and 
 due from them to the sd co : And let the sd B. as such liq as afsd be at tl^^df °''''""'" 
 libty to sell the stock-in-trade of the sd co, or such pt thereof as 
 he may think it advisable to sell. Tea Co., Hall, V.-C, 1 Mar. 1878. 
 B. 531. 
 
 Let the applicauts, as such off. liqs., be at libty, in all cases in which Form 494. 
 they are jointly of opinion that the estate of the bank will be benefited (General liberty 
 by the proceedings, to issue at their discretion fi-om time to time the to sue on bills 
 necessary legal process against the parties to overdue or returned bills of ° ^^^ ^^^s^- 
 exchange held by the bank : And let no action be commenced pursuant 
 to this order unless there is a reasonable prospect of at least the costs 
 thereof being recovered against the persons sued : And no action is to 
 be brought to trial without the sanction of the judge in chambers first 
 obtained. West of Enf/Jand, dx., BanJr, Malins, Y.-C, 7 Jan., 1870, A. 34. 
 
 For order giving official liquidators liberty " to make the usual proof in bank- Form 495. 
 ruptcy against any person or persons indebted to the bank who is already or is 
 or are or shall be adjudicated bankrupt, and either of the applicants to be at 
 liberty to swear the necessary affidavit or affidavits in proof of any debt or 
 debts due to the bank from any bankrupt estate," see West of England, S^c, 
 Bank, Malins, V.-C, 10 Jan., 1879. B. 57. The Court will only give liberty to 
 go in and prove. Emma Co. v. Grant, 17 C. D. 122; Barter v. Dubeux, 7 Q. B. 
 Div. 413 ; Hale v. Boustead, 8 Q. B. D. 4o5. See Form 524, infra. 
 
 Upon the applicon of the off. Hq. of co, &c., Let the sd off. liq. be at For m 496. 
 libty to institute an action in the High Ct of Justice against R. Liberty to 
 for G months' rent of the co's j^remes and plant, and to prosecute /or ^nt. 
 
 Liberty to 
 prove.
 
 458 
 
 WINDING-UP. 
 
 Form 496. such action up to giving notice of trial ; but after such notice shall 
 liave been gixmi no further steps are to l)e taken in the action without 
 further leave of the judge. Taurim Co, Limfd, M. R., 15 Nov., 187G. 
 B. 1760. 
 
 Liberty to 
 Jefeiul. 
 
 Form 497. Upon the applicon of B. and L., the off. liqs., &c., and upon hearing 
 &c., and upon reading an order dated, &c., and the writ of smnnions 
 issued on the 10th of May, 1877, in an action commenced in the 
 Chancery Division of the High Ct of Justice, wherein, &c., Order 
 that the applicants be at libty on behalf of the sd co to take all 
 necessary and proper proceedings as they may be advised by way of 
 defence in the sd action. Huoper's Telegraph Worlis, M. R., 1,"> May, 
 1877. A. 904. 
 
 Order con- 
 firming 
 contract to 
 grant lease. 
 
 Form 498. Upon the applicon of C, the off. liq., &c., Let the conditional con- 
 tract, dated, &c., and made, &c., being the exhibit to the afft of the sd 
 C. for a lease to the sd M. & AV. of a portion of the leasehold shop and 
 
 premes situate at Street, Liverpool, in the county of L., at the rent 
 
 of 35/. 2^. a., be carried into eflPect. American Bowline), ^c, Co., 30 
 July, 1878. A. 1478. 
 
 For order giving official liquidator liberty to gi-ant an imderlease of part of 
 company's property, see Economic Benefit Soc, Fry, J., 16 July, 1879. A. 1553. 
 
 A lease of a company's undertaking can be sanctioned as an arrangement 
 under the Joint Stock Companies Arrangement Act, 1870. In re Dynevor 
 Dyffryn, ^'c., Co., 11 C. D. 005. 
 
 Upon the applicon of the off. liq., &c.. Order that the sd off. liq. be at 
 libty to execute the power of attorney- to M. marked F. verified by the 
 aflFt of J. filed, &c., and identified by the chief clerk's signature in the 
 margin thereof for the ppose of recovering fi'om the estate of N., of 
 Belgium, Banker, such sums of money as may be due from the estate 
 of the sd N. to the sd co. Ottoman Co., Limtd, Bacon, V.-C, '2(j April, 
 1878. 821 B. 
 
 For order giving official liquidator liberty to appoint attorney to prosecute 
 any actions which official liquidator may bring in Spain, see Madrid Markets 
 Co., Hall, V.-C, 10 Ap., 1879. B. 691. 
 
 Form 499. 
 
 Liberty to 
 execute power 
 of attorney. 
 
 Another form. 
 
 Form 500. Upon tlie applicon of C, the sole liq of co, and upon hearing, &c., 
 and upon reading, &c., and the order dated 12 Jan., 1878, whereby the 
 sd liq was to be at lil)ty to constitute N., of Lima, in Peru, his attorney 
 for the ppose of realising and getting in such of the assets of the co 
 there as he should be instructed by the sd liq to realise and get in subject 
 
 to his giving security for 10,000/. by bond of the Bank for that 
 
 amount in the form approved by the chief clerk of the judge within 
 three months from the date of the last-mentd order, and upon reading 
 an afFt of the sd C, filed, &c., Order that the sd liq be at libty to accept, 
 in lieu of the security mentd in the last-mentd order, the bond of the
 
 MISCELLANEOUS AUTHOEITIES TO OFFICIAL LIQUIDATOE. 459 
 Bank in the form approTed by tlic sd chief clerk for the siun of Form 500. 
 
 5,000/. : And order that the time within whicii the secm'ity is to be 
 given by the sd X. pursuant to the sd order of tlie 12th of Jan., 1878, 
 be enlarged until the 12th of June, 1878. General SoutJt Ameriran Co., 
 Limtd, Malius, V.-C, 11 April, 1878. A. 823. 
 
 Upon the applicon of B. and Y., the liqs of co, and upon hearing the Form 501. 
 
 solors for the applicants, and upon reading an order dated, &c., an aift Libertj' to 
 filed, &c., being respively the balance order against P. and the afft of f^^ploy ^gent 
 service thereof through the post office, a joint aff't, <fec., Order that the sd 
 B. and Y., as such liqs as afsd, be at libty to employ E., of Lima, in the 
 Kepublic of Peru, as agent of the sd B. and Y., for them and on their 
 behalf as such liqs as afsd, and in their name or otherwise, to ask, 
 demand, sue for, recover, and receive of and from the sd R. mentd in the 
 sd order of 4 July, 1876, or from any person or persons on his behalf, 
 the sum of 20,522/. lis. 11^/. for and in respect of calls upon shares in 
 the sd CO held by the sd R., together with interest ow the sd sum fi"om 
 20 Mar., 187G, until paymt at 5 p. c. p. a., and to compound, com- 
 promise, and accept \)l in lieu and in satisfon of the whole of the sd debt 
 or sum of 20,'y22I. lis. lid. and interest as afsd, And upon paymt 
 
 of the sd sum and interest, or any pt thereof, into the Bank at 
 
 Lima in the names of the sd liqs B. and Y., to give a good and effectual 
 discharge and receipt for the sd sum or such pt thereof as may be pd as 
 afed, And order that the sd B. and Y. be at libty to allow and pay to 
 such attorney or agent out of such smn as by him or through his inter- 
 vention shall be recovered and so pd in as afsd, a commission not 
 exceeding in amount one-third of the sum so recovered and pd in as 
 afsd. Bristol and jSoufh American, dx., Co., 31 May, 1877. A. 1259. 
 
 For liberty to employ detective as regards contributories, see Form 520. 
 
 Upon the applicon of H. the liq of the above-named co, and upon Form 502. 
 hearing the solors for the applicant, and upon reading the afft of the sd Order giving 
 liq and an originating summons taken out by the sd liq on the 18tli July, ^^\^^'^y t° . 
 1877, m the Chancery Division of this Ct, Order that the sd liq be at tration. 
 libty to refer all matters in difference between the sd co and W. in 
 
 reference to the erection of certain buildings at , according to 
 
 certain specifications and terms mentd in the afft of the sd liq and in 
 relation thereto, and all matters and questions arising thereout, in such 
 manner and upon such terms and conditions as the sd liq may think fit, 
 and for the pposes afsd to enter into and to execute any agreemt or 
 agreemts as he may be advised, but so that any proceedmgs, rules, or 
 orders, to be had, taken, or made in regard to such reference shall be 
 had, taken, or made in and by this ct, And order that the costs of the 
 sd liq, of and incident to this applicon, shall lie pd out of the assets of 
 the sd CO. Drawee's Patent Concrete Co., Malins, V.-C, 28 July, 1877. 
 A. 1474.
 
 460 
 
 WINDING-UP. 
 
 Liberty to go 
 abi-oad. 
 
 Form 503. Upon the applicou of the oJEF. liqs., &c., that the applicant K., one 
 of the sd off. liqs., be at libty during the month of Sept., 1877, to 
 proceed to Xova Scotia, arriving there previously to the 2nd Oct., 1<S77, 
 and to remain there for such time, not exceeding one calendar month, 
 as may ho necessary for further assisting in the defence of the sd co 
 to the action Ijronglit In' CI. against the sd co in S., and for prosecuting 
 the equity suit brought in the Ct of Xova Scotia in the name of the sd 
 CO against G. in H. in relation to the affairs of the sd co, And order that 
 the expenses of the sd K., of and relating to tlie sd journey, not exceed- 
 ing the sum of 100/., be pd out of the assets of the sd co. Cape Breton 
 Co., Malins, V.-C, 9 xiugust, 1877. A. 1873. 
 
 Form 504. Upon the applicou of ^Y., the off. liq., &c., and upon reading, &c. 
 Liiierty to "ive ^^^ '^^^ order made in the action of the Lisbon, (&c., Co. v. Grant, 1877, 
 
 security for 
 costs. 
 
 L. 145, U23on the ajjplicou of C, one of the defts in such action : Let 
 the applicant be at libty out of the assets of the sd co to pay the sum of 
 
 100?. into Ct to the credit of the sd action, v. , to an account 
 
 intituled " Security for costs of the deft C," pursuant to the sd order in 
 the sd action, and dated 1 Feb., 1878. Lislon Steam Tramways Co., 
 Mahns, Y.-C, 28 Feb., 1878. B. 448. See Form 232. 
 
 Form 505. Upon the applicou of T. and C, the prov. off. li(is. of Bank, &c., Let 
 Liberty to ^^® api^licants, as such prov, off. liqs. as afsd, be at libty, in the 
 return cveut of any jDerson or persons demanding the return or delivery up to 
 
 deposited with ^^^^^^ *^^ them of any deed, security, or other valuable deposited with the 
 bank for safe sd bank for safe custody, to deliver up to him or them such deeds, 
 *^"^ ° ^' securities, or valuables respively, notwithstanding the person or persons 
 
 demanding the return of the same, is or are a shareholder or share- 
 holders in the sd bank : And costs of the applicants of and incident to 
 this applicou to be costs in the winding-up. West of England, i.yc., Bank, 
 Malins, V.-C, 20 Dec, 1878. 2118 B. 
 
 Liberty to 
 
 discount bill 
 
 Form 506- Upon, &c.. It is ordered that the off. liq. of the co be at libty to 
 discount the bill for 710/. 125. 2f7. in his hands, and out of the proceeds 
 to pay the wages of the workmen of the sd co, which will become due 
 on the 19 May, 18G{), and for carriage of the goods and for the pchase 
 of coal to carry on the works of the sd co mentd in the sd afift of P., not 
 exceeding in the whole the sum of 550/., JS^ortlifietd Iron Co., M. E., 
 18 May, 18GG. 
 
 Form 507. Upon the applicou of H., the off. liq., of, &c., Order that the sd 
 H. be at libty to repay to the policy-holders of the sd co Avhose names 
 are set forth in the second column of the schedule to the sd aflft and 
 
 numbered respively to inclusi\-e in the first column of the 
 
 same schedule, the amounts set opposite to their respive names in the 
 seventh column of the sd schedule, being premiums pd by the sd policy- 
 holders to the sd liq since the date of the order to wind up the sd co, 
 
 Liberty to 
 repay pre- 
 miums paid 
 by mistake.
 
 CONTPJBUTORIES. * , 461 
 
 and which premiums had not accrued due at the date of tlie sd order, Form 507. 
 And order tliat in taxing- the costs of the sd H. as the prov. and off. liq. 
 of the sd CO all premiums received by him from policy-holders be 
 distinguished from his rccei])ts fi-om otlier sources, and that the date at 
 which such premiums respively become due be stated in the certificate, 
 and that his paymts in respect of such premiums l)e also distinguished, 
 And costs of and incident to a]iplicon to be costs in winding-up. British 
 Imperial Ijisim/ncr Co., Hall, V.-C, IG July, 1877, A, 1445. 
 
 For order authorising official liquidators to enter into contract for completion 
 of company's railway and pier, see Cape Breton Co., Malins, V.-C, 2 May, 1877. 
 A. 818. 
 
 For order confirming contract on behalf of company in liquidation to lay the 
 permanent way of a i-ailway over bridges, see Hamilton's Windsor Ironworks, 
 Fry, J., 29 Mar., 1879. A. (i51. 
 
 Conirilndories. 
 
 As to settling the list of contributories, see ss. 98 & 99 of the Act and Eules 
 29, 30, 31, 03, and 04, and Forms in Schedule to Eules, Nos. 24 to 43. 
 
 As to the liability of the contributories, see s. 38 of the Act. 
 
 S. 98 of the Act provides that the Coiu-t shall settle a list of contributories. 
 The list is to be prepared by the official liquidator, and to be verified by 
 affidavit. Rule 29. The list is to be left at the chambers of the judge, and an 
 appointment for settlement obtained, and notice is to be given : Rule 30. Before 
 leaving the list the schedule. Form 28, should be examined with a view to the 
 affidavit. Form 27, paragraph 1. The result of the settlement is to be certified 
 by the chief clerk. The following forms will be found in the schedule to the 
 rules. 25. List of contributories.- 24. Affidavit of official liquidator in support- 
 20. Notice to contributories of ai^pointment to settle list. 27. Affidavit of service 
 of notice. 30. Supplemental list of contributories. 29. Affidavit in support. 
 31. Certificate of chief clerk of settlement of list. 32. Order to vary list. At 
 the meeting to settle the list the affidavit of service of the notices and the 
 London Gazette and other papers containing the advertisement (if directed) must 
 be produced, and the settlement is then proceeded with. 
 
 Before or immediately after the list is left, the off. liq. should make and file 
 an affidavit identifying the company's books, so that they may be in evidence. 
 
 Usually all unopposed cases are taken first, and then the op]30sed. As regards 
 the latter, the official liquidator produces his evidence to fix the alleged con- 
 tributory, and then the alleged contributory produces his evidence in ojiposition. 
 
 The evidence is usually by affidavit, and when the chief clerk has gone into 
 it he gives his decision. If either of the parties think fit, the matter can there- 
 XTjoon be referred to the judge, or he can wait until the certificate has been filed, 
 and within 8 days afterwards take out a summons to vary or discharge the cer- 
 tificate. Orders of 1883, 70. As to discovery, infra, 498. 
 
 However, in most cases, if an alleged contributory is dissatisfied with the 
 chief clex'k's decision, he takes out a summons at once to strike his name oft' the 
 list, and if necessary, this summons is adjourned into Court. 
 
 The costs of a person unsuccessfully disputing his liability as a contributory 
 must, as a rule, be paid by the contributory. Goioer's case, G Eq. 77 ; Andrew's 
 case, 3 Ch. 161. 
 
 If the alleged contributory successfully dis^Dute his liability, he will get his 
 costs. Nation's case, 3 Eq. 77, and Forms 511 and 514, infra. And if costs are 
 given him, they will be payable out of the assets in priority to the liquidator's 
 costs. Home Investment Co., 14 C. D. 167 ; Re Dominion of Canada Co., W. N. 
 1884, 38; Re North Buckley Co., 24 S. J. 835. But see Re Dronfield, 23 C. D. 511.
 
 462 
 
 WINDING-UP. 
 
 Porm 508- On the pt of A. of 
 
 Summons, to 
 strike name 
 off list. 
 
 -, that the name of the applicant may be 
 struck off tlie list of contribs of the above-named co, and that the ofi". 
 liq. of the sd co may be ordered to pay the costs of this applicon. 
 
 Summons 
 to vary 
 certificate 
 
 Porm 509, On the pt of F, P.. one of the persons settled on the list of contribs of 
 the above-named co, by my chief clerk, that the certificate of my chief 
 clerk dated, &c,, of the result of the settlemt of the list of contribs of the 
 above-named co may be altered or varied as follows, namely, by excluding 
 the name of the applicant fi'om the first pt of the schedule to such certi- 
 ficate, and that such consequential directions may be given and correc- 
 tions and alterations made in the sd certificate as may be necessary. 
 
 Form 510. 
 
 Another. 
 
 That so much of the sd certificate of my chief clerk dated, &c,, as 
 certifies, that A. is the holder of 500 shares in the above-named co, 
 and as such has been placed on the list of contribs of the sd co may be 
 ^•aried by inserting in the sd certificate as the holder of 100 of the sd 
 
 shares the name of B. of , in the place and stead of the sd A., and 
 
 that such consequential directions, &c. 
 
 Form 511. Upon the applicon of the oflP. liq. of co to settle the list of contribs 
 Order to strike made out by him and left at the chambers of the M. E., wherein the 
 
 name off list, ^.^n^e ^f E. of has been included as a member holding 24 shares 
 
 to fix the name of the sd E. upon such list, and upon reading, &o.. Let 
 the name of the sd E. be struck oif the list of contribs for unpd shares : 
 And order that the sd oflF. liq. do pay to the sd E. the sum of 
 14?. lOs. Gd., being the ascertained amount of his costs of this applicon. 
 SoutJisea Floral Hall Co, M. R., 25th June, 1877. B. 1453. 
 
 Order to place 
 name in list. 
 
 Form 512. Upon the applicon of T. to review the list of contribs of co in respect 
 of the inclusion of the sd T. therein as an unpd shareholder, and that 
 his name might be struck out or entered as a fully pd-up shareholder, 
 and upon hearing the solors for the applicant and for the off. liq., &c. 
 [adj. into C'Q, Let the name of the applicant be placed in the sd 
 list for 150 pd-up shares only, And let the costs of the applicant and the 
 sd oflF. liq. be taxed, &c., and pd out of assets of co. Eiqnon Fuel and 
 Gas Co., Malins, V.-C, 17 Mar. 1877. A. 507. 
 
 Form 513. Upon the applicon of the oflf. liq., &c., Let the sd W. S. & S. be and they 
 Order to settle ^^^ ^^^^1 settled upon the list of contribs of the sd society as the exs of 
 executors in the sd S. deceased, in respect of 50 shares held by him in the sd co. 
 Croioi Co-operative Soc, M. 11., 20 Jan. 1877. A. 4;>7. 
 
 Form 514. Upon motion by way of appeal this day made unto this Ct by A. in 
 oTde7on pcrsou, and upon hearing counsel for the liq of co, and upon reading 
 
 appeal re- the ordcr dated 15 July, 1870 : Order that the sd order, w-hereby it was 
 appealed 'from, ordered that the name of the sd A. should be placed upon the list of
 
 CONTRIBUTORIES. 453 
 
 contribs of the sd co in respect of di'r20 shares therein npon which Form 514. 
 
 nothing- has been pel, l)e discharged, And declare that the sd A. held 
 
 and holds the sd shares as fnlly pd-up, and order (he so desiring) that 
 
 his name l)e not placed on the list of contribs of the sd co in respect of 
 
 the sd shares or any of them, And order that the liq of sd co do pay to 
 
 the sd A. his costs of and occasioned by the sd order, including his costs 
 
 of this api)lic(jn. such costs to be taxed by the taxing master. Wedfj- 
 
 v'ood Coal, dr., Co., Anderson'. s case, Ct of Appeal, 14 Nov. 1877, B. 
 
 2021. Sec also report in 7 t'. Div. 75. 
 
 Upon the applicon of the oft", liq., &c., that so much of the chief Form 515. 
 clerk's certificate dated, &c., as certifies that H,, N"., and J., the several Order refusing 
 persons whose names are set forth in the 2nd schedule thereto as ha^dng ^.pphcation to 
 
 Vtirv CGrtincito 
 
 been excluded fi'om the list of contribs might be varied by striking out 
 the sd 2nd schedule, and placing the names of the sd several persons 
 therein named in the 1st schedule to the sd certificate, and that such 
 consequential alterations and corrections as might be necessary might be 
 made in the sd certificate, and upon hearing the solor for the applicant 
 and for the respondents H., N., and J., and upon reading the sd chief 
 clerk's certificate. Let the sd applicon be dismissed. London and Pro- 
 vhickd, lie, Co., 11 April, 1877. B. G18. 
 
 Upon the applicon of 8., &c.. Let the sd chief clerk's certificate be Form 516. 
 varied by excluding the name of the applicant as a contrib of the sd co. Order varjdng 
 And let the name of the sd 8. be removed from the list of contribs certificate. 
 of the sd CO, no order as to costs of applicon, except that the costs of the 
 sd off. liq. be pd out of the assets of the sd co as and when the judge 
 shall direct. National Funds Assurance Co., M. R., 25 June, 1877. B. 
 1169. 
 
 Upon the applicon of the L. F. Association, contribs of the above- Form 517. ' 
 
 named co, and hearing the solors for the applicants and for the ott". liq. Order giving 
 of the sd CO, Let the applicants have further time to file their evidence *^^'f ^'^ ^^^ 
 in answer to the aflfts of the off. liq. of the sd co, and J), respively filed 
 in these matters on the Kith and 17th May, 1878, until the 18th June, 
 1878, Alexandra Palace Co., Malins, V.-C, 27 May, 1878. A. 977. 
 
 Upon the applicon of S. the off. liq. of co, and upon hearing the Form 518. 
 
 solors for the applicants, &c.. Let the time within which the applicant is Another. 
 to file his evidence in chief in support of the summons issued in the above 
 matters on the Kith of June, 1870, be further extended until the 7th of 
 Nov., 1876, and let the time within which the respondents are to be 
 at libty to file affts \\\ answer be extended to the 28th day of Nov., 187G, 
 and let the time within which the applicant is to be at libty to file affts 
 in reply be extended to the 4th of Dec, 187G. Wedfjicood Coal, &c., Co., 
 Malins, Y.-C. 2(; Oct., 187G. B. 1617.
 
 -164 WINDING-UP. 
 
 Form 519. Ui^on, &c., Let the applicant have 14 days further time to file his 
 Another. evideucc ill support of his summons to be removed from the list of 
 
 coutribs in reply to the evidence filed by the sd li(j. London and 
 Provincial, &c., Co., 18 Ap. 1877. B. 825. 
 
 Form 520. Upon the applicon of the off. liq. of co, and upon hearing the solor for 
 Liberty to ^'^^^ applicant, and upon reading an aflft of the sd off. liq., filed, &c., Let 
 employ the sd off. liq. be at libty to pay out of the assets of the sd co to E. P. 
 
 or to such person or persons as may give information enabling him to 
 recover calls from the contribs of the sd co who have not yet satisfied their 
 liability, a commission of 15 p. c. upon all sums not exceeding 400/., and 
 a commission of 1(» p. c. upon all sums exceeding 400/. which may be 
 recovered iw consequence thereof, And let such paymts lie allowed to 
 the sd off. liq. on passing his accounts. Estates Investment Co., M. R., 
 12 Jan, 1878. A. 50. 
 
 _^orm_521. Upon the applicon of L., the off. liq., &c., Let the applicant be at 
 Auotliev. libty to employ AY. P. to find out the whereabouts of the contribs meutd 
 
 in the schedule hto, And let the sd P. be allowed a conmiission of 20 
 p. c. on all amounts up to loO/. recovered from the sd contribs, and 15 
 p. c. between 100?. and 500/., and 10 p. c. on all amounts recovered 
 beyond 500/. National Funds Co., M. R., 28 Feb., 1878. B. •415. 
 
 For similar order by Fry, J., see St. Nazaire Co., 7 Ap. 1879. B. 685. 
 
 For order of M. E., authorising the employment of P. at a commission to dis- 
 cover whereabouts of contributories, and approving of the agreement which 
 had been prepared^ see Barned's Banking Co., M. E., 9 May, 1879. A. 1-190. 
 
 Calls. 
 
 As to calls, see ss. 102, 103, 105, and 100 of the Act. 
 
 The proceedings in regard to calls are regiilated by Rules 33, 34 and 35, 63 
 and 01. The following forms will be found in the schedule to rules : 33. Affi- 
 davit of official liquidator in svipport of proposal for call. 34.. Summons for 
 intended call. 35. Advertisement of intended call. 30. General order for a 
 call. 37. Notice to be served with general order for call. 38. Affidavit in sup- 
 port of application for balance order against contribiitories who have not paid 
 pursuant to the general order. 39. Order for payment accordingly. 40. Notice 
 to be indorsed on every order, directing payment into Bank of England. 
 41. Certificate of payment of money into Bank of England. 42. Affidavit of 
 service of order [39] for payment of call. 43. Affidavit of non-payment of 
 money by order directed to be paid into Bank of England. 
 
 These forms are so complete that it scarcely seems necessary to add to them ; 
 however, the following are given : — 
 
 Form 522. Upon tlie ai)plicon of the off. liq., Sm., Order that a call to the amount 
 
 CairtofulT ^^ ^^^^ ^^^^^ amount remaining unpaid be made on all the contribs of the 
 
 amount. sd CO whose names arc set out in the schedule to the sd chief clerk's 
 
 ceitificate in respect of the shares held by them in the sd co. And
 
 CALT.S. 4G5 
 
 [order for paymt into Bank]. Sovcreiijn & Belgian Stores Coal Co., Form 522. 
 15 July, 1877. B. 1480. 
 
 Upon the applicon of the off. liq., &c., It is ordered that the several Form 523. 
 persons named in the first column of the schedule to this order being- Jjr(jp^.fo^.p_^ 
 respively contribs of the sd syndicate do within four days after service of ment of calls 
 
 this order upon them respively pay to the off. licj. of the sd syndi- x^nrJ^istered."^ 
 
 eate at his office, No. in the City of London, tlie several sums of 
 
 money set opposite to their respive names in the fourth column of the 
 sd schedule, being the amounts due from the sd se^•eral persons respively 
 in respect of the calls of 50 p. c. 50 p.c. and 00 p. c. on the amounts respively 
 originally subscribed by each contriby made by the orders dated respively 
 the 1st of August, 1874, the 0th of April, 1875, and the 1st of June, 
 187G, or some or one of such calls. Royal Victoria Palace, Theatre 
 Syndicate, 5 April, 1878. B. 808. 
 
 For order to pay calls made before winding uj), see infra, Form 529. 
 
 Upon the applicon of W. the off. liq., &c., and upon hearing the solor Form 524. 
 for the applicant, and reading the chief clerk's certificate, &c., Order Li^ert^^to ^ 
 that the sd off", liq. be at libty to take proceedings in bankruptcy against take pro- 
 S. C. & W. respively contril)s of the sd co to recover the amoimts due ij,ankruptcv 
 from them in respect of the call of 5/. per share made pursuant to the 
 order in these matters, dated 15 Feb.. 1877. Heaton's Steel and Iron 
 Co., 2 June, 1877, A. 1219. See also si/pra. Form 404. 
 
 A balance order would appear to be a " final judgment" within the meaning Adiuiiiistra- 
 of paragraph (g) of s. 4 of the Bankrui^tcy Act, 1883. Consider Re Chinery, 28 tion proceed- 
 S. J. 327. See Re Hodges, 8 Ch. 204, as to proceedings by going company in ''^S«- 
 bankruptcy. 
 
 If any person made a contributory as personal rejiresentatiVe of a deceased 
 contributory makes default in paying any sum ordered to be paid by him, the 
 oiEcial liquidator can take proceedings to administer his estate. S. 105 of the 
 
 Act. The official liquidator may siie thus: "A. B. official liquidator of the 
 
 CO. limited (on behalf of the said company^ and all other the creditors of CD. 
 deceased)." See Turquand v. Kvrby, i Eq. 123 ; and he might see Re Hodges, 8 
 Ch. 20 i. 
 
 Upon the applicon of T. "\V. the off. liq., &c., and ujion hearing the Form 525. 
 solors for the applicant and for J. B. a contriby of the sd co appearing Liberty to pay 
 in person, and upon reading, &o., and it appearing that the only con- dividend to 
 tribs of the sd co holding fully pd-up shares are those mentd in ti^g ^o"^ "^" °"^^- 
 second colmnn of the schedule hto, Let the sd off. liq. be at libty, out 
 of the assets of the sd co to pay the several sums mentd in the 8th 
 column of such schedule to the sd persons mentd in the 2nd column 
 thereof being a return of ll5. Gd. per share to such persons as contribs 
 of the sd CO after deducting the several smns due from them to the sd 
 CO mentd in the 7th column of the same schedule. 
 
 H H
 
 466 
 Form 525. 
 
 WINDING-UP. 
 
 Schedule. 
 Contributories holding paid-up shares. 
 
 No. on 
 List. 
 
 Name. 
 
 AddresB. 
 
 Descrip- 
 tion. 
 
 No. of 
 
 Shares. 
 
 Amount of 
 
 return .at 
 
 lis. 6d. per 
 
 share. 
 
 Amount of 
 Indebted- 
 ness. 
 
 Amount to 
 be paid. 
 
 41 
 42 
 13 
 
 &c. 
 
 A. B. 
 
 CD. 
 E. F. 
 
 
 
 1 
 15 
 50 
 &c. 
 
 £ S. d. 
 11 G 
 
 8 12 6 
 
 28 15 
 
 &c. 
 
 .£ s. cL 
 13 6 8 
 
 7 15 10 
 &c. 
 
 £ s. d. 
 
 16 8 
 
 28 15 
 
 &c. 
 
 Hollylush Collier If, itr., ('o,\Q May, 1877, A. 1018. 
 
 The surplus assets, if any, will be divided among the contributories accord- 
 ing to their rights and interests. [See supra, p. 1G6.] An order for liberty to- 
 pay a dividend will be made on the application of the ofBcial liquidator. There 
 should be an .affidavit showing the position of affairs. 
 
 Form 526. Upon the appHcon of Vi. the off. liq., &c.. Let the applicant as sueli 
 Another. ^^^- ^^*^1- ^^^ ^^ ^^^ assets of the sd co pay to the several contribs of the 
 
 sd CO who have pd all the' calls made on them respively and l)eing the 
 several persons whose names are mentd in the second column of the 
 exhibit to the afsd afft of tlie sd applicant filed, ifec, the several sums set 
 opposite to their respive iiaraes in the oth column of the sd exhibit, 
 being the amount of a return of 1/. per share to which the sd several 
 persons as contribs of the sd co are entled. London & Hamburg Bank 
 Limtd., M. R., 30 July, 1878, B. 144.5. 
 
 Form 527. Upon the applicon of 8. & F., liqs of the co (which is in voluntary 
 Division in liquidon), &c., Let the applicants be at libty, subject to the paymt of 
 specie. the costs of all parties of and relating to this applicon and the paymt of 
 
 the remuneration of the sd applicants as such liqs, to di\'ide the cash 
 balance of 170/. remaining in their hands, and a sum of about 100/. due 
 to them from the V. Co, and to divide and cause to be transferred the 
 :52,813 fully pd-up shares of 21. each in the V. Co, which cash sum and 
 shares are the only remaining assets of the St. J. C. Co among the pre- 
 ference shareholders of the sd co in proportion to the number of pre- 
 ference shares held by them : Tax costs of all parties of and relating to 
 applicon, liqs to retain and pay same out of co's assets. ^Saint Josepli- 
 herg Copper Co., M. H., 10 May, 1879, B. 908. 
 
 In the above case, the articles of the company did not contain any power to 
 divide in specie, as at p. IGG, supra; and accordingly the order is valuable as 
 showing that in a proper case the Court will authorise such a division.
 
 ENFOECING CALLS. 
 
 467 
 
 Formal paris : see supra, Form 381. 
 
 Form 528. 
 
 On the pt of the off. hq. of the above-named co that the several ^X^rAy- 
 persons named in the second cohmm of the schedule hereunder written, meat of calls 
 being respively contril)s of the above-named co, may be ordered, within "^j^j^^j^^ °p* 
 4 days after service of the order to be made hereon, to pay to A., the 
 
 off. liq. of the sd co, at his office, Xo. Street, in the city of London, 
 
 the several sums of money set opposite to their respive names in the 
 ()th column of the sd schedule, such sums being respively the amounts 
 due from the ed several persons respively in respect of calls made by the 
 sd CO prior to the order to wind up the same. 
 
 The summons will be addressed : " To the several persons respectively named 
 ill the second column of the schedule hereinunder vn-itteii," and the schedule 
 Tvill be as follows : 
 
 The schedule above referred to. 
 
 No. on 
 
 list. 
 
 Name. 
 
 A.Mres.s. 
 
 Description. 
 
 In wliat character 
 included. 
 
 Amount due. 
 £, s. d. 
 
 
 
 
 
 
 
 Proceedings against contributories are frequently taken tinder s. 101. 
 
 The summons should be served on the contributories against whom the order 
 is soiTght, and an affidavit of service should be made. Form 27 in Schedule to 
 liules can easily be altered for this purpose. 
 
 Sometimes the application applies to calls made before the winding up, and 
 also to calls made by the liquidator. 
 
 Generally the application is made against several persons, but, if necessary, 
 it can be made against an individual. 
 
 A contributory in a limited company, cannot set off against money due from 
 liim to the company a debt due to him from the company. Grissell's case, 1 Ch. 
 528; West of England Bank, 12 C. D. 823 : Gill's case, 12 C. D. 755. But see 
 Campbell's case, 4 C. D. 470, and Mersey Co. v. Naylor, 9 Q. B. Div. 648. 
 
 Upon the applicon of S., the off. liq., &c., Order that the several Form 529. 
 persons named in the 2nd column of the schedule hto, being respively order to pay 
 contribs of the sd co, do on or before 9 January, 1878, or subsequently calls made 
 
 ■ ■, ■ 1 n ■ n ,^ ■ ^ ] l^ i c( \ w before wiudnig 
 
 Within 4 days after service of this order, pay to the sd o., as sucn on. ^^^^_ 
 
 liq., at his office. No. , Chcapside, in the city of London, the several 
 
 sums of money set opposite to their respive names in the 7th column of 
 the sd schedule, such suras being the amounts due from the sd several 
 persons respively in respect of arrears of calls on the shares in the sd co 
 
 H H 2
 
 468 WINDING-UP. 
 
 Form 529. held by them respively, And that tlie sd several persons do also pay to 
 ~~ the sd S. at the same time and place interest at the rate of 5/. p. c. p. a. 
 on the respive amounts specified in the sd 7th column of the sd schedule 
 from the time when each of such calls l)ecame due as mentd in the 6th 
 column of the sd schedule until paymt, and that tlie sd several j^ersons 
 do also pay to the sd S. at the same time and place the costs of this 
 applicon mentd in the 8th column of the sd schedule. 
 
 Schedule. 
 
 No. on 
 list. 
 
 Name. 
 
 Address. 
 
 Descriji- 
 tiiiu. 
 
 In what 
 character. 
 
 Date when 
 
 the respective 
 
 calls became 
 
 due. 
 
 Amount 
 due ex- 
 clusive of 
 interest. 
 
 Amount 
 due for 
 costs. 
 
 
 
 
 
 
 
 
 
 Commercial Clothing Co., IMahns, Y.-C, 3 Dec, 1877, A. 2123. 
 
 Creditors. 
 Advertisements. 
 
 As to the publication of advertisements, see Eules 7 and 20. Directions in 
 regard thereto are usually given, and the form of notice settled by the chief 
 clerk upon the appointment of the official liquidator^ or uj^on a summons for 
 directions taken out by him. Six weeks is the time generally limited for credi- 
 tors to send in their claims. For form of notice, see No. lU in the Schedule to 
 the Rules. The original form, signed by tife chief clerk, must be sent to the 
 London Gazette office for insertion. 
 
 List of claims and affidavit. 
 
 The offi jial liqviidator is to make out a list of the debts and claims, and leave 
 it at the chambers of the judge. See Rule 22 and Form No. 18 in Schedule to- 
 Rules. And before the time appointed for adjudication, he is to file an affidavit 
 as in Form 17 in Schedule to Rules. 
 
 Debts and claims x>rova,hle. 
 
 As to what debts and claims can be proved, see s. 158 of the Act of 1862, and 
 the decisions cited in Buckley, 302, et seq. 
 
 By s. 10 of the Judicature Act, 1875, it is provided (inter alia) that in the 
 winding up of any company whose assets may prove to be insiifficient for the 
 payment of its debts and liabilities and the costs of winding up, the same rules 
 are to prevail and be observed as to the respective rights of secured and imse- 
 ctired creditors, and as to debts and liabilities jirovable, and as to the valuation 
 of annuities and future and contingent liabilities respectively, as may be iu
 
 CEEDITORS. ■ 109 
 
 force for the time beiny under the law of bauki-uptcy with respect to the estates Form 529 
 
 of persons adjudged bankrupt; and that all persons ■who in any such case would 
 
 be entitled to prove for and receive dividends out of the assets of any such 
 
 company, may come in under the winding up of such company, and make such 
 
 claims against the same as they might respectively be entitled to by virtue of 
 
 the Act. This section is not retrospective : it only applies where the winding 
 
 up commenced after Nov. 1, 1875. Suche (Sf Co., 1 C. D. -±8. 
 
 As to its construction, see Withernsea Co., 16 C. Div. 337 ; Kit Hill Tunnel, 
 16 C. Div. 590; Mersey Steel Co. v. Naylor, 9 Q. B. Div. 648, which case shows 
 that it introduces the bankruptcy mutual credit clause. See also Milan Tram- 
 ways, 22 C. D. 122 ; W. N. 1884, 12 ; Williams v. Hopkins, 18 C. Div. 370 ; Re 
 Maggi, 20 C. D. 545. As to the priority accorded to wages of clerks, servants 
 and labourers, see the Companies Act, 1883 (46 & 47 Vic. c. 28), 
 
 As to interest on debts. 
 
 In the case of an insolvent company which is being woimd up by or under 
 the supervision of the Court, creditors whose debts carry interest are entitled 
 to dividends only upon what was due for principal and interest at the com- 
 mencement of the winding up, and it is only in the event of there being a 
 surplus that they ax'e entitled to subsequent interest. Warrant Finance Com- 
 pany's case, 4 Ch. Ap. 643. 
 
 Allowance. 
 
 In many cases debts and claims are allowed upon the official liquidator's 
 affidavit (filed pursuant to Eule 22) that, in his opinion, they are justly due 
 and proper to be allowed without further evidence. In case of any such allow- 
 ance, notice thereof is to be given to the creditor. Kule 23 and Form No. 19 
 in Schedule to Rules. 
 
 Proof of debts. 
 
 Rule 24 provides that " the official liquidator shall give notice to the credi- 
 tors whose debts or claims have not been allowed upon his affidavit, that they 
 are required to come in and i^rove the same by a day to be therein named, 
 being not less than four days after such notice, and to attend at a time to be 
 therein named, being the time aj^pointed by the advertisement, or by adjourn- 
 ment (as the case may be) for adjudicating upon such debts and claims." For 
 form of notice, see No. 20 in Schedule to Rules. Such creditors as come in and 
 prove their deVjts or claims pursuant to notice from the official liquidator, are 
 to be allowed their costs of proof, in the same manner as in the case of debts 
 proved in a cause (Rule 27), i.e., the costs of proof will be added to the debt. 
 Lombard Bank, 45 L. T. 346 ; 50 L. J. Ch. 749 ; Buckley, 575. 
 
 A creditor to whom notice to come in and prove has been given will before 
 the day mentioned in the notice file his affidavit and give notice thereof to the 
 official liquidator. For forms of affidavits, see Form 21 in Schedule to Rules, 
 and Foi-ms 530, et seq. infra. As to extending time to file evidence, see Form 
 540, infra. Re Marseilles Extension Co., 26 S. J. 296. 
 
 As to discovery, see infra, p. 498. 
 
 As to cross-examining on affidavits, see infra. Form 620, et seq. 
 
 As to obtaining the evidence of witnesses, see infra, after Form 626. 
 
 Form 530. 
 
 1. The above-named co was ou the day uf , the date of the 
 
 winding-up order herein, and still is justly and truly indebted to me in Affidavit to 
 the sum of 1. for principal money due on a bill of excliange dated due\nbi]lof 
 
 exchange.
 
 470 WINDING-UP. 
 
 Form 530. the , 188 — , drawn l)y me upou, and accepted by the sd co for the 
 
 paymt of lOuZ. to nie — — months after the date thereof, together with 
 
 interest for the sd sum at the rate of ;"»/. p. c. p. a. from the day of 
 
 , 188 — , and which sd bill of exchange is now produced and shown 
 
 to me, and is marked A. The consou for the sd bill was, &c. 
 
 2. And I, speaking positively for myself, and to the best of my know- 
 ledge and belief as to other persons, say that I have not nor hath nor 
 have any other person or persons, by my order, or for my use, received 
 
 tlie sd sum of 1., or any pt thereof, or any security or satisfon for 
 
 the same or any pt thereof, except the sd bill of exchange. 
 
 Porm 531. I, A., of , in the city of London, carrying on Imsiness there in 
 
 Affidavit Ly partnership Avith B, & C. under the style or firm of A., B. & 8on, make 
 
 partner i)rovi]ig oath and Say as follows : — 
 
 £j.j^_^ 1. The above-named co was, at the date of the Avinding-up order 
 
 made in these matters, and still is justly and truly indebted to me and 
 
 to the sd B. & C. in the sum of /. for principal money due to my sd 
 
 firm as the indorsees of a lull of exchange dated the day of , 
 
 drawn l)y upon, and accepted by the sd co for the sum of 5(»0?. 
 
 payable to the order of K. six months after the date thereof, and for 
 
 interest thereon at the rate of 5 p. c. p. a. from the day of , 
 
 Avhen the sd bill became due. The conson for the sd bill Avas, &c. 
 
 2. The sd bill of exchange is now j^roduced and shoAA'u to me and 
 marked X. 
 
 3. I haA'e not nor hath my sd firm, nor hath nor have any person or 
 persons, &c. 
 
 Form 532. 1- I ^m the secretary of The B. Co, Limtd, of afsd, and 
 
 \ttidavit of authorised to make this proof of debt by the sd co. 
 
 i^eeretary of a 2. The X. Co abovc-uamcd Avas, at the date of the winding-up order, 
 
 in^ISt (Fur* ^it-rein, and is still indebted to the B. Co in the principal sum of /., 
 
 Lis company, upon and liy virtue of the several bills of exchange mentd and set forth 
 in the schedule hto. 
 
 3. The conson for the sd bills of exchange in the hands of the B. Co 
 Avas money to the full amount thereof less discount thereon adA'anced 
 and pd by the B. Co to the holder or holders thereof. 
 
 4. It is within my knoAvledge as such secretary as afsd that such debt 
 was incurred as and for the conson above stated, and the same to the 
 best of my knoAvledge and belief still remains unpaid and unsatisfied, 
 
 5. The sd B, Co hath not nor have I nor hath nor iiave any other 
 person on its behalf or by its order, or to my knowledge or belief for its 
 use, had or recei\'ed any security or satisfon Avhatever for the sd sum of 
 
 /. or any pt thereof, save and except the sd several bihs of exchange 
 
 specified in the schedule hto ; but the Avhole of the sd sum of /., 
 
 together \Aith interest on the respive amounts of the sd several bills of 
 exchange froiu the days on Avhich they respi\-ely became due, still
 
 CREDITORS. 
 
 471 
 
 remains justly due and owing to the sd B. Co from tlie sd N. Co, upon Form 532. 
 and by virtue of the sd several bills of exchange hinbefore meutd. 
 
 The Schedule referred to in the above Affidavit. 
 
 Note 
 or 
 Bill. 
 
 Date. 
 
 Drawer. 
 
 Accejitor. 
 
 Sum. 
 
 Payable to. 
 
 When and 
 
 how- 
 payable. 
 
 Indorsees. 
 
 
 
 
 
 
 
 ■ 
 
 
 As to companies authorised to sue by public officer, see Ex parte Torkington, 
 9 Ch. 298 ; Ex parte Lowenthal, 9 Cli. 324. 
 
 I, J. C, of — ■ — , accountant, the off. liq. of the M. Co, liimtd, make Form 533. 
 oath and say as follows : AffidavirbT" 
 
 1. By an order of the M. R., dated, &c., the M. Co was ordered to be official liqui- 
 wound up under the provisions of The Cos Acts 18(12 and 18(i7. debtVu^t!:^" 
 
 2. By an order dated, &c., I was a])pointed off. liq. of the sd M. C^o. liis company. 
 
 3. It appears from the books and papers of the sd M. Co which came 
 to my hands as off", liq. thereof that the sd C Co wns, at the date of the 
 ■winding-up order herein and still is justly and truly indelited to the M, 
 Co in the sum of J., for, &c. 
 
 4. The M. Co. hath not, &c. 
 
 1. By a debenture dated the day of, and under the common seal Form 534. 
 
 of the above-named co the sd co for the couson therein expressed promised Affidavit to 
 
 to pay me on the day of the sum of 100/., And the sd co prove debt due 
 
 thereby promised to pay me interest on the sd sum in the meantime at °" <^ejeutuie. 
 the rate of 10/. p. c. p. a. by equal half-yearly paymts on the day 
 
 of and day of in each year. The sd debenture is now 
 
 produced and shown to me, and is marked A. 
 
 2. The sd co was, at the date of the winding-up order made herein, 
 and still is justly and truly indebted to me in the sum of 100/., with 
 
 interest thereon at the rate of 10 p. c. p. a. from the day of , 
 
 upon and by virtue of the sd debenture. 
 
 3. And I, speaking positively, &c. 
 
 1. The above-named co was, at the date of the order for winding up Form 535. 
 the same, and still is justly and truly indebted to me in the sum of 
 
 -/. 
 
 Affidavit 
 
 for work done and professional services rendered to the sd co at its proving debt 
 request, the parlars whereof are set forth in the paper writing now a^ountant. 
 produced and shown to me marked with the letter A.
 
 472 
 
 WINDING-UP. 
 
 clue to solicitor. 
 
 Form 635. 2. The charges in the sd paper writinjj^ are fair and reasonable and 
 such as are usual and customary in the profession of an accountant : as 
 
 I know from having practised such profession for years last past. 
 
 3. And I, speaking-, &c. 
 
 Form 536. i. The sd co was, at the date of the winding-up order herein, and 
 Aiiidavit stUl Is justly and truly indebted to me in the sum of lO-A/. 7s. id., l)eing 
 
 proving debt j-j^g remuneration payable to me under and by virtue of the articles of 
 
 due to director .. „_ -, „ . ^ 
 
 for fees. assocuitiou of the sd co for services rendered by me as a director of the 
 
 sd CO between the of — — and the of . 
 
 2. And I, speaking, &c. 
 
 Form 537. 1. The above-named co was, at the date of the order for winding up 
 the same, and still is justly and truly indebted to me and to my partner 
 H. in the sum of 105/. for law charges -and paymts made on behalf of 
 the sd CO in the matter of the con^'eyance and mtge of certain laud at 
 
 ■ and for professional advice and work done for the sd co as appears 
 
 by the account now produced and shown to me marked with the letter X. 
 
 2. The charges in the sd account are reasonable and such as are usual 
 ])etweeii solors and clients, as I know, &c. 
 
 3. I have not nor, &c. 
 
 The practice is for the Chief Clerk to sign a request to the taxing- master to 
 tax the solicitor's bill. After the bill is taxed the parties come again before the 
 Chief Clerk and the claim is supported by the taxing master's original cer- 
 tificate, which is not filed. 
 
 Form 538. i. The above-named co, &c., for goods sold and delivered l^y me to 
 
 Affidavit tlie sd CO at their request. 
 
 proving debt 2. The full parlai's, &c. 
 
 and^delivered. •^- The prices charged in the sd paper A\Titing marked A. are fair and 
 reasonable and such as are usual and customary in the trade or business 
 of an [iron merchant], as I know from having carried on the sd trade or 
 business for years last past. 
 
 4. And I, speaking, &c. 
 
 Form 539. 1 . By an indenture dated, &c., now produced and shown to me and 
 Affidavit to marked A. and made between the above-named co of the one pt and 
 prove mort- mysclf of the othcr pt, the sd co granted certain freehold hereds, situate, 
 
 Valuation of '-^^•' ^^^^^^ ^^^ ^'^ ^^^^ ^^^ ^^ ™^^' '^^^ ^^civ& and assigus : subject to a 
 
 security. proviso therein contd for the redemption of the sd premes upon paymt by 
 
 the sd CO unto me of the sum of 1(M»0/. with interest for the same at the 
 
 rate of .5/. p. c. p. a. on the day of : And hj the sd indenture 
 
 the sd CO covenanted to pay me the sd principal sum of 1000/. and 
 
 interest on the sd day of , and, in case the sd principal sum 
 
 should not be i)d on that day, then to jiay me intei'cst on the same sum 
 
 after the rate afsd by equal half-yearly paymts on the ■ of and 
 
 of in every year. 
 
 2. The sd co was, &c. 
 
 3. And I, speaking positively, &c. 
 
 4. I estimate the value of my sd security at the sum of 000/., and I
 
 C'EEDITORS. 473 
 
 claim to be eutled to prove in the windiug np of the sd co for the sum Form 539. 
 
 of /,, being the balance of the sd smn of 1000/. and the interest 
 
 thereon after deducting the sd sum of GOO/. 
 
 As to valuing security, see infra, p. 480 ; and Moor v. Anglo-Italiati Bank, 
 10 C. D. G81 ; Re Western District Bank, 23 S. J. 880 ; Kit Hill Tiumel, 16 C. Div. 
 590 ; Williams v. Hopkins, 18 C. Div. 370. Kejection of secured creditor's proof 
 remits him to his rights as mortgagee ; S. C. 31 W. E. 495 ; 48 L. T. 513. 
 
 Upon the applicon of R. of, &c., and hearing the solors for the ap- Form 540. 
 plicant and for the above-named co, liet the time within which the ap- Order giving 
 plicant may file afits in reply to the affts filed by the off. liq. of sd co in t™e to file 
 opposition to the claim of the applicant be extended to 23 July, 1877. 
 Coal Consumers' Association, M. R., \?> July, 1877. A. 1327. 
 
 Where a creditor has been required to come in and prove his debt, he some- 
 times applies for further time to tile his evidence, and if at the time fixed for 
 adjudicating on the claim the evidence on either side is not complete, the 
 matter is usually adjourned, but in such case the chief clerk generally fixes a 
 time for closing the evidence. However, where this has been done, aiiplica- 
 tions to extend the time may subsequently be made, and will be granted if 
 reasonable grounds are shown. 
 
 Upon the applicon of the off. liq., itc, and upon hearing the solors Form 541. 
 for the applicant and for T. H., Let the time for the applicant to file Another 
 evidence in answer to the evidence in support of the claim of the sd 
 T. H. be extended to the 25th of October next. Orrcll ( 'oUiery Co., 
 Limtd., ]\r. R., 3 August, 1878. 15-1:8 B. 
 
 Upon the applicon of the aljove-named co and upon hearing the solors Form 542. 
 for the applicants and for the sd S., Let the sd 8. within 7 days after r~r ^ 
 
 . ^ . . . -^ ( Irder tor 
 
 the service of this order deliver to the applicant further and better ijetter par- 
 
 parlars with dates and items of the claim of the sd S, in these matters ; tj'^li'l'ii's o^ 
 
 .... . , . claim. 
 
 And order that the time within which the applicants are to file evidence 
 
 in opposition to such claim be extended to 21 days after the delivery of 
 
 the afsd parlars ; And that the time within which the sd S. is to file 
 
 evidence in reply be extended for 7 days after the evidence in opi)o- 
 
 sition has been filed ; And order that the costs of this applicon l)e costs 
 
 in the matter of the sd claim. Retford Waggon Co., Luntd., M. R. 
 
 18 May, 1878. 1020 B. 
 
 This order was made in a voluntary winding-up, but similar orders are 
 sometimes made in compulsory liquidation. 
 
 Summons to admit. 
 
 Sometimes if there appears to be unnecessary delay in admitting a claim, 
 or if a claimant desires to bring matters to a speedy issue, it is considered 
 desirable to take out a summons as follows : 
 
 Formal parts: see supra, Form 381. 
 
 On the pt of X. of that the off. liq. of the above-named co Form 543. 
 
 may be ordered forthwith to admit the applicant as a creditor of the sd .Summons to 
 
 CO for [ /.]. admit.
 
 474 
 
 WINDING-UP. 
 
 Form 543. [Or, for such an amount as shall be ascertained to be the damages sustained 
 hy the applicant by reason of the non-delivery, &c., and that all necessary 
 inquiries for the purpose of ascertaining such damages may be directed.] 
 See Ebhiv Vale Co.'s claim, 8 Eq. 14. 
 
 The following order was made on such a summons : 
 
 Porm 544. Upon the upplicon of Messrs. ^Y. H. Smith & Son, &c., Order that 
 Order to admit. ^^^'^ d^ini of thc sd W. H. Smith & Son be allowed at the sum of 250/. 
 together with 10/. 105. Gd., the ascertained costs of proving the same. 
 South WctJps Attantic, <ir., Co., M. R., i>4 Jan. 1878. B. 171. 
 
 Form 545. The applicon of the Bank of L., &c., adjourned into Ct and now 
 Another orde7 coming on, &c., Order that the applicants be allowed as creditors of the 
 to admit. sd CO for the sd sum of 2409/. lis. Gd., And let the costs of the Bank of 
 
 L. of this applicon and of the adjournmt thereof into Ct be allowed out 
 of the assets of the sd co, such costs to be taxed, »fec., in case the parties 
 differ. General South American Co., Malins, Y.-C, 24 Xov. 1877. A. 
 :>22:>. See 7 C. 1)."G37. 
 
 Form 546. 
 
 Order to vary 
 certificate. 
 
 Certificate of Debts and Claims. 
 
 Eule 28 jirovides that the result of the adjudication upon debts and claims 
 is to be stated in a certificate to be made by the chief clerk, and that certificates 
 as to any of such debts and claims may be made from time to time. 
 
 For form of certificate, see. No. 22 in Schedule to Rules. 
 
 A claimant whose claim is disallowed, can appeal without waiting for the 
 certificate. Re Clagett, 20 C. Div. 134. 
 
 Until certificate a secured creditor has a locus 2>oenit entice. Williams v. 
 Hopkins, 18 C. Div. 370. 
 
 Upon the applicon of W. to vary the chief clerk's certificate, filed, &c., 
 Jjet the chief clerk's sd certificate be varied by striking out of the 4tli 
 column of the 1st schedule thereto the figures I'oGt. bs. Od., as the 
 amount of the debt of the applicant, and inserting the sum of 
 290/. 5cs-. Gd. in lieu thereof, and l)y striking out, c^'c, And let the sd off. 
 liq. be allowed his costs of this applicon and of the adjournmt thereof into 
 Vt out of the assets of the sd co. Hocicte// Bail Collieries Co., Malins, 
 Y.-C, 8 Dec. 1877, A. 218;-). 
 
 Form 547. Upon the applicon of the off. liq., &c., Let the debt or sum of 
 Another. 40.-)/. 12-9. lOd. claimed l)y the sd L. and allowed by the sd certificate be 
 
 e.\])unged from the sd certificate and disallowed on the ground that the 
 sd L. has received monies of the co more than equal to the amount of 
 the sd debt, And let the off", liq. be at liljty to prove agaiust the estate of 
 the sd L. for the balance of the sd sum of 1000/. received by him with 
 interest at 4 p. c. p. a. from 21 April, 187;^, after deducting the sd sum 
 of 405/. 12.9. \0d., And costs of off. liq. of applicon to be costs in the 
 winding-up. Air Gas, <)V., Co., Hall, Y.-C, 11 March, 1878. A. 475. 
 
 Form 548. T^jton the applicon of M., F. & "W., persons named in the list of con- 
 Order giving ^^""'^ '" these matters, and upon reading, &c., Order that the applicants
 
 CEEDITOES. 475 
 
 be at libty to give notice of motion in these matters that so much of the Form 548. 
 sd certificate of the chief clerk, dated the loth and filed the 22nd of contributories 
 
 Feb., 1877, as certifies the allowaiice of a debt of C. of , solor, may liberty to move 
 
 be varied by disallowing- the sd debt, iVnd that the costs of this applicon certificate. 
 be dealt with on the sd motion. Severn Junction Railwcnj Co., 22 June, 
 1877. B. 1140. 
 
 On the pt of A. of that notwithstanding the time limtd for Form 549. 
 
 makiuQ- claims has expired he may be at libty to make and estal)lish his "^ ' 
 
 ° . ^ '' '' iMiiDiiions lor 
 
 claim as a creditor of the sd co for the sum of /. liberty to prove 
 
 after time 
 A creditor or claimant who does not conie in at the proper time must explain expired. 
 
 his conduct, e. g., by showing that he did not see the advertisements, or know 
 
 of the winding-up ; but if he can give some reasonable explanation, the Court 
 
 will allow him to come in and take a dividend out of the undivided assets. See 
 
 as to the practice in such cases in administration actions, Dan. Pr. 1096 ; 
 
 Morgan, 140. In re Mitcalfe, 13 C. Div. 236. Re Kit Hill Tunnel, 16 C. D. 590. 
 
 The application should be supported by affidavit. 
 
 Upon the applicon of ^Y., that notwitlistanding the chief clerk's cer- Form 550. 
 tificate as to debts and claims in these matters has been made, the del)t Order givini; 
 or claim of the sd W. against the co be ]iow allowed at the sum of ^''"^^'t.v to i'i'"^'e 
 
 . . -, 1 ■ after time 
 
 86/. 13^. -id. as a debt not carrying interest, and upon hearing the expired, 
 solors for the apjilicant and for N. the off. liq. of co, and upon reading, 
 etc., Order that notwithstanding the sd chief clerk's certificate the appli- 
 cant be allowed to stand as a creditor of the sd co for the sum of 80/., a 
 debt owing to him by the sd co not carrying interest, but in any further 
 distribution of the assets of the sd co among the creditors and before any 
 paymt is to be made to the applicant in respect of the debt allowed as 
 afsd, regard is to be had to the fact that the applicant is noAV subject to 
 liability as a contrib of the sd co, And let the applicant pay to the sd X. 
 as such oflF. liq. the sum of 21. 2s. Od. for his costs of the appHcon. 
 Monte Loreto Gold, q-c, Co., Hall, Y.-C, 8 May, 1877. B. 1049. And 
 see A7/ Hill Co., Ex parte Williams, 10 C. D. 51)0. 
 
 On the pt of the oflF. liq. of tlic above-named co that he may be at Form 551. 
 libty to pay, &c. [as in Forms 552, el seq. infra]. Summons for" 
 
 When the chief clerk's certificate has been filed, and the time for applying to ,'. ^.\-^ " P^'^y 
 
 . . . 1 1 .7 o dividend to 
 
 vary the same has passed, the official liquidator will, if and when he has sufficient creditors 
 funds in hand, apply for liberty to pay a dividend to the creditors. 
 
 The application should be supported by the official liquidator's affidavit, 
 which should show that the assets are more than sufficient to pay the proposed 
 dividend, and to provide for the costs of the winding-up. 
 
 Liberty to pay a dividend is sometimes given where some claims still remain 
 in dispute, but in such case the liquidator must show that the assets retained 
 will be more than sufficient to pay the dividend on the disputed claims as well 
 as the costs of winding-up. It would seem that if a secured creditor does not 
 abandon his security or value it [see infra, p. 480], and come in and prove for 
 the balance, the official liquidator is not bound to make a reserve to meet any 
 claim that may subsequently be made by him. Ex -parte Good, In re Lee, 
 14 C. Div. 82; Kit Hill Tunnel, 16 C. Div. 590.
 
 47() 
 
 WINDING-UP. 
 
 Form 551. Separate cheques for sums under 20s. will not be signed, but one cheque will 
 
 be drawn in favour of the liquidator for the amount j he undertaking to pay. 
 
 Sometimes leave to pay in full debts under 20s. is given. 
 
 Form 552. 
 
 Order giving 
 lU>erty to pay 
 dividend. 
 
 Upon the api)licoii of tlie off. liq. of co, and upon hearing the solors 
 for the apphcant, and upon reading an order, &c., the chief clerk's cer- 
 tificate dated, &c., an afFt of the off. liq. filed, &c., and the exhibit A. 
 therein referred to, Let the off. lici., out of the assets of the sd co, pay to 
 the several persons named in the 1st column of the schedule hto, being- 
 creditors of the sd CO named in the sd chief clerk's certificate, filed the 
 
 of , the several sums of money set opposite their respivo 
 
 names in the 4th column of the sd schedule : such sums being a divi- 
 dend of 10s. and five-eighths of a j^euny in the pound upon the amount 
 of the debts due to such respive creditors as mentd in the 3rd column 
 of the sd schedule. [Add srJieduh shoiving (1), No. in cldef cleric' s ccr- 
 iijkaie ; (2), name of creililor ; (o), amount certified to he due; (-4), 
 amount of dividend.'] Briijhtun Ctarendon Hotel Co., M. R., 5 Aug. 
 1878. A. 157U. 
 
 Form 553. Upon the applicon of C, the off. liq., &c., Let the applicant, out of 
 ' the assets of the sd co, pay a dividend of Is. in the pound to the several 
 creditors named in the 1st and 2nd pts of the 1st schedue to the chief 
 clerk's certificate dated, &c., upon the amounts of their respive debts 
 therein mentd. General Sewaije 4' Manure Co., J\I. R., 7 May, 1878. 
 A. 931. 
 
 Another. 
 
 Form 554. 
 
 Another. 
 
 Upon the applicon of the off", liq., &c., Let the sd oft", liq. pay to the 
 several creditors named in the chief clerk's certificate dated 15 Feb. 
 187C, and in the schedule hto, out of the assets of the sd co, the sums 
 set opposite to their respive names in the sd schedule in the 7th column 
 thereof, being the amount of the final dividend and interest due to them 
 in respect of their sd debts. 
 
 Schedule. 
 
 No. 
 
 Names of 
 creditors. 
 
 Total due 
 15 Feb. 1876. 
 
 Dividend of 
 15s. ill the £ 
 on account. 
 
 Balance 
 due. 
 
 Interest up to 
 10 Jiaie, 1877. 
 
 Total. 
 
 
 
 
 
 
 
 
 Holywell Level Sih'er Co., Malius, V.-C, G June, 1877. A. 1124. 
 Form 55 5. Upon the applicon of A., the off. liq. of tlie above-named co, and
 
 DIVIDENDS TO CREDITOES. 477 
 
 upon reading an afft of the sd A., filed the 20 July, 1881, an order Form 555. 
 
 dated 30 July, 1881, the chief clerk's certificate dated the 30 July, 1881, 
 
 And upon hearing the solors for the applicant it is ordered that the sd 
 
 oif. liq. be at lil)ty to declare and pay out of the assets of the co an 
 
 interim dividend of 4.s'. in the pound to all the creditors of the co whose 
 
 debts have been allowed by the sd chief clerk's certificate, dated 30 
 
 July, l.ssi, except Count j\Iokrouoski. 
 
 Upon the applicon of ^Y., the liq, and upon hearing counsel for the Form 556. 
 liq and for B. & C. the pits in an action of, &c,, Order that notwith- Liberty to pay 
 standing the claim of the pits in the sd action against the co, the liq I)e at divideiul 
 libty to declare and pay a first dividend not exceeding 8^. in the pound f^^ disputed 
 upon the debts aiul claims against the co which have been allowed by claims, 
 him at the date of this order, amonnting to C>7,'.)-J}I. l(;.s\ 9^/. : Provided 
 that the applicant do reserve out of the assets of the co a sum sufficient 
 foi' the paymt of a like dividend upon the snm of 37,714/. referred to in 
 
 his sd afft and upon the sum of ■?. in respect of the claim of the sd 
 
 B., Liq to be at libty to retain his costs out of assets ; Costs of B. and 
 pits to be reserved until further order. HopJcins, GilJces, d' Co., M. E., 
 10 Dec, 1879. A. 2415. 
 
 1. I have been requested l)y Messrs. D. to pay them the snm of /. Form 557. 
 
 in respect of services rendered by them to the sd co whilst in liquidon. Affidavit ^ 
 the parlars of which are set forth in the paper ^mting now produced ^y official 
 and shown to me and marked A. 
 
 2. I have examined the al)ove claim, and to the best of my judgmt it 
 is just and ought to be pd in full out of the assets of the sd co. 
 
 In the course of a winding-up, debts are from time to time incvirred which 
 ought to be paid in full, e. 3., valuations, i-epairs, rent, materials supplied, costs, 
 &c., and where no general order has been made giving the requisite authority, 
 the liquidator must from time to time apply for liberty to pay such debts. In 
 many cases no order is drawn u}) on such applications, but the summons is 
 indorsed with a note that the liquidator may pay, and is to be allowed the 
 amount in his next account. 
 
 As to payment in full of creditors entitled to levy execution or distrain, see 
 infra. Forms 608, 610. Sometimes, instead of directing payment, such persons 
 are permitted to issue execution or distrain. Ibid. 
 
 Upon the applicon of the off. liq., &c., Let the sd off. liq. out of the Form 558. 
 assets of the sd co ])ay to the sd Y. the sum of 1,029/. 4s. Sd., the 7^, ~ 
 
 '^ •' ' ' Liberty to jxay 
 
 amount of rent and royalties due to him on the 31st March, 1877, in rent, 
 respect of ppty leased to the sd co situate at, &c. Darlaston Steel & Iron 
 Co., M. R., IG June, 1577. A. 1127. 
 
 For order giving official liquidators liberty to pay the salaries of the clerks 
 
 employed at the different branches of the company for the purposes of the 
 
 winding-up, see West of England, S{c., Bank, Fz-y, J., 7 July, 1879. B. 1421 ; 
 
 and see supra, p. 469. 
 
 Form 559. 
 
 Upon the applicon of F. the liq of co by summons dated 30 July, Liberty to 
 
 pay rates.
 
 478 
 
 WINDING-UP. 
 
 Form 559. 1^77, and upon hearing the solors for the applicant and for the overseers 
 of DarUngton, and upon reading an order in these matters dated 7 July, 
 1877, Let the sd hq 1)e at libty out of the assets of the sd co to pay to 
 the overseers of DarUngton the sum of 2127. 7s. 2hd., being the amount 
 of the poor-rate made and allowed on the 1st of May, 1877, in respect 
 of the go's premes (retained in beneficial occupation of the liq), and that 
 the sd liq ])e allowed the same in his accounts of receipts and paymts, 
 And let the sd liq pay the sum of 2?. 25. to L. the solors of the sd over- 
 seers of D., l)eing the amount of their ascertained costs of this applicon. 
 South Durliam Iron Co, Hall, Y.-C, 3 Aug., 1877. B. 1476. 
 
 See Watson, Kipling 'Sf Co., 23 C. D. 500. 
 
 No apportioument. Wearmouth Co., 19 C. D. 640. 
 
 As to demand of poor-rate, see 31 »t 32 Vict, c, 122, s. 40. 
 
 Form 560. Upon the applicon of G., the off. liq.. &c., Let the sd G. as such off, liq. 
 Liberty to ^^'^ ^^ libty to pay out of the assets of sd oo to the several ^jersons named in 
 pay costs, &c. the 1st colmmi of the schedule to this order the several sums set opposite 
 to their respive names in the third column of the same schedule. 
 
 Schedule. 
 
 Names of creditors. 
 
 Particulars of claim. 
 
 Amount of debt. 1 
 
 1 
 
 M. of, &c. . . . 
 
 Eent and royalties of, &c. . 
 
 £, s. d. 
 1687 18 9 
 
 M.T.&Co.,of 
 
 solicitors. 
 
 Costs of petitioners, by the said order 
 of 7 Aug. 1877, directed to be taxed 
 
 72 13 2 
 
 B. B.&Co.,of 
 
 solicitors. 
 
 Costs of J. D., by the same order di- 
 rected to be taxed .... 
 
 15 6 
 
 Governor and Co of Copper Miners, Hall, V.-G., 20 Dec, 1877, A. 2295. 
 
 See supra, Note to Form 411. 
 
 In practice an order is rarely necessary for payment of costs alone : an 
 appointment before the Cliief Clerk is obtained : the taxing master's certificate 
 is produced, and directions are given for the preparation of the cheque. 
 
 Paijment of Preferential Dehts. 
 
 Form 561. Upon the applicon of T. & C., the prov. off. liq. of the above-named 
 Bank, and upon hearing the solors for the applicants and for the sd 
 Bank and for Her Majesty's Postmaster-General, and upon reading, &c., 
 Let the applicants as such prov. liqs. forthwith out of any assets in 
 their hands pay to Her Majesty the Queen or her duly authorised agents 
 the sum of 3097. Ihs. Od. : such sum having been in the hands or con- 
 trol of the sd Bank at the date of its suspension and in respect of which 
 writs of immediate extent have been issued, and which sum is made up 
 as follows : — 
 
 1007. 05. Od., Being 20 bl. notes of the West of England, &c. Bank 
 held by H. M.'s P. M. Gen. when the sd Bank 
 stopped paymt. 
 
 Order to pay 
 crown debt.
 
 SECURED CREDITORS. 479 
 
 200/. Os. Od., Being for tliree bills of the sd Bank for 120?., rm., and Form 561. 
 80/. respively, held by H. M's. P. M. Gen. -when the 
 sd Bank stopped paymt. 
 G!)/. lbs. 0(L other monies of Her Majesty. And order that the costs 
 of the sd proT. liqs. and of the sd Bank of this applicon and incident 
 thereto be costs in the winding-np. Wesl of England, &r., Banlc, Malius, 
 Y.-C, 20 Dec, 1878, B. 2118. 
 
 For order directing payment to Her Majestyof County Court monies deposited 
 in same bank, see Ihid. 
 
 The Crown not being expressly mentioned in the Act of 18G2, 'is entitled to 
 be paid out of the assets in priority to all other creditors. Henley Sf Co., 9 C. 
 Div. 469 ; 26 W. E. 885 ; In re Bonham, 10 C. Div. 595. 
 
 For orders directing preferential payment to be made to holders of mortgage 
 debentures, and other seciu-ed creditors, see infra, Form 562 et seq. 
 
 As to servants and others, see supra, p. 469. 
 
 Notkc to CrodUor to attend and receive debt. 
 
 See Form 23 in Schedue to Eules. The form can readily be altered so as to 
 siiit the case of part payment. 
 
 Miscellaneous. 
 
 Staying actions by creditors, see infra. Form 585 et seq. 
 Transfer of actions, see Form 600 et seq. 
 
 Liberty to creditors to proceed against company. Form 603 et seq. 
 Liberty to attend. Form 568 et seq. 
 
 Secured Creditors. 
 
 " Upon the applicon of A. B., &c., &c., being together the holders of Form 562. 
 all the nitge debentures of and issued by the above-named co, for the Declaration 
 amounts set forth in the schedule hto opposite the respive names of the of rights of 
 sd applicants, and all hereinafter referred to as the del^enture holders, ^dlenture 
 which, upon hearing the solors for the applicants, and for the off. liq. of holders, and 
 the above-named co, and for, ifec, was adjourned to l)e heard in Ct, °^*^^'^ *° ^^^* 
 coming on the 2Gtli day of February, 1S7C, and this day to be heard 
 accordingly, and upon hearing, &c., This Ct l)eing of opinion that the 
 ppty, book-debts, credits, assets, monies, and other effects, of or to which 
 the above-named co was possessed or entled at the commencemt of the 
 winding-up of the sd co, are sul)ject to the del)enture securities and 
 charges thereby created in favour of the applicants, and ought to be 
 applied in the first instance to satisfy or provide for, pro tanto, the 
 respive amounts due to the applicants for principal and interest in 
 respect of their nitge debentures, rateably, in proportion to the sd 
 respive amounts of such mtge debentm-es, in priority to the general or 
 unsecured creditors of the co. Order the liqs of co, out of the assets of 
 the sd CO, to pay and satisfy the sd principal monies due to the sd 
 debenture holders, with interest thereon at the rate of IS p. c. p. a,, 
 down to the day of paymt ; and also to pay to the sd debenture holders 
 their costs of and occasioned by this applicon, to be tased by the taxing 
 master, as between solor and client, in case the parties differ, including
 
 480 WINDING-UP. 
 
 Form 562. tlic costs of the summons on 18 day of June, 1875, taken out by the sd 
 liqs, and all other the costs of the sd debenture holders (if any), properly 
 incuiTcd as mtgees, all such paymts to ])e made in priority to the paymfc 
 of the costs hereinafter mentd and of the costs of the liqs of this apphcon 
 and also previously to any paymt to the general and unsecured creditors 
 of the CO. And order the liqs out of the assets of the co to retain their 
 own costs, and pay the sd, &c., their costs of this applicon and of the sd 
 summons, such costs to be taxed hy the taxing masters, as between solor 
 and client, in case tlie parties differ." \_Schedide.'] In re General South 
 Amfricaii Co., Malins, V.-C, 14 March, 1876. A. 459. See 2 C. Div. 337. 
 
 As to the validity of a general charge, see supra, p. 258. 
 
 As to actions by debenture holders, see further sujira, Form 349 et seq. 
 
 In the case of a solvent company a secured creditor may prove for the full 
 amount of his debt, retaining his security till payment. And in the case of an 
 insolvent company, where the winding-up commenced before the passing of the 
 Judicature Act, viz., 1 Nov., 1875, the rule in Kellock's case, 3 Ch. 769, applies, 
 and accordingly a secured creditor may prove for the amount due when his 
 claim is sent in, without regard to securities which have been realised by him 
 between the sending in of his claim and its adjudication. 
 
 But when the winding-up commenced after 1 Nov., 1875, and the company is 
 insolvent, s. 10 of the Judicature Act, 1875, renders the bankruptcy rules 
 applicable, and accordingly a secured creditor may prove for the whole amount 
 due to him provided he gives up his security, or he may set a value on his 
 security [see Form 539], and prove for the balance : in the latter case the 
 liquidator will have the option, at any time before realisation, of taking over 
 the security at such value for the benefit of the general creditors ; and if the 
 creditor subsequently to his proof realises the security, and receives more than 
 the estimated value, he will be bound to pay the surplus to the liquidator. 
 See Bankruptcy Act, 1883, and Eules 9 et seq. Where a security is so valued, 
 the liquidator may redeem it at the assessed value, or if dissatisfied with value, 
 may insist on sale. And the creditor may require a liqviidator to elect whether 
 he will redeem ; and after six months' default the equity of redemption will 
 vest in the creditor. See further the above mentioned rules. 
 
 Instead of i)roving as above, a secured creditor, whether of a solvent or 
 insolvent company, (a) may realise his security if he has the necessary power 
 and prove for the balance (Re Kit Hill Co., IG C. D. 590), or (b) may, in some 
 cases, obtain leave in the winding-up to sue the company for the enforcement 
 of his security, e. g., by foreclosure, and proceed accordingly, or (c) may have 
 his security realised in the winding-up, and prove for the balance due. 
 
 The expression, a secured creditor, in s. 10 of the Jiidicature Act, 1875, 
 means a creditor holding any mortgage charge or lien on the company's pro- 
 perty or any part thereof as security for a debt due to him, and includes not 
 only creditors secured by contract, but also creditors who have obtained a 
 security by execution levied before the commencement of the winding-up or 
 othei-wise. See s. 168 of the Bankruptcy Act, 1883. The charge must arise 
 before the commencement of the winding up. See s. 163 of the Act of 1862. 
 Ex jiarte Williams, 7 Ch. 314 (fi. fa., seizure essential) ; Re Stanhope Silkstone Co., 
 11 C. Div. 160 (garnishee order nisi, service essential) ; Haly v. Barry, 3 Ch. 
 452 (charging order on shares, service essential). 
 
 As to the limited operation of s. 10 of the Judicature Act, 1875, see Withernsea 
 Co., IG C. Div. 337 (s. 45 of Bankruptcy Act, 1883, not ap2)licable) ; Crumlin 
 Viadi(,ct, 11 C. D. 755, order and disposition not applicable. But see Mersey 
 Steel V. Naylor, 9 Q. B. Div. 61'8 (mutual credit clause applicable), and Re 
 lIopHns, 18 C. Div. 380. See also Re Hopkins, 31 W. R. 498 ; 48 L. T. 513 ; In 
 re Maggi, 20 C. D. 545.
 
 SECURED CEEDITOES. ^^i 
 
 For affidavit of proof by secured creditor of insolvent company, see p. 472. Form 562. 
 
 In the case of a mortf^agee or mortgage debenture holder of a company, it 
 
 is very common to apply to the Court for liberty to bring or proceed with an 
 action to foreclose or realise the security, and a mortgagee has a prim'h facie 
 right to such an order. Lloyd v. Lloyd S( Co., 6 C. D. 339; Jones v. Swansea 
 Building Society, 29W. R. 382; In re Hamilton's Windsor Ironworks Co. ,27 W. E. 
 827 ; see Forms G03 et seq. 
 
 In other cases the mortgagee sells, with or without the concurrence of 
 the liquidator, in exercise of a power of sale vested in him by the mortgage. 
 
 And very commonly a secured creditor applies in the winding-up for a 
 declaration of his rights, and a direction to the liquidators to realise the security, 
 and pay him. See Forms 563 et seq. 
 
 In such cases the secured creditor is entitled to be paid out of the proceeds 
 his princiijal, interest, and costs, subject only to the costs of the realisation. 
 Ill re Marine Mansions Co., 4 Eq. 601. See also Oriental Hotels Co., 12 Eq. 126 ; 
 In re Regent's Canal Co., 3 C. Div. 411. 
 
 Not uncommonly an order for sale is made on the application of the liquidator, 
 and the mortgagee concurs and obtains payment out of the proceeds. 
 
 Where a creditor has obtained security by execution levied before the Avind- 
 ing-ui3, and a winding-up commences before sale, it is not uncommon for the 
 creditor to aj^ply for an order for sale by the liquidator as in Form COS. 
 
 Upon the applicon of B. [a/id others] : Declare that the applicants Form 563. 
 and all other holders of debentures in the same form as those held by Declaration of 
 the applicants of the eo are by ^drtue of such debentures entled pari ^s^^s in 
 passu to a charge by Avay of a floating se'curity [_supra, p. 229] on all debenture 
 the real and personal estate of the co as the same existed on 9 Oct., holders. 
 1878 (the date of the appointmt of the sd K. prov. off. liq.) subject to 
 any charges on specific pts thereof created previously to that date and 
 then subsisting : And declare that sucii real and personal estate does not 
 include then uncalled capital of the co : And let the following inquiries 
 be made : — 
 
 1. An inquiry who are the holders of the debentures of the sd co and 
 what is due to them for principal and interest. 
 
 2. An inquiry >Yhat ppty is comprised in the charge having regard to 
 the above declons : Applicants' costs of the applicon to be taxed and pd 
 out of the ppty comprised in sd charge : Liq to be at libty to retain his 
 costs of the applicon and consequent thereon out of the general estate of 
 the CO in his hands : And the order to be without prejudice to the 
 applicants' right to prove for the balance of the amount due to them by 
 virtue of the sd charge against the general estate of co. Libty for 
 applicants to attend proceedings at their own expense. Colonial Trusts 
 Corporation, M. R., 13 Dec, 1879. A. 257G. 15 C. D. 405. 
 
 See reference to the above order in Hodson v Tea Company, 14 C. D. Soft, and 
 supra, p. 218. 
 
 For order with consent of P., the mortgagee, that certain leaseholds and 
 plant be sold by auction by the official liqiiidator out of Court, proceeds to be 
 applied in payment of expenses and next in payment to P. of 5,0001. and interest 
 and costs as mortgagee, residue to be paid into Bank to account of official 
 liquidator ; if pi'oceeds insufficient to pay P. expenses first to be paid, and 
 balance to P., liberty for P. to bid at the sale, order to be without prejudice to 
 rights of P. if sale not effected, and if sale not effected, P. to pay to official 
 liquidator the costs of the attempt, and add amount to his security, costs of 
 
 I I
 
 482 
 
 WINDING-UP. 
 
 Form 563. application reserved, costs and expenses before directed to be paid to Vje 
 
 taxed in case the parties differ, see Crumlin Viaduct Co., M. E,., 1 Au^^., 1878. 
 
 A. 1601. 
 
 Form 564. Upon the applicon of AY. the liq. of co, &c., Let an inquiry be made 
 Inquiiy as to ^^ to what securities have from time to time been given by the sd co, and 
 what seciirities when and to whom and for what amounts and how much remained due 
 upon each of the sd securities for principal and interest up to 17 Sept., 
 1878, and any party is to be at libty to apply in chambers as he may be 
 advised, as soon as the chief clerk shall have made his certificate, on tlie 
 question of priorities and the respive rights of the secured creditor to 
 be found and certified as afsd. Hamiltoiis Windsor Iromrorks Co., 
 Limtd, Malins, V.-C, 21 Dec, 1878. A. 2340. See also, 27 W. 11. 827. 
 
 given. 
 
 Form 565. Upon the applicon of the liq, and upon hearing the solors for tlie 
 
 Liberty to pay applicant and for F. M. the creditors' representative appointed l)y order 
 
 off mortgage dated, &c., and for W. and S. the mtgees of the co's stock, and upon 
 
 of sale. reading, &c., Let the liq be at libty to pay to the sd S. out of the proceeds 
 
 of the ppty in mtge to him the sum of 432C/. S.s., due to him for principal, 
 
 interest, and commission, upon mtge dated, &c., given by the sd co to 
 
 the sd A., And let the liq pay to the sd S. the sum of 48/. 14.s. at 
 
 which the costs of the sd S. t'^^ve been agreed, such costs including the 
 
 costs of this applicon. JaimncM Curtains Co., Malins, V.-C, 2u ^lay, 
 
 1878. 
 
 Form 566. 
 
 ■Order for pay- 
 ment of 
 mortgagees. 
 
 Upon the applicon of D. the off. li(i., &c.. Let the sd D. out of ;>;;i.")/. 
 and other sums of money which may l)e payable to him in respect of tlie 
 
 sale of the Tavern, pay to Messrs. W. & Co. the sum of 183")/., 
 
 being the amount due to them for principal, and secured by a certain 
 indre, &c., together with 12G/. 2s. 4-d., the amount of interest thereon at 
 .J p. c. p. a. to 15 May, 1878, and also the sum of 10/. I!).*;. 3c/. for goods 
 supplied by them to the sd co and 1/. IGs. for insurance of the prenies 
 belonging to the sd co, together witli the sum of 27/. 5.s. 10^7. tlie ascer- 
 tained costs of the sd Messrs. W., making together the sum of 2( »()!/. 4s.: 
 And let \_similar order as to two suhscquont incumhrttncers.'] And let 
 the sd liq thereout also pay to Messrs. C. F. & C. the former solors of the 
 sd CO the sum of IKt/. in full satisfon of their costs, charges and exj^enses 
 against the sd co amounting to the sum of 189/. Gs. 8d., &c., And let 
 
 the sd Messrs. and forthwith cause satisfon to be 
 
 entered upon the ]Middlcsex Register of the amount of their respive 
 mtges. Hammersmith Town Hall Co., ^L \\., 7 May, 1878. A. 809. 
 
 Form 567. Upon the applicon of S., .T., and E., as trustees under an indre 
 Liberty to give dated, &c., for and on behalf of the debenture holders of the sd co, and 
 possession of upon hearing the solors for the applicants and for F.- AY., the liq of 
 trustees for ^0, &c.. Let the Said liq be at libty to give to the applicants possession 
 debenture of the leasehold lands and premes known as, &c., whereon the sd co 
 caii'ied on its business, together with all the plant, machinery, tools,
 
 LIBERTY TO ATTEND. 
 
 483 
 
 stock and eifects tlierein. ,/. and A. Bhjth, LiinfiL, Hall, V.-C. 80 Mav., Form 567. 
 1878. A. G31. " 
 
 Lihfji fo aHond. 
 
 See rules GO, 61, and 62, of the General Order of Nov., 1802. 
 
 Upon the applicon of B. & S., trading, &c., of , who have been Form 568. 
 
 admitted as creditors of the above-named co, and upon hearing the Liberty to 
 solors for the applicants and for the liq of sd co, and upon reading '^^^'^'t'^'"** to 
 an order dated 1 July, 1874, and an order dated 2 August, 1877, Let 
 the sd B. & S. be at libty at their own expense to attend the proceedings 
 before the judge under the sd order dated 1 July, 1874, and upon the 
 terms and conditions mentd in the.Gdth Rule of the Order of Com't 
 dated 11 Xov., 18(52, And order the sd B. & S. to pay to the sd A. the 
 liq one guinea for the costs of this applic(jn. Konvkli Prurident Co., 
 Bacon, V.-C, 21 May, 1878. B. 1241. 
 
 Althoiigh it is not unusual to make an order as above, it would seem that no 
 order is necessary. Rule GO gives liberty to attend, subject to the j^rovisions of 
 Eule 62, and accordingly some of the Cliief Clerks decline to make orders as 
 •above. It seems that the examination under s. 115 of the Act of 1862 is not 
 to be considered a proceeding within the meaning of the rule. Grey's Brewery 
 Co., 25 C. D. 400 ; 32 W. E. 381 ; 50 L. T. 14.. 
 
 For order in favour of a person claiming to be a creditor, see Ha nvich Harbour 
 Co., Hall, V.-C, G May, 1878. A. 867. 
 
 Upon the applicon of AV. of , a contriby, &c., Jjct the sd AV. Form 569. 
 
 be at lil)ty at his own expense to attend the proceedings before the Liberty to ' 
 judge in these matters, And Let the sd W. upon paymt of the costs contributory 
 occasioned thereby have notice of all such proceedings as he shall by 
 written request desire to ha^e notice of. '' 'aj)c Brcfon ( 'o., ]\Ialins. V.-C, 
 t) Mar., 187.S. A. 423, 
 
 As to rights of pei'sons entitled to attend, see Brampton Railway Co, 11 Eq. 
 428, in which case Bacon, V.-C, said, " Having under 'the rule the right to 
 attend the proceedings, they have, as I read it, equal rights with those which 
 a party to a suit would have, and those rights would include the right to cross- 
 examine." 
 
 LTpon the applicon of W. L. and B. L. respively, as holders of A Form 570. 
 
 ilebentures of the above-named co, &c., Let the applicants be at libty to LibertTto 
 attend all proceedings in the winding up of the sd co relating to the sale ^lebenture 
 and disposition of the assets of the sd co compn'sed in the indre of 
 14 Dec, 1875, and all proceedings relating to the paymt or other 
 dealing with the proceeds thereof. And Let the costs of such attendances, 
 including the costs of both the sd a])plic<)ns, be added to the applicants' 
 securities, and the principal and interest due on their debentures, And 
 Let, notwithstanding the sd order of 17 Ap., 1877, the pchase-nioney be 
 pd into the Bank of England to the credit of the off. liqs. of sd co to an 
 account to be intituled " The Mtge Trust Account," And let no pt of such 
 
 I I 2
 
 484 
 
 WINDING-UP. 
 
 Porm 570. inouey be pd out witliont notice to the sd ^X. H. & B. L. Hooper s 
 ' Telegraph WorJcs, M. R., 14 June, 1877. A. 1171. 
 
 For order giving executors of will of creditor liberty to attend proceedings 
 relating to sale of assets, see Central American File Co., Hall, V.-C, 21 May, 
 1878. A. 1854. As to impropriety of giving debenture holders liberty to attend 
 at company's expense, see Hamilton's Windsor Ironworks, 27 W. E. 827. 
 
 Form 571. 
 
 Appointment 
 of committee 
 to attend. 
 
 Upon the applicon of i\I. & H., contribs of the above society whose 
 names are comprised in schedule A. in the printed statemt of the oflF. hq., 
 being the exhibit A to the afFt of snch oflF. hq. filed 22 April, 1 873, in 
 support of his proposal for a call of 25/. per share, that the sd J\I. or some 
 other contriby named in the sd schedule might be aj)pointed to represent 
 the class of contribs contained in the sd schedule in all further proceed- 
 ings relating to the winding up o£ the co at the expense of the estate, 
 and upon hearing the solors for tlic api)licants and for the sd off. li(|. 
 
 and for the Co having libty to attend proceedings, and upon 
 
 reading the order, &c.. Let (1. and the applicant M. l)e a])pointed to 
 represent before the judge at the expense of the sd society the contribs 
 of the sd society upon any question as to a compromise witli any of the 
 contribs or creditors of the sd society or in or about any other proceed- 
 ings relating to the winding up of the sd society. And Let the sd (J. and 
 M. unite in employing the same solor to represent them as afsd. I/ifer- 
 md'ional Life Assimmce Society, Malins, V.-C, 29 Xov., 187o. A. 2!)83. 
 See Rule 01. 
 
 Form 572. Upon the ap})licon of T. and H., the liqs of co, and upon hearing the- 
 solors for the applicants and for (1. and K. the members of the com- 
 mittee of supervision in the winding-up of co, Let liqs out of the monies 
 in their hands belonging to co pay 100/. to sd Gr. and K. respively as a 
 remuneration for their services as members of such committee of super- 
 vision from 31 Dec, 1875, to 31 Dec. 1870. Overend ch Gurney Co.y 
 18 Ap., 1877. 705 B. 
 
 Remuneration 
 of committee. 
 
 Committee of 
 contributories. 
 
 Form 573. Upon the applicon of C. and 0., &c., Let the sd C, G., and I), be 
 appointed at the expense of the co to represent the holders of fully pd- 
 up shares in the sd co in and about the applicon in the al)ove matters, 
 that the off. liq. might be directed to l)ring in a supplemental list of 
 contribs comprising the holders of fully pd-up shares in the sd co, in 
 order that a call might be made to adjust the rights of contribs among 
 themselves and in, about, or concerning all iiroceedings and matters, 
 incident to the sd applicon and consequent thereon, And costs of appli- 
 cants of and incident to the applicon to be pd by off. hq. out of assets 
 of CO. Copper 2iiners Co., Malins, Y.-C, 15 Mar., 1875. A. 2078. 
 
 Form 574. Upon the applicon of the exs of L., deceased, &c., Let Mr. H. V. of, 
 
 A intm ut *-^°-' ^olor, be appointed creditors' representative in the above matters 
 
 of creaitor.s' ft)r thc pposc of attending the taxation of the costs both of the prov. 
 
 representative ^^^^ ij- n -^^ ^j^g above matters other than the costs of such off. hq. 
 
 lor limited -i . . '■ 
 
 purpose. relating to the conservation and realisation of the jipty of the said ca
 
 SERVICE OF SUMMONSES, &c. 485 
 
 situate iu the county of C, And l^et the costs, charges, and expenses of Form 574. 
 the sd H. V. of and incident to such taxation and of this apphcon be 
 taxed, and when so taxed be pd by the sd off. hq. out of such assets of the 
 sd CO (if any) as may be available for that ppose, And Let the costs of the 
 applicants of this applicon be pd by the off. liq. and be included and 
 allowed in his owu costs, And let the costs of the off, liq. of this applicon 
 be costs in the winding-up. Cornish Consolidated, ^-c., Corporation, 
 Malins, Y.-C, 11 April, 1878. A. 724. 
 
 Formerly a creditors' representative was very commonly appointed, but now 
 such an appointment is rarely made except for some limited purpose. See 
 Maclver's claim, 5 Ch. 424. 
 
 Sen' ice of Summonses, tCr. 
 
 Service within the Jurisdiction. 
 
 Rules 63 and G4 provide for the service upon creditors and contributories of 
 any notice summons or order by post. See further, Buckley, 5SG. 
 As to service of winding-up petition, see supra, Form 38S et seq. 
 
 Service out of Jurisdiction. 
 
 Upon the applicon of . the liq of co, &c., Order that service of Form 575. 
 
 any summons, order, notice or other proceeding in these matters, not (-gneral^rder^ 
 requiring personal service, upon such of the contribs or creditors of the for service out 
 sd CO wliose usual or last-known place of abode is situate in Ireland, °^ J""sdiction. 
 tScotland, the Isle of Man. or elsewhere out of the jmisdiction of tliis 
 Honom-able Ct, and on whose behalf no appearance has been entered in 
 psuauce of the General Eules and Orders of 11 Xov., 18G2, be effected 
 by enclosing a true copy of the smnmons, order, notice or other pro- 
 ceeding together with a copy of this order in an envelope duly addi-essed 
 to such persons respively to their several last-known address or place of 
 abode and putting the same with the proper stamps affixed thereto as 
 prepaid letters into a post-office receiving-house in the city of London. 
 Government Security Fire Insurance Co., Limtd., Hall, V.-C, 5 June, 
 1878. A. ll;JO. 
 
 For similar orders, see Milan Tramways Co., 17 Ap. 1877, B. 831, and iTcu/ioo r 
 Fisheries Co., 9 July, 1877. A. 1G23. 
 
 Eule 63 above mentioned does not make any provision as to service out of 
 the jurisdiction ; and Order XI. of the Eules of the Supreme Court, 1883, does 
 not appear to apply. But the Court has inherent jurisdiction to permit service 
 out of the jurisdiction. British Imperial Corporation, 5 C. D. 749; Household 
 Insurance Co., W. N., 1878, 26 ; In re Morant's Trusts, W. N., 1879, 144. See also 
 Buckley, 493 ; Seton, 1625. Order XI. 
 
 Where there are many creditors and contributories out of the jurisdiction, a 
 general order as above is iisually obtained ; in other cases orders as below are 
 obtained. 
 
 Upon the applicon of and , the liqs of co under the super- Form 576. 
 
 vision of this Ct, and upon reading, &c., Let the sd liqs be at libty to Libert^to ^ 
 serve a copy of the summons dated, &c., issued in these matters from serve summons
 
 WINDING-UP. 
 
 Porm 576. find under the seal of the chainl)ers of the judge at the instance of the 
 
 out of iurisdic- ^^^ applicants, together with a copy of this order upon ^X. of Bomhay, in 
 
 tion. the Empire of India, at Bombay or elsewhere in the Empire of India. 
 
 Ovomid, Gurm'i/, A- Co., Limtcl, Malins, V.-C, 22 August, 1878. 1502 B. 
 
 Liberty to 
 serve out of 
 jurisdiction. 
 
 Form 577. Upon the applicon of the oflP. liqs., tfec, Let the applicants be at libty 
 to serve all summonses, orders, notices, and jiroceedings in these matters, 
 not requiring personal service, upon the several persons named in the 
 2nd colimm of the schedule hto, being respively contribs of the sd co, by 
 sending copies of this order and of such summonses, orders, notices, and 
 proceedings in this matter through the general post-office, addressed to 
 such persons respively at the places set opposite to their resjjive names 
 in the 3rd column of the sd schedule, and l^eing respively places in the 
 kingdom of Holland, out of the jurisdiction of this Ct, until the appli- 
 cants receive proper notice of any change of residence of such contribs, 
 And Let 14 days from the date of such service be the time for the sd 
 persons to appear or do any act referred to in such summonses, &C.,. 
 respively. 
 
 The Schedule above eefeeeed to. 
 
 Serial Xo. 
 
 Niiiue. 
 
 Address. 
 
 
 
 
 Thomas W. Boolccr cj- Co., Fry. J.. 20 Ma,r., 1H79. B. 5(i2. 
 
 Form 578. 
 
 Liberty to 
 serve out of 
 jurisdiction. 
 
 Upon the applicon, &c.. Order that the sd off. liq. be at libty to serve- 
 the notice to settle the list of contribs of the sd co made out and left by 
 him at the chambers of the sd judge through the post in prepaid letters 
 
 addressed to A. of , B. of , C. of , I), of , and that such 
 
 service be deemed good service upon the sd A., B., C, and D., And let the 
 sd ofl". liq. be at libty to serve all other notices and copies of summonses, 
 orders, and other proceedings in this matter not requiring personal 
 service, in manner prescribed by the 63rd rule of the general order of 
 this Ct made the 11th November, 18G2, And let such notice or notices, 
 copy smnmonses, or orders, or other proceeding be considered as duly 
 served at the time at which the same would in due course be delivered 
 through the general post-office, and notwithstanding that the same may 
 be returned. And order that a copy of this order be served on the sd 
 A., B., C, and D., in like manner, and that the costs of this applicon 
 be costs in the winding-up. OnUinjn tj- DuJais Co., Hall, Y.-C, 7 Jan,. 
 1882. 
 
 Tliis form has been used in many cases, but it is not well framed. 
 
 Form 579. 
 
 — Upon the applicon of the liqs of co, Let the sd liqs be at libty to serve 
 
 serve creditors ^^^ several persons wliose names arc set forth in the 2nd column of the
 
 SEEVICE OF SUMMONSES, &c. 
 
 487 
 
 schedule hto who respivelj claim to be creditors of the sd co, and who Form 579. 
 reside out of the jurisdiction of this Ct, with notices to prove their out of jurisdio- 
 respive claims or the unadmitted pts thereof respively against the sd co, tio° ^"th 
 and to file their afiFts in support thereof, and to give notice thereof to notke^o"'^^ 
 
 Messrs. , the solors for the liqs of the sd co, on or before 2 May, prove. 
 
 1877, and to attend at the chambers of the M, R. in the Rolls Yard, 
 Chancery Lane, in the County of Middlesex, England, on Saturday, 
 T) May, 1877, at ll.oO of the clock in the forenoon, being the time ap- 
 pointed for hearing and adjudicating on the sd claims respively, by 
 sending such notices together \^'ith a copy of this order by post in a pre- 
 paid letter addressed to the sd several persons respively, according to 
 their respive addresses as appearing opposite their names respively in 
 the ;^rd column of the sd schedule, such notice to be posted on or before 
 the 20 April, 1877 : And order that such service be deemed good service 
 upon such i^ersons respively. 
 
 Xo. OH list of claims. 
 
 Name of creditor. 
 
 Address aud description. 
 
 2 
 5 
 
 &c. 
 
 1 
 A. B. Augsburg, Germany. 
 
 C. D. No. — , Eue &c., Paris. 
 
 &c. &c. 
 
 Swiss Times Co., IG Ap., 1877. B. G49. And see similar order, 
 Oriental Telegram Agency, M. E., 22 June, 1877, 1118 B. 
 
 Upon the applicon of the off. liq., &c., Let the applicant be at libty to Form 580, 
 serve by post out of the jurisdiction of this Honourable Ct the several " 7^ 
 persons mentd in the schedule hto Avith notice that unless they do 
 respively produce to the applicant or to this Ct the securities on which 
 they claim to be creditors of the sd co, their claims respively will be dis- 
 allowed, and they will be excluded from all dividends declared or to be 
 declared, and the assets of the co will be forthwith distributed without 
 further notice, And order that a copy of this order be also served in like 
 manner upon the sd claimants named in the schedule with the sd notice. 
 
 Schedule. 
 
 Name. \ Addre-!S. 
 
 Amount claimed. 
 
 
 
 
 Berlin Great Market, &c., Co., M. R., 2 June, 1877. A. 1063. 
 
 For order giving liberty to serve, out of the jurisdiction, summons for deliver- 
 ing up to liquidator of messuage situate in Dublin, see International Patent Pulp 
 Co., 18 June, 1877, 1142.
 
 488 WINDING-UP. 
 
 Form 580- ^o^' order giving liberty to serve summons for call in Guernsey and Ireland, 
 
 ■ see Teignmouth, Sfc, Co., M. E. 21 June, 1878. B. 1207. 
 
 For order giving liberty to serve all summonses, orders, &;c., on two con- 
 tributories resident in Belgium and Scotland, see Tinfoil Decorative Co., 
 Bacon, V.-C, 12 June, 1877. B. 1122. 
 
 Order for 
 substituted 
 service of 
 summons. 
 
 tSiibstituted Service. 
 Form 581. As to substituted service, see Order G7, r. G ; Seton, loGO. 
 
 Upon the applicon of the liqs, &c., Let service of this order and of a 
 copy of the summons issued in these matters dated the 17th April, 1878, 
 
 by leaving a coj^y of such summons and of this order at the hotel, 
 
 situate, , and at the hotel, situate , addressed to J. in the 
 
 sd summons named, be good and sufficient service of the sd summons 
 upon the sd J. Forest of Dean, ^-c, Co., M. IL, 30 Ap., 1878. A. 7G3. 
 
 Form 582. Upon motion this day made unto this Ct by counsel for K. who alleged 
 that on the 4 Dec, 1878, the sd K. presented a peton unto this Ct pray- 
 ing that J. might be removed from his office of oft", liq. of co, and might 
 be ordered to deliver up all the ppty, cash, books of accounts, and papers 
 in his possession or control belonging to the sd co, and file proper 
 accounts forthwith, and that a liq might be a-iipointed in the place of 
 the sd J., and that all necessary and proper directions might be given 
 for that purpose, or that such further or other order might be made as 
 the nature of tlie case might require, And that the sd petrs ha^'e been 
 unable to serve the sd peton on the sd J. as by an aft't of the sd petrs 
 tiled C Dec, 1878, appears, and upon reading the sd peton and afft, Let 
 service of a copy of the sd peton, (having this Ct's indorsemt that all 
 parties do attend hereon on 13 Dec, 1878) together with a copy of this 
 order upon F. of Manchester, be deemed good service of the sd peton 
 upon the sd J. Main Printing, S,-c., ('o.. Hall, Y.-C, C Dec, 1878. 
 B. 2011. 
 
 Order for 
 
 substituted 
 service of 
 petition. 
 
 as to bill of 
 exchaufre. 
 
 Bills and Notes. 
 Form 583. In the matter, kc. 
 
 Memorandum" ^MEMORANDUM. 
 
 The off. liq. attended this day and applied that lie might be at libty 
 to accept the following bills of exchange, namely, 
 
 R. and H 178/. 3.9. 2d. 
 
 T. R 81/. 18.S'. Id. 
 
 the same being drawn in discharge of the monthly accounts for carrying 
 on the works of the co. After hearing the sd off. liq., and reading the 
 respive orders of this Ct dated, &c., leave was given to the sd off. liq. to 
 accept on behalf of the co the above-mentd bills of exchange. 
 
 , ('itiof CJerl: 
 
 When the sanction of the judge to the drawing, accepting, making, and 
 indorsing bills of exchange and promissory notes is given, a memorandum as 
 above is generally made. 
 
 See Rule 48 as to memorandum to be indorsed on bills, &c. Where power is 
 given to carry on the company's business, &c., he is sometimes given an express
 
 EESTRAINIXG PEOCEEDINGS. 489 
 
 or implied powei* to accept and indorse bills -vvitliout a memoraudnm, signed by Form 583. 
 the chief clerk, being indorsed pursuant to Rule 18. 
 
 The lueuioraudum where requisite runs thus : — 
 
 In the matter, &c. Form 584. 
 
 The Master of the Eolls [or Y.-C. 1 has sanctioned the [acceptance] of ,. , " " 
 
 ,.,.,,„ , , 1 . T ,.11 T -Memorandum 
 
 this bill of exchange by the on. liq. ot the above-named co. ^£ sanction to 
 
 , Chief Clc rh. ,,g ■ J^^iorsed on 
 
 bUl. 
 
 Restrain iny Procrcdinfjs. 
 
 S. 85 of the Act of 1862 provides that, "The Court may at anytime after 
 the presentation of a petition for winding up a comj^any under this Act, and 
 before making an order for winding up the comi^any upon the apjilication of 
 the company, or of any creditor or contributory of the company, restrain 
 fiu'ther proceedings in any action, suit, or proceeding against the company 
 upon such terms as the Court thinks fit." 
 
 S. 87 of the Act of 18G2 i^rovides that, " When an order has been made for 
 winding up a company under this Act, no suit, action, or other jiroceeding 
 shall be proceeded with or commenced against the comj^any, except with the 
 leave of the Court, and subject to such terms as the Court may imjiose." 
 
 S. 163 of the Act of 1862 provides that, " When any company is being wound 
 up by the Court, or subject to the supervision of the Court, any attachment, 
 sequestration, distress or execution put in force against the estate or effects of 
 the company after the commencement of the winding up, shall be void to all 
 intents." See also Jud. Act, 1873, s. 25 (8), empowering the Court to grant an 
 injunction where just or convenient. 
 
 But s. 21, sub-s. (5) of the Judicature Act, 1875, provides as follows : 
 
 (5.) No cause or proceeding at any time pending in the High Court of Jus- 
 tice, or before the Court of Appeal, shall be restrained by prohibition or injunc- 
 tion, but every matter of equity on which an injunction against the j)rosecution 
 of any such cause or proceeding might have been obtained, if this Act had not 
 passed, either unconditionally or on any terms or conditions, may be relied on 
 by way of defence thereto : Provided always, that nothing in this Act contained 
 shall disable either of the said Coui-ts from directing a stay of proceedings in 
 .any cause or matter pending before it if it shall think fit ; and any person, 
 whether a party or not to any such cause or matter, who would have been 
 •entitled, if this Act had not passed, to apply to any Court to restrain the prose- 
 cution thereof, or who may be entitled to enforce, by attachment, or otherwise, 
 any judgment, decree, rule, or order, contrary to which all or any part of the 
 proceedings in such cause or matter may have been taken, shall be at liberty to 
 apply to the said Coiirts respectively by motion in a summary way for a stay of 
 proceedings in such cause or matter, either generally or so far as may be neces- 
 sary for the purpose of justice ; and the Court shall thereupon make such order 
 as shall be just. 
 
 Before the Judicature Act it was the practice where a winding-up petition 
 had been j^resented to apply to the judge to whom it was assigned to restrain 
 [under s. 85 above] any actions or proceedings against the comijany whereso- 
 ever pending. 
 
 The application was made by motion ex parte on behalf of the company, or of 
 a creditor or contributory, and it was well settled that upon such an applica- 
 tion an injunction would be granted until the hearing of the petition. Re Lon- 
 don and Suburban Banl', 19 W. R. 950. 
 
 But since the Jud. Act this practice has been modified in accordance with 
 s. 24. above. Re Artistic Colour Co., 1-1 C. D. 502. Where, therefore, it is 
 desired to stop any action, execution, sale under an execution, or other pro- 
 ceeding pending in the High Coiu-t, the proper course is to apply by motion ex 
 parte to the Division in which the action or proceeding is pending, and the 
 Court, following the practice settled in Re The London and Suburban Bank, ubi
 
 4dO 
 
 WINDING-UP. 
 
 Form 584. supra, will, upon the usual undertaking as to damages being given, stay further 
 proceedings until the hearing of the petition or further order. Masbach v. 
 Anderson, 20 W. E. 100, W. N. 1877, 252 ; Rose cf Co. v. Gardden Lodge Coal Co., 
 3 Q. B. D. 235 ; Lindley, Add. 1275. The application in the Q. B. D. is usually 
 made to the judge at chambers. Where there are several actions pending in 
 the Q. B. D. a single order to stay all can be obtained. Where execution has 
 been issued on a judgment signed in a district the application to stay must be 
 made to a judge at Chambers. 
 
 In all other cases, e.g., in cases of actions in foreign courts, or in the inferior 
 courts, or of distress or sales, application should (under s. 85 above) be made 
 by motion ex parte to the judge to whom the petition is assigned, for an injunc- 
 tion to restrain the proceeding until the hearing of the petition. See Forms 
 585, et seq., infra. 
 
 The application to stay or restrain (as the case may be) should be supported 
 by an affidavit as to the facts, and if the application is made in the name of 
 the company some responsible person must give the usual undertaking as to 
 damages. Westminster Assoc, v. TJpivard, 2i Sol. J. G90. 
 
 S. 85 only applies prior to the winding-up order, but after the order has been 
 made actions and jwoceedings (other than actions and proceedings in the High 
 Court) commenced or taken in violation of s. 87 of the Act of 18G2 [see above], 
 will be restrained upon the application of the official liquidator or some other 
 person interested. And as to actions and ju-oceedings in the High Court, appli- 
 cation can be made therein to stay pi'oceedings, or an order for transfer can be 
 obtained under Order XLIX., rule 5 \jinfra. Form 600, et seq.'], and application 
 may then be made to stay j^roceedings or otherwise as may be thought fit. As 
 to when leave to proceed will be given under s. 87, see infra, Form G02, et seq. 
 
 So also, under s. 25 of the Jud. Act above referred to, the Court will inter- 
 fere by injunction to protect the assets of the company, regard being had to 
 s. 163. See Forms 585, infra ; Ex parte Fell, 29 W. E. 885 ; W. N. 1881, 125. 
 
 A person who is improperly restrained should apply to discharge the injunc- 
 tion, or he may lose his security. Thome v. Patent Lionite, 17 C. Div. 257, Mi/ra^, 
 Form 599, but consider Ex parte Rocke, 6 Ch. 795. 
 
 Form 585. Upon motion, Szc, by couusel, for above-named co, the petrs, &c., and 
 Order restrain- foi" H., pi'ov. off", liq., &c., and the sd S. by his counsel midertakin<>- to 
 abide l)y any order this Ct may make as to damages in case the Ct 
 shall hereafter be of opinion that the N. Co has sustained any by reason 
 of this order which the sd petrs ought to pay: Let the N. Co be 
 restrained until the hearing of the sd peton or the further order of 
 this Ct from taking any further proceedings in the action by them 
 against the sd petrs in the County Ct of Lancashire, holden at Oldham, 
 in the county of L. Derby sliire Wagon Co., M. R., 12 July, 1870. 
 
 inji County 
 Court action. 
 
 (Jounty Court 
 
 execution 
 
 restrained. 
 
 Form 586. Upon motion, &c., for the liq. of co, &c., Order that the high bailiff" of 
 the County Ct of Yorkshire, holden at K., do forthwith withdraw from 
 the premes of the co entered upon by him pursuant to a warrant of 
 execution directed to him and issuing out of the Shoreditch County Ct, 
 
 of IMiddlescx, holden at, i*cc., under a judgment obtained by B. of > 
 
 in an action commenced by him against the sd co as in the sd afft of C. 
 mentd : And order that the sd high bailiff" do deliver uj) the possession 
 of the sd premes to the sd liq. : And order that the sd action be trans- 
 ferred fi'om the sd Shoreditch County Ct, &c., to the sd V.-C. Hull 
 Cr/ifn/l bmprry Co., Hall, A'.-C, 5 Ap. 187i). A. 8GG. 
 
 Form 587. 
 
 Order restrain- 
 
 Upon motion this day made unto this Ct by R., claiming to be a
 
 EESTEAINlNa PROCEEDINGS. 
 
 491 
 
 creditor of the above-uamed co, the jietr named in a certain peton on the Form 587. 
 16th May, 1870, preferred unto this Ct to wind up the sd co, and upon ing actions by 
 readino- &c., and the sd R. by his counsel undertaking, &c., should reference to 
 
 • sc1i6(.Iii1g. 
 
 this Ct hereafter be of opinion that the persons named in the schedule to 
 this order shall have sustained any dama<>-e by reason of this order, which 
 the sd R. ought to pay. This Ct doth order that the persons named in the 
 schedule to this ord.er be restrained from further prosecuting the several 
 actions in the same schedule nientd commenced by them against the sd 
 CO, until, &c. 
 
 The Schedule above referred to. 
 
 1 
 
 N. V. The Yorkshire &c. Company, Limited. Common 
 Pleas Division. 
 
 For goods ....... 
 
 £ 
 
 s. 
 
 d. 
 
 Go 
 
 
 
 
 
 
 [Here follow the particulars of seven other actions.^ 
 
 
 
 1 
 
 9 
 
 — V. The &c. Company, Limited, Leeds County Court. 
 For goods 
 
 18 
 
 
 
 »i 
 
 The YorJcsMre Civil Service Stqijjli/ Associafiun, Limtd, Malins, V.-C, 
 17 May, 1876. B. 800. 
 
 So far as the above order purported to restrain actions in the High Court it 
 was ultra vires. For ex j)arte order restraining actions in Mayor's Court, see Re 
 Knights 4' Co., Bacon, V.-C, 16 Jan., 1881. 
 
 Upon hearing counsel for the D., &c., Co., ijimtd, and for S,, the Form 588. 
 l^rov. liq., and upon reading the affts of G., and the sd liq. by his conn- Q^igTof 
 sel undertaking to abide by any order this Ct may make as to damages judge of Q. B. 
 in case the Ct or a judge should hereafter be of opinion that the pit in proceLmj^^s^ 
 this action shall have sustained any by reason of this order which the sd 
 S. ought to pay, Let all further proceedings in this action be stayed 
 until tlie hearing of the sd peton. Oshorn v. Derhysliire, (|f., Co., Q. B. 
 I)iv. Order at Chambers, by Field, J., 4: July, 187!). 
 
 Upon the applicon of off. liq., &g., Let C. be restrained from further Form 589. 
 proceeding against the off. liq. in the commercial Ct of the island of Qj^jgj.pggtj.j^j„. 
 Malta with reference to a sum of lOOO/'. deposited, &c.. Costs of sd pro- ing proceeding 
 ceeding in Malta and of applicon to be reserved. General ]Vor]cs Co., gQ^^.^ ° 
 Bacon, V.-C, 2o Nov. 1871). A. 2177. 
 
 Upon motion this day made unto this Ct by counsel for ^\ . who Form 590. 
 claims to be a creditor of the above-named co, and upon reading the onkTi-estraiu^- 
 peton of the sd W. on the 29th June, 1877, preferred unco this Ct, ing issue of 
 praying that the sd co may be wound up, &c., and an afft of L. filed, &c. execution. 
 whereby it appears that an action has been commenced by N., the
 
 492 
 
 WINDING-UP. 
 
 Form 590. registered officer of the Bank, to recover the sum of llfiL l'.)s. Sd. 
 
 ~~~ ~ upon a bill of exchange drawn by the sd bank and accepted by the 
 
 CO, and by the sd P. M. Co indorsed to the sd bank, And the sd W. 
 [iisual muUrtahmj as to damages'] : Order that the sd bank be restrained 
 from issuing execution on any judgmt to be obtained by them in the sd 
 action commenced l)y the sd N. as in the sd afft of the sd L. mentd, 
 until the hearing of the sd peton, or until further order. Fcncrley 
 Mining Co., M. R., 2 .July, 1877. B. 11G2. 
 
 According to the present practice, an order to stay proceedings is the proper 
 order to take when it is desired to stop the issue of execution. 
 
 Form 591. Upon motion, Arc, for W., a contrib of the above-named co, who 
 
 alleged tliat a judgmt had been obtained against the sd co by the 
 
 Bank, and that an action is now pending against the sd co at the suit of 
 
 llestraiuing 
 sheriff from 
 selhiig. 
 
 Form 592. 
 
 Restraining 
 removal of 
 
 goods. 
 
 It., that a peton for the v/in ding-up of the sd co was, on the 1 Gth April, 
 1878, preferred unto this Ct by the sd W., and upon reading the sd 
 peton, &c., and the petr \imdpr talcing as io damages'], This Ct doth 
 order that tlic Sheriff of Middlesex be restrained until the hearing of the 
 sd peton, or until further order, from selling any goods of the sd co 
 seized or to be seized ))y him undei' the execution issued on the sd judgmt 
 or under any other execution to be issued under any judgmt to be ob- 
 tained in the sd action by R. Croirn Match Co., M. R., 17 April, 1878. 
 A. G8(». 
 
 Upon motion, &c., by counsel for the G. C, Limtd, the petrs 
 named in the peton preferred unto this Ct the 1st of Nov. 1878, &c. 
 {imdertaking as to damages]. Let the Sheriff of the Co. of Derby and 
 the pchaser of the plant, engines, and other ppty of the sd co and their 
 respive agents be respively restrained until after the hearing of the sd 
 peton or until further order of this Ct from removing the plant, engines, 
 and other ppty of the sd co sold on the 2nd of Nov. 1878, by the sd 
 Sheriff under an execution in an action instituted by R. against the sd 
 CO in the Exch. Div. of the High Ct of .Justice. UeJjfer Laiuid CoUiery 
 Co., Malins, V.-C, G Nov. 1878. A. 1885. 
 
 Form 593. Upon motion, &c. for . of — — , the prov. off. liq. of co, and upon 
 
 reading, &c., and \_undertalbig as to damages]. Let R., of , his ser- 
 vants and agents, be restrained until over the 18th day of May, 187G, or 
 initil further order of this Ct, from removing or selling the goods now 
 on the premes situate at No. 17, Garrick Street, &c., in the afft mentd ; 
 
 And let the sd pro^'. off. liq. be at libty to give the sd notice of 
 
 motion for an injunction for the 18th day of May, 187G. British 
 Guardian Life Assurance Co., Limtd, Hall, V.-C, 15 ^May, 1S7G. A. 
 878. 
 
 llestraiuing 
 i-emoval or 
 sale of goods. 
 
 Form 594. Uj)on inotion \_cx parte on liehatf of pctr — usual uiidertalnng]. Let B. 
 & P. Idc restrained until after the hearing of the sd peton or further 
 order from selling or removing any of the plant, machinery, or other 
 
 Restraining 
 sale.
 
 TRANSFER OF ACTIONS. 
 
 49.' 
 
 chattels of the Co in or al)ont the sd co's works. Paragon Co., Form 594. 
 
 Chitty, J., 2.") May, 188:3. ~~~' ' 
 
 In the above case B. and P. had issued an elegit after the presentation of the 
 petition, and obtained delivery, and threatened to sell. 
 
 Upon motion, &c., for H., the petr, vtc. Let Messrs. F., P., and F. Form 595. 
 be restrained until the hearing of the sd peton from parting with the Restraining 
 proceeds of the sale of the fiirnitnre and effects in the order dated the i'^'"^?"^ f™™ 
 
 1 -v-r , T partmg witli 
 
 15th JSovcnil)er, 1870, nientd, except by paying the same into Ct. monies. 
 Baysiratcr Ch/h, dr., Co., Limtd, Hall, T.-C, at chambers, 24 Nov., 
 187(1. A. I.sl'.t. 
 
 Upon motion, &c. \_iisiial inuJrrfak/))//^, Let the sd c^- be Form 596. 
 
 restrained until the hearing of the sd peton or until further order from Restraining" 
 selling the articles, machinery and things in the sd afft referred to, ^^'^*^"^**'* ^^'^^ 
 which have been seized under the sd distress. JlrijnJcinalt Collieries, 
 M. R.. 4 Ap. 187S. A. r,G7. 
 
 Upon motion, &c., for and , the li(is of the above-named Form 597. 
 
 CO. and ttpon reading the peton of T. B., on, <kc, prcfeiTcd unto this Ct, Order restraiu- 
 and two affts, &c., and [iisiud unilertalcinfj'], T^et the corporation of the ^"° 'hstress for 
 Borough of Hanley, their solors and agents, be restrained until after the 
 hearing of the sd peton from proceeding to laxy a distress oit the goods 
 
 of the sd CO in respect of the rate or sum of /. in the sd afft of the 
 
 sd — • — mcntd. Hanlpij Hotel Co., LimUl, M. li., 2;; ]\[ay. 187i;. A. 
 881. 
 
 Upon motion by prov. off. liq. &c., Eestrain the South Staffordshire Form 598. 
 Mines Commissioners from selling any goods of the co distrained by Another, 
 them or otherwise proceeding with the distress levied ])y them on the 
 goods of the co until, &c. Oaldiam Collieries Co., [M. R.. lit July, 1880. 
 
 On the pt of of , that the order dated, &c., made in these Form 599. 
 
 matters on the applicon of , whereby it was ordered that the Notice of 
 
 applicant should be restrained, &c., may l)e discharged, and that an in- motion to 
 quiry may l)c made whether the applicant has sustained any, and if any restrainln'^ 
 
 what damages Iw reason of the sd order, and which the sd ought to order. 
 
 pay according to his undertaking in the same order, and that the sd 
 
 may be ordered to pay to the applicant the amount of such 
 
 damages and the costs of the sd inquiry and of this applicon and con- 
 sequent thereon. 
 
 Application fur inquiry as to damages must l)e made -n-ithin a reasonable 
 time. Ex 2>arte Hall, 23 C. D. Gil. 
 
 Transfer of Actions. 
 
 Upon motion, &c., by counsel for the above-named co and ftr the jirov. Form 600. 
 liqs. thereof, and upon reading an order dated 1 Feb., 1878, whereby it Order trans- 
 Avas ordered that the sd co should be wound np, and upon reading an herring actions.
 
 4.9'1 
 
 WINDING-UP. 
 
 Form 600. aift of T. B. filed 2 Feb., 1S7S : Let iu psuance of Order [tioivlO, Rule 5], 
 " ~ of the Rules of the Supreme Ct, that the following actions, that is to say, 
 
 (l)Tai/JorY. The Railwaij Stci'l, &c., Co., Limtil, 1877, T. ]Sro.45, commenced 
 in the Q. R. Div. of this Ct : (2) Williams v. d.V,, commenced in the 
 Exch. Div. of this Ct : (:>) Bishop v. &(\ : (4) ffillier v. tJic, l)c 
 respively transferred to this Division of this Ct and assigned to the 
 V.-C, 8ir Charles Hall. Raihcay Sleel, i£r., Co., Hall, V.-C, 2 Feb., 
 1878, IG.j B. See 8 C. D. ]83. 
 
 Eule 5 of Order XLIX. of the Rules of the Supreme Court, 188.3, provides that 
 when an order has been made for the winding up of any company, the jvidge 
 in whose Court siich winding-u}) is pending, shall have jjower without further 
 consent, to order the transfer to him of any action i^ending in any other Court 
 or Division, brought or continued by or against the company. 
 
 The application may be made ex parte as in the above order or on summons. 
 See also Field v. Field, W. N. 1877, 98; Whitaker v. Robinson, W. K. 1877, 201 ; 
 United Kingdom Electric, 29 W. E. 332. In Re Sharpe, W. N. 188i, 28. See Re 
 Thames 'Steam Ferry, 27 W. E. 503, where transfer was refused. As to transfer 
 of petitions, see supra, Form 107. 
 
 The words " Court or" are new, and enable a transfer order in regard to an 
 action pending in the same division. Re Sharpe, ubi supra, and see Re Madras 
 Co., Id C. D. 702, as to the old rule. 
 
 "Form 601. Upon the api)licon of the off', liq., and upon hearing the solors for the 
 
 ■Order for applicant aud for the pits in the action hereinafter mentd, and upon 
 
 transfer. reading \^iviiidinrj-iq) ovder^ : Let pursuant to Order [51, Rule 2«] of the 
 
 Rules of the Sup. Ct. this action now pending in the E.\. Div. of this 
 
 Ct, 1879, P. 7i)2, in which action are pits and the B. Co defts, be 
 
 transferred to the Chan. Div. of the High Ct of Justice, and attached to 
 the V.-C, Sir C. Hall. Costs of applicon to be costs in the 11(]. Beverley 
 Iron Co., Hall, Y.-C, 1.') Xov., 187'.). A. 2212. 
 
 Form 602. 
 
 Order setting 
 aside judgment 
 obtained in 
 Common 
 Pleas Division 
 in action 
 subsequently 
 transferred to 
 Chanceiy 
 ^Division. 
 
 Upon motion, &c., by counsel for the off. liq. of co, and upon hearing 
 &c. : Let the judgmt signed by the sd W., the pit in the sd action in 
 the Exch. Div. of this Ct for L")2(;/. l.js. 4^7. on the 23rd July, 1878, be 
 set aside : l)ut this order is to be without prejudice to the right of the 
 sd AV. to C(;me in as a creditor in the winding up of the sd co. : And Let 
 the off. liq's. costs of this applicon be taxed by the taxing master and 
 allowed out of the assets of co. Eailicay Sleel, <i;c., Co., Williams v. same 
 Co., Hall, Y.-C, 18 Feb., 1878. B. 430. And sec 8 C D. 183. 
 
 After transfer, the Court obtains control over the action, and can stop 
 execution, or set aside judgment wlien proper. 
 
 Liberty to briny a/id jirorecd with actions, dr. Sec. 87. 
 
 Section 87 of the Act of 18G2 provides that " when an order has been made 
 for winding up a company under this Act, no suit, action, or other proceeding 
 shall be proceeded with or commenced against the company except with the 
 leave of the Court, and subject to such terms as the Court may impose." 
 
 And s. 1G3 is as follows : — 
 
 1G3. "Where any company is being wound up by the Court, or subject to the 
 Bupervision ot' the Court, any attachment, sequestration, distress or execution
 
 LIBERTY TO PROCEED WITH ACTIONS, &c, 495 
 
 put in force against the estate and affects of the company after the commence- Form 602. 
 ment of the winding-u}), shall be void to all intents." 
 
 Orders are frequently made under section S7. See Forms 003, et seq., infra. 
 The application should not be ex i^at-te : Western Brazilian Co., W. N. 1880, 
 lis ; i2 L. T. 821. 
 
 It has been held that under s. 87 the Court has a discretionary power to 
 permit a creditor to i^roceed with executions, &c., declared void by s. 103. But 
 see now Re Vron Co., 20 C. Div. 112. 
 
 Upon the a]iplic(iii of IT., ;i debeiituro holder of the sd co, by summons Form 603. 
 dated the 11th Dec., 1 870. and upon hearing the solors for Jipph cant. Liberty to 
 
 for the off. hq. of the sd co, and for and , trustees for the debenture 
 
 debenture liolders of the sd co, and upon reading, &c. : Let the sd H., bi'i|,f/actioD 
 as such alleged holder of eight debentures of oo/. each in the sd co, be 
 at libty to take all such proceedings in this Ct against the sd co and 
 other parties as the applicant may l)e advised. JVctv Toivii Manure Go.., 
 M. R. 12 Dec, 187(5. B. 1S7.S. 
 
 A mortgagee or mortgage debenture holder will be given liberty as of course 
 to enforce his security. Lloyd v. Lloyd ^ Co., G C. Div. 339 ; Hamilton's 
 Windsor Ironworlcs, 27 W. R. 827 ; Jones v. Swarisea Soc., 29 W. E. 382. 
 
 Let the applicant be at libty to commence and prosecute an action Form 604. 
 against the above-named co in this Ct and Division for the recovery of ^,jQ^i,gi. 
 20<)0l., the amount of twenty debentures of lOO/. each, of the sd co, 
 numbered, &c., of which he is the holder ; such del)entnres purporting 
 to form a charge upon the nndertaking, and all the land [4'''-Ji of the co. 
 .But such action is not to l)e prosecuted beyond giving notice of trial 
 therein, without further leave of the judge first obtained. Ynisccdivtjii 
 Co., M. R., 5 Dec, 187(5. B. 11)17. 
 
 For order giving vendor liberty to bring action against company for sj^ecific Form 606. 
 
 pei'formance of agreement to purchase land, and to enforce lien for iinpaid . . ^ 
 
 purchase-money, or in the alternative for a rescission of the contract and "^l'^" *^ 
 
 i)Grioriii<iiiCGS 
 for other relief, see Industrial Coalcf Iron Co., M. R., li June, 1877. A. 1553. 
 
 Liberty to trustees for debenture holders to bring action to have trusts Administra- 
 carried into execution notwithstanding supervision order. Cadiz Waterworks, tions. 
 Malins, V.-C, 8 May, 1877. A. 882. 
 
 Upon the applicon of S., on l)ehalf of himself and other the holders of Form 606. 
 mtge debentures having a charge upon the nndertaking, ppty and effects Liberty to 
 ■of the above-named co, and who are fo rank pari juissu A\ith the ai^pli- rroceed with 
 cant in respect of the sd charge, and upon hearing the solor for the debentuie 
 api)licant, &c., Let the sd S. Ijc at lil)t}' to i)roceed with and prosecute ^^°l^'®'"^- 
 an action now pending in the sd Ch. Div. of the High Ct of Justice, 
 before his lordship the V.-C. Sir James Bacon, wherein the sd S. on 
 behalf of himself and the sd liolders of mtge debentures is ])lt and the 
 above-named co deft, 1877. S. No. 270. Scillu Islands Telegraph Co. 
 L'imfd, M. R., 9 August, 1878. 151)4 B. 
 
 Upon the applicon of B., the ])lt in a certain action of JJ/ale v. T/w Form 607. 
 Alhion tf'c, to show cause why the sd action now [)ending in the High t -v^TT 
 Ct of Justice, Com. Pleas Div., should not be proceeded with notwith- proceed with
 
 496 
 
 WINDING-UP. 
 
 action in 
 C. P. Di 
 
 Form 607. standing an order has been made for the winding up of the sd co, and 
 upon reading an afft, &c., and npon hearing the respive solors for the sd 
 B, and for the off. liq. of the sd co, Let the apphcant be at libty to pro- 
 ceed witli the sd action, he undertaking not to take any steps to enforce 
 any judgnit he may obtain without leave of the Ct or a judge, And let 
 the costs of the applicant relating to this appHcon l)e costs in the sd 
 action, and let the costs of the sd off. \U[. of such applicon be costs in the 
 winding up. Albion Life Ass. Co., Malins, Y.-C, 4 Mar., 1878. A. 50i>. 
 
 For order giving- liberty to proceed with .an action in which the company was 
 a co-defendant. "Costs reserved," see Vogt v. Knights tf Co. Pearson, J., 21 
 Feb., 18« k 
 
 As to liberty to proceed in Admiralty Division to enforce maritime lien 
 against ship, see Re Rio Grand Co., 5 C. Div. 282. 
 
 Form 608. 
 
 Execution 
 creditor given 
 first charge. 
 
 Declare that the ct is of opinion tliat Mr. Taylor is entled to the same 
 charge on the assets of the co in the hands of the sheriff as if such assets 
 had been sold by the sheriff under the writ of fi. fa. before the peton for 
 winding up the co was presented ; and let the sheriff go out of possession 
 and deliver the assets in his possession to the liqs ; and order the liqs to 
 sell forthwith sufficient assets to raise the amount due to Mr. Taylor in 
 respect of the three bills for 5()0<»/., and interest at 4 p. c, and costs, 
 and out of tlie proceeds of such sale pay Mr. Taylor the amount of his 
 jndgmt debt and interest at 4 p. c. thereon from the signing of the 
 jndgmt, and costs, and the costs of both motions, and pay the costs of 
 the sheriff. Libty to Mr. Taylor to apply in case the liqs do not sell 
 forthwith. Taylor v. Raihvaij Steel and Plan! Co., Hall, V.-C, 18 Feb., 
 1878, 8 C. D. 18C. Buckley, 210. 
 
 The above order was made after the order for transfer [Form GOO, suin-ci] had 
 been made. The creditor Avas thus dealt with because he had been unfairly 
 delayed by the comimny. See similar orders. Hill Pottery Co., I Eq. Gi9 ; Plas 
 Yn-Mhowys Co., i Eq. G89 ; and see -Be Richards, 11 C. D. 67G. But the authority 
 of these cases is doubtful. See T^-o>i Colliery Co., 20 C. Div. 442. 
 
 Form 609. 
 
 Liberty to 
 proceed with 
 ;irl)itration. 
 
 Upon the applicon of S., &c., Order that notwithstanding the order of 
 18 January, 1877, to continue the A'oluntary winding up of the sd co 
 under the supervision of the Ct, the sd S. be at libty to proceed with the 
 arbitration in the action of, &c., meiitd in the att"t of H. filed, &c., but 
 no execution under any award that may be made in sd arbitration is to 
 be issued without the consent of the Ct in these matters being first 
 obtained. And let the costs of the sd S. of this api^hcon and of the 
 applicon to dissohe the interim order of the 12th January, 1877, be costs 
 to be dealt with in the sd arbitration. Joi/il Slock Coal Co., LimUh, 
 j\r. E., IG January, 1877. 4G A. 
 
 Form 610. Upon tlie applicon of L. of , and upon hearing the respive solors 
 
 Liberty to^ foi' the applicant, the joint off", liqs., the debenture-holders, and Messrs. 
 
 distrain. Bower, the vendors to the co, and upon reading, &c., Let applicant be at 
 
 libty to distrain upon the goods and chattels of the co for the sum of
 
 LIBEETY TO LANDLORD TO DISTEAIX. 
 
 497 
 
 4327/. 55. lOd., being the net arrears of rent due to the applicant, Form 610. 
 accrued since the 11th of May, 1878, the date of the order for winding 
 up the sd CO after deducting income tax, in respect of the following ppty, 
 leases, and agrcemts and in the following sums (that is to say) : — 
 
 In respect of the X coal seam under a lease, dated, &c. 
 Half-year's rent due 1st July, 1878 . . . . 
 
 In respect, &c. 
 &c. 
 
 &c. 
 
 ^2025 
 980 
 &c. 
 
 Boicer AlUrton CoUieries, Limfd., ]\I. R., 3(J July, 1878. A. 1597. 
 
 Where a company retains for the convenience of the winding-up leasehold 
 property, the landlord will be o-iven liberty to distrain for rent accrued after 
 the winding-up order, see Forms 611, et seq.; or, what amounts to the same 
 thing, the liquidator will be ordered to pay the rent out of the assets, see 
 Form 558. In re North Yorkshire Iron Co., 7 C. D. 661 ; Re Oak Pits Colliery 
 Co., 21 C. Div. 322 ; 30 W. R. 751 ; 47 L. T. 7 ; Re Carriage Co-operative Co., 23 
 C. D. 154 ; Buckley, 212. For rent accrued before the winding-up the landlord 
 must prove. 
 
 Upon the applicon of A. of , and upon hearing the solor for the Form 611. 
 
 apjilicant and for S. the liq, and for W. and F., the mtgees of the sd co, AnotherT 
 and on reading the order dated the 0th of Feb., 1877, for winding up the 
 sd CO, an afft, &c., Let the applicant be at libty within 14 days from the 
 date of this order to distrain upon the stock, goods, chattels, and effects 
 of the sd CO for the sum of 50<)/., such sum being an apportioned amount 
 of G months' rent between 5 Jan., 1877, the date when the winding up 
 of the CO commenced, and the 13th May, 1877, of the T. Colliery and 
 other hereds situate, &c., due on the 13th May, 1877, from the sd 
 CO to the applicant under and by virtue of the indi'e of lease of the 
 sd colliery and other hereds dated, &c., this order to be without pre- 
 judice to any question of apportionmt between the dates afsd of the 
 rent or rents reserved by the sd lease or to any other question which may 
 hereafter be raised : And Let the sum of 11?. 13s. 0^., the ascertained 
 costs of the sd A. of and incident to this applicon, be pd by the sd co to 
 the applicant. Original HartUjwol Colliery Co., 25 July, 1877. B. 148G. 
 
 For order on application of official liquidator for liberty to sell leaseholds and 
 chattels, and on application of landlord for libei-ty to distrain, and official 
 liquidator undertaking to pay him 500?. on account, applications to stand over 
 till second Saturday in Michaelmas sittings, and meantime official liquidator to 
 be at liberty to sell, but not for less than amount due to landlord : value to be 
 set on chattels before sale. North Yorkshire Co., M. E., 21 June, 1877. 1502 B. 
 
 As to giving liberty to mortgagee. Re Broken, Bayley ^' Co., IS C. D. G49. 
 
 Upon the applicon of H. of , Let applicant be at libty, notwith- Form 612. 
 
 standing the sd order dated 18 May, 1878, to proceed with the distress Another 
 put in by him upon the premes in the occupation of the sd co, and to 
 sell the goods and chattels upon the sd premes for the ppose of realising 
 
 K K
 
 40S WINDING-UP. 
 
 Form 612. the sum of 102G?. C,s. dd., due to him for rent and royalties as of the sd 
 colUery, And Let the afsd li(]S out of the assets of the sd co pay to the 
 applicant the siun of 45Z. 4s. Id. for his costs of and incident to such 
 distress and of this applicon as between solor and client. Ivy House and 
 Northwood ColUerij Co., M. R., 10 July, 1878. A. 1494. 
 
 Where arrears are not paid, and landlord determines to re-enter, he can apply 
 to the Court for an order against the official liquidator to give up possession „ 
 Ee General Share Trust, 20 C. Div. 2G0. 
 
 Discovery and Inspection of Documents. 
 Form 613. On the pt of the off. liq. of the above-named co that A. B.,^vho clainm 
 
 Summons for ^0 be a Creditor [or C. D., a contriby] of the sd co may be ordered within 
 affidavit of (seveu) davs after service, to make and file a full and sufficient afft . 
 
 documents and , ,. t ".i i , i i n ■ i • • -a -e 
 
 inspection. Stating whether he has or has had m his possession or power any, and it 
 any, what, documts relating to the matters in question in the summons 
 in these matters dated, &c., and accounting for the same ; And that the 
 sd A. B. \_or as the case may le'] may be ordered at all reasonable times^ 
 
 upou reasonable notice, to produce at the office of Mr. , his solor, 
 
 situate at, &c., the documts which by such afft shall appear to be in 
 his possession or power, except such of the same (if any) as he may by 
 such afft object to produce ; and that the applicant, his solors and 
 agents, may be at libty to inspect and peruse the documts so produced^ 
 and to take copies and abstracts thereof, and extracts therefrom, as the 
 applicant shall l)e advised, at his expense ; and that the sd documts may 
 be produced upon any examination of witnesses in these matters and at 
 the hearing of the sd summons as the applicant shall require ; And that 
 the applicant may be at libty to make such further aj)plicon as to all or 
 any of the documts meiitd in such afft as he may be advised. 
 
 Where proceedings are pending in the winding-up between the official 
 liquidator, and any alleged contributory or debtor or any claimant, discovery 
 and inspection of documents is usually ordered on the application of either 
 party. To obtain discovery and inspection a siimmons should be taken out as 
 above. See further as to the practice : Seton, 147 ; Morgan, 519 ; Daniel Pr. 
 1674, et seq. ; Daniel, Forms, p. 919, et seq. ; Buckley, 216, 280. See also 
 15 & 16 Vict. c. 86, ss. 18, 20, and Order XXXI., Eules of 1883. An affidavit 
 in support of the summons is not generally requisite. The order follows the 
 terms of the summons. See Seton, 133, and infra. 
 
 For affidavit as to documents, see Form 8 in Appendix B. to Eules of 1883. 
 
 As to deposit before application for discovery, see Eules of 1883, 368. 
 
 Form 614. Upon the applicon of A., B., and V., respively, coutribs of the above- 
 named CO, and upon hearing the solors for the applicimts and for the off. 
 liq. of CO, Order that S., the off. liq. of sd co, do within 7 days after service 
 of this order make and file a full and sufficient afft stating whether he 
 has or has had in his possession or power any, and if any, what documts 
 relating to the matters in question in these matters, so far as regards the 
 summons dated 4 June, 1878, and the relief thereby sought against the
 
 DISCOVERY AND INSPECTION. 
 
 499 
 
 Another. 
 
 applicants and accounting for the same ; And [production, inspection, il-c] Form 614. 
 J)lae)iCackm Co., ^l.Ii.,lo Ju\j,187S. A. 1504. 
 
 The following are other examples : " Relating to the matters in question in 
 the summons issued by the said liquidator against the said A. and others on 
 
 the and retiu'nable on the of 1880," and "relating to the two 
 
 pending summonses issued by the said official liquidator, and another against 
 the directors of the company, dated respectively, &c." 
 
 As to discovery from official liquidator, see Ex parte Contract Corporation, 
 2 Ch. 350 ; Gooch's case, 7 Ch. 207 ; Re Mutual Society, 22 C. Div. 711 ; 31 W. E. 
 872 ; 48 L. T. G51. It appears from the case last mentioned that the official 
 liquidator will only be ordered to make an affidavit of documents in very special 
 circumstances : he will be ordered to permit insi^ection. See Form G18, infra. 
 
 U\)on the applicon of the oft'. li(i., &c., and upon hearing the solors for Form 615. 
 tlie applicant and for il. hereinafter named, Order that M., an alleged 
 contriby of the sd co, do within 7 days after service of this order make 
 and file a fall and sufficient aff't stating whether he has or has had in his 
 custody or power any and (if any) what documts relating to the matters 
 in question in this matter and his liability to be placed on the list of 
 contribs and accounting for the same, And [usual order for production 
 and insjtcction and also for produdmi] upon any examination of witnesses 
 in these matters and at the hearing of the applicon to place the sd M. on 
 the list of contribs of the sd co as the applicant shall require, iV:c. British 
 Fire Office, M. E., 2 Aug., 1878. A. 1864 
 
 Cpon the applicon of CI. the oft", liq., &c., by smmnons dated 3 Aug., Form 616. 
 1877, and upon hearing the solors for the applicant and for A., B., C, q^^^^ ^„ ■ j.^ 
 D., and E. respively, respondents to a summons on behalf of the sd G. several ° 
 as such oflF. li(|. of sd co dated 2 February, 1877, and upon reading, &c., respondents. 
 Order that the sd A., B., C, D., and E. respively do on or before the 
 :>Oth August instant, make and file a full and sufficient alft or full and 
 sufficient aff'ts stating whether they have or have had iu the possession 
 or power of them or any of them any, and if any, what documts relating 
 to the matters iu question in the sd summons and accounting for the 
 same, And order that the sd respondents do at all reasonable times and 
 upon reasonable notice produce at the office of their respive solors as 
 follows, namely, the respondents A., B., and C, at the office of Messrs. 
 
 , situate, &c., the respondent D. at the office of, &c., the respondent 
 
 E. (who appears iu person) at, &c., the documts which by such afft or 
 aflFcs shall appear to be in their or his possession, custody, or jiower, 
 except such of the same (if any), as they or any of them may by such 
 afFt or aflfts refuse to produce ; And, &c. [Jihty to faJcr copies, prodv.ction 
 at hearing, libf/j to maJce further a2)jilicon~\. Basijc Consolidated Silver 
 Mining Co., 9 August, 1877. A. 1(;22. 
 
 Inspection under s. 156 of the Act. 
 
 Orders are frequently made under the above section for the inspection of 
 books and papers of the company by contributoriesand creditors, see Credit Co., 
 11 C. D. 256; Contract Corporation, 7 Ch. 207; Yorkshire Fibre Co., 9 Eq. 950; 
 Imperial Land Co., W. N. 1882, 173. 
 
 K K 2
 
 iOO 
 
 WINDING-UP. 
 
 Form 617. 
 
 Order for 
 inspection 
 under s. 156. 
 
 Upon the apitlicon of H. a contriby of the above-named co, and upon 
 hearing the solors for A. the liq. of sd co and for the applicant, and 
 npon reading an order dated 21 March, 1877, Let the sd H., his solor or 
 agent be at hbty at all reasonable times npon giving reasonable notice 
 
 to inspect and peruse at the office of the sd A., situate at , the 
 
 several books, deeds, and ^vl'itings of the sd co and the depositions of 
 witnesses taken in these matters, in the possession, custody, or power of 
 the sd W. as liq of the sd co or his solors or agents. And let the sd H., 
 his solors or agents, be at liljty to take notes therefrom or abstracts 
 thereof or extracts therefrom as he may be advised at his own expense, 
 And let the sd W. upon reasonable notice produce the sd books, deeds, 
 writings and depositions on the examination at the applicant's instance 
 of any witnesses in these matters and at any hearing before the Ct in 
 these matters at the instance of the applicant as the sd applicant . 
 shall require, And let the costs of the production by the sd liq of the 
 sd books, &c., in psuance of this order be reserved. Planet, &c., Co., 
 Malins, V.-C, 27 June, 1878. 128(5 B. 
 
 Form 618. 
 
 Order for 
 insj)ection. 
 
 Upon the applicou of F. a contriby and creditor of co, and upon hear- 
 ing the solors for the applicant and for the off. liqs. of the sd co and for 
 R. a contriby and creditor of the sd co, and upon reading an order, &c.. 
 And it being admitted that the applicant is a contriby and creditor of 
 the sd CO, Order that the applicant be at libty after the completion of 
 his pending examination before the examiner of this Ct by the sd off. 
 liqs. in these matters, by himself, his solors or agents to inspect the books 
 and documts in the possession of the sd off. liqs. and also of the 
 several cos amalgamated therewith. And order that the applicant do give 
 to the sd off. liqs. one clear day's notice of any appointmt he may make 
 for such inspection, And order that the applicant do pay to the sd off. 
 liqs. 25. Qd. for every hour or pt of an hour (being the remuneration 
 payable to a 2nd class clerk of the off. liq.) occupied by such inspection, 
 And Icosfs of off. liqs. to he costs in ■winding-up']. Cape Breton Co., 
 Malins, V.-C, 3 Aug., 1877. A. 1573. This order was subsequently 
 modified, Reg. Lib. 35. A. 1878. See Jlutual Society, 22 C. Div. 714. 
 
 Order for 
 inspection in 
 voluntary 
 winding-up. 
 
 Form 619. Upon the applicou of li., of , a contriby of co, and upon hearing 
 
 the solors for the applicant and for A. tlie liq of sd co, and upon reading 
 the London Gazette dated 13 Sep., 1878, containing an advertisemt of 
 the resolution to wind up the sd co voluntarily, the afft of P. filed, &c.. 
 Order that the sd A. do within 7 days from the date of the service of 
 this order produce for the inspection of the sd L., his accountants, solors 
 
 and agents, at the office of tlie sd A., situate at or elsewhere, all 
 
 books, papers and other documts of the sd co in his possession or jiower 
 as such liq as afsd, except business books after the sale of the sd assets 
 to S., And it is ordered that the sd L. and his accountants, solors and 
 agents shall be at libty to take copies of any of the sd books, &c., and
 
 SPECIAL EXAMINERS. 501 
 
 extracts therefrom at the expense of the apph'cant. SUbor Liglit Co., Form 619. 
 Mah'us, V.-C, 13 Dec, 187S. B. 2247. 
 
 Formal parts : see supra, Form ;l^2. 
 
 Take notice that the off. hq. of the above-nauied co [or as the case Porm 620. 
 mai/ Je] intends to cross-examine the several deponents named and Notice to pro^ 
 
 described in the schedule hto upon their aflfts therein specified, And that duce deponent 
 
 for cross- 
 examination. 
 
 I have obtained an appointmt for such cross-examination before A. B.. °^ '^^°^^' 
 
 one of the examiners of the Ct [or before C. D., the s})ecial examiner 
 appointed on these matters, or before E. F., the chief clerk to his lurdshi}) 
 
 Mr. Justice ] for day the day of , at of the 
 
 clock in the noon at [state w/iere']. 
 
 And take also notice, that you are hby required to produce the sd 
 deponent at the time and place afsd for cross-examination before the sd 
 examiner [or as the case may he~\ accordingly. Add schedule showing- 
 (1) name of deponent, (2) description, (3) date of filing affidavit. 
 
 Under s. 40 of 15 & 16 Vict. c. 86, andEiile 502 of the Kules of 1883, any party 
 or witness having made an affidavit, is bound on being served with a subpoena 
 to attend before the examiner, or a sjiecial examiner, for cross-examination. 
 Eule 19 of General Order of 5 Feb., 1861, imposed on the party who filed the 
 affidavitthe onus of producing the deponent for cross-examination, butreqviired 
 notice [as above] of the intention to cross-examine to be given within fourteen 
 days after the filing of the affidavit, and forty-eight hours' notice to produce ; 
 but this rule does not appear in the Eules of 1883. Eule 518 does not appear 
 to apply in winding tip, and accordingly it would seem that the fourteen days' 
 limit no longer applies, unless it should be held that i>erhaps Order LXXII., 
 r. 2, preserves the practice in this respect. 
 
 As to subpoena, see Raymond v. Tapson, 22 C. Div. 13 I : and as to old practice. 
 In re KnigM, 25 C. D. 297. 
 
 As to expenses of witness. Working Men's Mutual Society, 21 C. D. 831. An 
 affidavit once filed cannot be withdra-vvn so as to avoid cross-examination. 
 Quartz Hill Co., 21 C. Div. 613. 
 
 Under the new practice an oi-der must be obtained referring it to the ex- 
 aminer in rotation to take the cross-examination [or appointing a special 
 examiner], and the attendance of the witness must be enforced by subpoena, 
 under r. 487. 
 
 Special Rraminers. 
 
 Upon the applicon of P. of, &c., the petr in the above matters, and ^^^.^j^ q2i 
 uDon hearing the solors for the applicant and for the above-named co, -- 
 
 1-1 t.\ r,-i.v. f Apponitment 
 
 and upon reading the peton presented in these matters on the JDtn oi ^j,^ winding-up 
 October, 1878, and the afft hereinafter mentd, Let T. esq., barrister-at- petition, 
 law, be appointed special examiner in the above matters for the ppose of 
 taking the cross-examination and re-examination of II. upon the afft 
 filed in these matters the 13th of November, 1878, and the cross-exami- 
 nation of any other pei-sons who may make any affts to be used at the 
 hearing of the sd peton. And Let the si depositions authenticated by 
 the signature of the sd examiner when taken l)e transmitted by him to
 
 502 WINDING-UP. 
 
 Form 621. the [Record and Writ Clerks' Office of this Ct] there to Ijb filed. 
 MaJahar aold Washing Co., Hall, V.-C, 20 Nov., 1878. B. l>o08. 
 
 Where it is desired to cross-examine parties who have made affidavits uiwn 
 a petition^ a special examiner used generally to be appointed. See now Rules 
 of 1SS3, 487, et seq. But now the cross-examination generally takes place 
 before one of the examiners of the Court under Order XXXVII., rr. 39 — 50 (4th 
 February, 1881), and accordingly an order is made referring it to the examiner 
 in rotation, and the petition is directed to stand over. Sometimes a petition is 
 dii'ected to be heard with witnesses. 
 
 It seems that a petitioner has only a qualified right to cross-examine the 
 . company's witnesses. London Fish Market, 27 S. J. 600. And see Re Hoover 
 Hill Co., 27 S. J. 431, as to petitioner's right to discovery. 
 
 Form 622. Uioon the applicon of the otf. liq. of co, and upon hearing the solors 
 
 Appointment" ^^r the applicant and for B., and upon reading, &c., Let N. of -^ , 
 
 to take cross- barrister-at-law, be and he is hby appointed special examiner to take the 
 
 examination of •,• i • i.- x-j-i i t> i-iim.ri 
 
 claimant cross-examiuation and re-exami nation oi the sd B. upon his sd aiit [and 
 
 also to take the examination, cross-examination, and re-examination of 
 all other witnesses to be examined in relation to the claim of the sd B. 
 against the co and to the claim of the applicant against the sd B. by 
 summons dated, &c.], And let, &c. 
 
 Special examiners used frequently to be appointed in winding-up proceedings, 
 especially where for any reason exjjedition was necessary. But see now the 
 rules of 4th February, 1884, above mentioned. 
 
 The application for the appointment of a special examiner is usually made 
 by summons, and should be supported by an affidavit as to the circumstances, 
 and that the proi^osed examiner is a fit person, and has no interest in the 
 matters in question. See further as to the practice, Buckley, 272 ; Dan. Forms, 
 p. 342, et seq.; Rules of 1883, riile 487, et seq. 
 
 Form 623. Upon the applicon of L., the oflF. liq. of the co, for a special examiner 
 : to be apijointed to take the evidence of witnesses in these matters, and 
 
 Appointment ^^ 
 
 in general upon hearing the solor tor the applicant, and upon reading, &c., Let Y, 
 terms. ^g^^^^^ barristcr-at-law, (he consenting) be appointed special examiner for 
 
 the purpose of taking the evidence of witnesses in these matters, And 
 Let the depositions, &c. Saium, 4-c., Co., 12 j\Iay, 1877. B. 8;);!. 
 
 Form 624. Upon the peton of R. of , a creditor and member of co, on the 
 
 ; — : — ' ?,0 May, 1877, preferred into this Ct, praying that P. and K., the present 
 
 Appomtment ■', -,.,1 i t li l -i ■ t -, 
 
 on petition to liqs of the sd CO might be removed, and that some proper and independent 
 
 remove person or persons might be aiipointed oif. liqs. of the sd co in their stead, 
 
 hquidators. -^ , , . 1 ,. , , i /». 1 • ^ -,- 
 
 and upon hearing counsel tor the sd on. liqs., and upon reading the sd 
 
 peton : Order (at the request of counsel for petrs) that Mr. M. of , 
 
 barrister-at-law, be appointed special examiner for the ppose of taking 
 the examination of witnesses, the petr by his counsel undertaking to pay 
 the expenses of and incident to such examination without prejudice to 
 the question how such expenses should ultimately be borne : And let 
 the fm-ther hearing of the sd peton be adjourned until the 30th July, 
 J 877. Caj^e Breton Co., MaHns, V.-C, G July, 1877. A. 13G5. 
 
 Form 625. Upon the applicon of the off. liq. of the co, &c.. Let A. of • , be 
 
 Appointment ajipointed examiner for ppose of taking the cross-examination of sd P.
 
 WITNESSES. 503 
 
 on his sd cafffc, tiled, <^-c., and tlic examination and cross-examination of Form 625. 
 other witnesses in these matters : And Let the sd off. liq. be at Kbty to with provision 
 
 employ J. of , interpreter and translator of the Portuguese, French, ^^ t" i'lter- 
 
 and other languages, to act as interpreter and translator into English of 
 the vmt voce evidence to be given in the French language by the sd P. 
 before the sd examiner : And let the translation of such evidence which 
 is to be made by the sd J. be ndopted and filed as truly representing the 
 vivd voce examination or deposition of the sd P. Portuguese Contract Co., 
 10 June, 1870. Malins, V.-C. 
 
 Upon the applicon of the off. liq., &c., Let Gr., B., and C. attend before Form 626. 
 S, H., esq., barrister-at-la\v, the special examiner appointed in the above order for 
 
 matters by an order dated IG April, 1878, at his chambers, No. — , attendance of 
 
 Court, Temple, in the city of London, for the ppose of being examined 
 on behalf of the sd off. liq. with reference to the claim against the sd co 
 made by the sd Cx. Milan Tramivaijs, Hall, V.-C, 9 July, 1878. B. 
 1902. 
 
 If a witness does not attend before the examiner, an order can be obtained 
 requiring him to attend. See Dan. Pr. 803. Lisbon Steam Tramways, 2 C. D. 
 575. And default is contempt of Coui't. Eules of 1883, 490. 
 
 Evidence of Witnesses. 
 
 In the -windiug-tii) of a company, occasion very commonly arises for obtain- 
 ing the oral evidence of witnesses. 
 
 In cases where s. 115 of the Act applies [infra, p. 504], the evidence may be 
 obtained under that section ; but in other cases the witness will either make an 
 affidavit, or if he will not do this, the party requiring his evidence can examine 
 him before the examiner, or before a special examiner, and make use of the 
 deposition so obtained. An order referring it to the examiner must be obtained. 
 The attendance of the witness can be prociu-ed by wi-it of subpoena, ad testifi- 
 candum or duces tecum. See s. 40 of 15 it IG Vict. c. 86, and Eules of 1883, 487, 
 ct seq. For forms of subpoena, see Eules of 1883, App. J., Forms 1 to 7. For 
 orders to attend, see Forms 618, 632. 
 
 Notices to 2)roduce and admit documents. 
 In the matter, &c. 
 
 Take notice that you are hby recfuired to produce to the Ct, at the Form 627. 
 hearing of the peton in these matters, all books, papers, copies of letters, N~tic~~to 
 and other writings and documts in your custody, possession, or power produce at 
 containing any entry, memorandum, or minute relating to the matters ^|*^x-V"° °^ 
 in question in these matters or any of them, and particularly, &c. 
 Dated, &c. 
 
 P. Q., solor to the above-named co 
 [or as the case mcuj be^ 
 
 To Mr. and Messrs. his solors 
 
 {or as the case may le']. 
 
 Notice to produce is generally given by either side in the case of a winding- 
 up petition. Dan. Pr. 774. As to notice to produce documents referred to in 
 pleadings or affidavits, see Order XXXI. r. 15, et seq., and Credit Co., 11 C. D. 
 256 ; National Funds Assur. Co., W. N. 1876, 192.
 
 504 WINDING-UP. 
 
 Porm 628. In the matter, &c. 
 
 Notice to Take notice that you are hby recjuired [in psuance of the order [see 
 
 produce before Fomi 633, et seg.'] made in these matters, dated, &c.,] to produce [state 
 
 examiner. u'Jiere ; CIS :] before the special examhier appointed herein, at his 
 
 chambers, No. , on the ■ day of , 1880, at o'clock in 
 
 the forenoon, all books, &c. [as ahove^, relating to the matters ii; ques- 
 tion in these matters [here specif i/ the parlccrs ; as : so far as regards the 
 
 summons issued the of and the claim of A. B. herein], and in 
 
 parlar the following, that is to say [//ei-e sjiccify thcm'\. 
 
 Notice to produce dociiments at the hearing of a motion or summons, or at 
 examination of witnesses, is frequently given. See Dan. Forms, p. 931 et seq. ; 
 and Eules of 1883, Order XXXI. 
 
 As to notices to admit, see Eule 51 ; Dan. Forms, p. 325 ; Eules of 1883, 
 Order XXXII. 
 
 As to enforcing production of documents referred to in affidavit or pleading, 
 see Eules 357, 359, 360, and Quilter v. Heatley, 23 C. Div. 49 ; 31 W. E. 331. 
 
 As to subpoena duces tecum, see Eule 502. 
 
 Examinaticju and iliscovenj under s. 115 of the Act. 
 
 S. 115 of the Act provides that, "the Court may, after it has made an order 
 for winding-up a company, summon before it any officer of the company or per- 
 son known or suspected to have in his possession any of the estate or effects of 
 the company, or supposed to be indebted to the company, or any person whom 
 the Covu-t may deem capable of giving information concerning the trade, deal- 
 ings, estate, or effects of the company ; and the Court may require any such 
 officer or person to produce any books, papers, deeds, writings, or other docu- 
 ments in his custody or power, relating to the company ; and if any person so 
 summoned, after being tendered a reasonable sum for his expenses, refuses to 
 come before the Court at the time appointed, having no lawful impediment 
 (made known to the Court at the time of its sitting, and allowed by it), the 
 Court may cause such person to be apprehended, and brought before the Court 
 for examination ; nevertheless, in cases where any person claims any lien on 
 any papers, deeds, or writings or documents produced by him, such production 
 shall be without prejudice to such lien, and the Court shall have jurisdiction in 
 the winding-up, to determine all questions relating to such lien." See also s. 117. 
 
 The powers conferred by the above section are fi-equently exercised, e.g. 
 (1), where the liquidator, from an examination of the books and papers of the 
 company, or otherwise, has reason to suspect that there may be some claim 
 under s. 165 {infra, p. 507) ; or, (2), where he thinks there may be ground for 
 taking proceedings for an action against promoters or others; or, (3), where 
 proceedings are pending against the company, and he desires to ascertain 
 whether he can i^rudently proceed with or defend an action. Massey v. Allen, 
 9 C. D. 165 ; Bateman's case, 15 W. E. 245 ; 15 L. T. 495. 
 
 It is not necessary to make out a prim'' facie case before the summons will be 
 issued ; a case of suspicion may be enough. Be Gold Co., 12 C. Div. 77. 
 
 For cases of examination, see English Joint Stock Bank, 3 Eq. 203 ; Swan's 
 case, 10 Eq. 675 ; Fricker's case, 13 Eq. 178 ; Financial Insurance Co., 36 L. J. 
 Ch. 687 ; Trowen and Lawson's case, 11 Eq. 8 ; Clement's case, 13 Eq. 179 ; Be 
 Cathcart, 5 Ch. 703 ; Buckley, 267. As to interrogatories, see Alexandra Co., 
 1(! C. D. 58. As to api^eal by witness, Silkstone Co., 19 C. Div. 118; Heiron's 
 case, 15 C. Div. 139. 
 
 In order to obtain a summons the licjuidator need not file an affidavit ; he 
 makes a written statement. Be Gold Co., 12 C. Div. 77; Carter's case, 19 W. E. 
 55 ; 23 L. T. 446. Prima facie the examinations will be entrusted to the liqui- 
 dator, but, if he refuses to act, the Court may authorise some creditor or cou-
 
 EXAMINATIONS UNDEE S. 115. 505 
 
 tributory. Silkstone Co., 19 C. Div. 118. As to who may attend, see Grey's Form 628. 
 Brewery, 25 C. D. iOO ; 32 W. E. 381 ; 50 L. T. 14. Supra, p. 483. 
 
 Formal payis .- src sujira, Fomi 3H1. 
 
 A. B., of, ifcc, and E. F., of, etc., are hl)y severally snininoiietl to Form 629. 
 attend at the chambers of the Master of the Rolls [(xr A'ice-Chancellor Summons to 
 
 ], in the Rolls Yard, Chancery Lane [_or No. , Lincoln's Inn], attend for 
 
 in the Comity of Middlesex, on day of , 1 s— , at of the sfn!'!!^ ^°"' 
 
 clock in the noon, to he examined on the i)t of the off', liq. \_or of 
 
 W. 1)., of, &c.] f(jr the ppose of proceeding's directed by the Master oi 
 the Rolls [_or the sd Vice-ChancellorJ, to be taken before me in the 
 abo\e matter. [And the sd A. B. is hby required to bring with him and 
 produce, at the time and place afsd, a certain indre [describe don /nits'], 
 and all other books, papers, deeds, ^vritings and other documts in liis 
 custody or power in anywise relating to the above-named co]. 
 
 Dated this day of , IH— . C. H., C7ti'ef Clerk: 
 
 This smnmons -was taken out by Messrs. C. & I)., of , in the 
 
 county of , solors for the off. liq. [or for the sd AV. D.]. 
 
 The attendance of a "witness for examination under s. 115 of the Act, should 
 he secured by chief clerk's summons as above (which is copied from Form 54 
 in Schedule to Rules), and not by suVjpcena. Re English Joint Steele Co., 3 Eq. 
 203. In order to procure the issue of the summons an appointment should 
 be obtained, and if the circumstances stated to the chief clerk justify, he will 
 issue the summons. See as to the practice. In re Gold Co., 12 C. Div. 82 ; and 
 Buckley, 268 et seq. 
 
 If the person summoned does not attend, the Court will make an oi'der 
 requiring him to attend. Lisbon Steam Tramu-ays Co., 2 C. D. 575, infra, p. 500. 
 
 The power given by this section is frequently exercised especially with a view 
 to proceedings under s. 1G5 of the Act. See In re Gold Co., ubi siqyra. 
 
 The witness is entitled to counsel, and to re-examination. Cambrian Co., 
 20 C. D. 370. 
 
 As to what the witness must disclose, see Silkstone Co., 19 C. Div. 118; 
 Buckley, 271. 
 
 Upon the applicon of the off. Hq., itc, by summons dated 21 April, Form 630. 
 1877, and upon hearing the solors for the applicant, and upon reading onler^ivin"^ 
 the orders in these matters dated res])ively 7 July, 187G, and 4 August, Hherty to 
 187t), and the afft of B. of service of the sd summons on the persons ''"™™°"' 
 hereinafter named, filed :'> .May, 1877 : The judge doth hby appoint M. 
 
 of , esquire, barrister-at-law, special examiner for the impose of 
 
 taking the evidence of witnesses in these matters ; And let the sd off. 
 liq. be at libty to summon before the sd special examiner the following 
 persons for the ppose of their being examined respecting the affairs of 
 the sd CO, that is to say, H. L., R. L., F., S., B. & G. 3/endq) Hematile, 
 dr., Co., Malins, V.-C, 3 May, 1877. B. 808. 
 
 Formerly an order as above was not uncommon, biit since the new rules as to 
 examiners the appointment of a special examiner will probably be less common. 
 See supra, p. 502. 
 
 In the margin of the summons it is usual to write the follow.ing note : " Take 
 notice that on the return of this summons it will be forthwith adjourned to 
 . esq., the examiner appointed in this matter, before whom you will be
 
 506 
 
 WINDING-UP. 
 
 Form 630. iii^mediately refiiiirtd to attend, in order tliat your examination may be pro- 
 — copded with." And on the return the Chief Clerk indorses the summons. 
 
 Another form 
 providing for 
 shortliand 
 notes. 
 
 Form 631. U])()ii tlic applicou of P. & AV., tlic off. liqs. of the co, &;c., Let J. be 
 appointed s]3ecial examiner to take the examination, cross-examination, 
 !ind re-examination of the sd B. and others in reference to the affairs, 
 l)pty and effects of the above-named co and the other cos amalgamated 
 tlierewith, And let by consent such examination, cross-examination, and 
 re-examination be taken do\Yn by a short-hand Amter, and when taken. 
 let the depositions, authenticated by the signature of the sd examiner, be 
 transmitted by him to the [Record & Writ Clerks' Office of the Ch. Div. 
 of this C't], there to be filed : And order that such depositions may be 
 read in evidence in the course of any proceedings taken in the above 
 matters with the authority of the judge to Avhose Ct the same may for 
 the time being be attached. (Jape Breton Co., Limld, Malins, V.-C, 11 
 May, 1878. A. 849. 
 
 It is very common to employ a shorthand writer in such cases. When the 
 shorthand notes have been transcribed, they must be read over to the witness, 
 and he must be called on to sign the deposition. In re Sir John Moore Mining 
 Co., W. N. 1878, 87. 
 
 Form 632. Upon the api)licon of J., the off. liq., <S:c., that A. & H. niight be 
 Another. ordered, upon receiving due and reasonable notice, to attend at their 
 
 own expense before , esquire, the special examiner appointed in 
 
 these matters, at his chambers, No. , New Square, Lincoln's Inn, 
 
 and be examined pursuant to the Chief Clerk's summons dated 25 May, 
 1878, and that the sd A. & H. might be ordered to pay the costs of the 
 adjournrat ])efore the judge in chambers on the 5th of June, 1878, and 
 the costs of and consequent upon the sd ajDplicon which upon [ad- 
 journed into Ct], and upon hearing, &c., and upon reading, &c.. Order 
 that the sd A. & H. do at such time and place as the sd examiner shall 
 'Ppoiut attend and be sworn and examined as witnesses in these matters. 
 And order that the costs to be taxed by the taxing master of the ajipli- 
 cant of the sd applicou in chambers and occasioned by the adjournmt 
 thereof into Ct, including the costs of the Chief Clerk's summons dated 
 •2'') May, 1878, be allowed out of the assets of the sd co. InternaUonal 
 ( 'unlnirl Co., Hall, V.-C, 29 June, 1878. A. 1.330. 
 
 Form 633. Upon the ajiplicou of the off. liq. of co to examine S. of as a 
 
 Another. witness in these matters, and upon hearing the solor for the sd off. liq. 
 
 and tlic solor for the sd 8., ajid upon reading an order, &c., Order that 
 the sd S. do, upon paymt of his i)roper expenses, attend before Y. of 
 
 , barrister-at-law, the special examiner appointed in the above matters 
 
 on the 20th of June, 1877, at 11 o'clock in the forenoon, to be examined 
 on the pt of the sd off. liq. foi- the ]ipose of proceedings directed to be 
 taken l)y the judge \n the above matters, x\nd the sd S. is hby required 
 to bring with him and produce at the time and place afsd all books, 
 deeds, writings, and other docuints in his custody or power in anywise 
 relating to the sd co. ^Saturn Silcer Mining ( 'o., 18 June, 1877. B, 1045.
 
 MISFEASANCE AND BREACH OF TRUST. 507 
 
 Examination of Peesons in Scotland. 
 
 S. 127 of the Act of 1862 empowers the Court to direct the examination in 
 Scotland of any person for the time being in Scotland, whether a contributory 
 of the company or not, in regard to the estate, dealings, or affairs of any com- 
 pany in the course of being wound wp, or in regard to the estate, dealings, or 
 affairs of any jierson being a contributory of the company, so far as the coni- 
 13any may be interested therein by reason of his being such contributory, and 
 contains provisions as to the mode in which the examination is to be effected. 
 
 For order, see Contract Corporation, M. E., 20 Nov., 1877. A. ll'.il. 
 
 Misfeasance and hreacli of trust : s. 105 of the Act. 
 
 S. 165 provides that, " Where in the course of the winding up of any com- 
 pany under this Act, it appears that any past or present director, manager, 
 official or other liquidator, or other oificer of such company, has misapplied or 
 retained in his own hands or become liable or accountable for any monies of 
 the company, or been guilty of any misfeasance or breach of trust in relation 
 to the company, the Court may, on the apj^lication of any liquidator, or of any 
 creditor or contributory of the company, notwithstanding that the offence is 
 one for which the offender is criminally responsible, examine into the conduct 
 of such director, manager, or other officer, and compel him to repay any monies 
 so misapplied or retained, or for which he has become liable or accountable, 
 together with interest after such rate as the Court thinks just, or to contribute 
 such sums of money to the assets of the company by way of compensation in 
 respect of such misapplication, retainer, misfeasance, or breach of trust, as the 
 Court thinks just." 
 
 Orders are frequently made under the above section. The application is 
 usually made by the official liquidator by summons, supjjorted by the requisite 
 evidence. In many cases, before taking proceedings, the official liquidator 
 obtains the appointment of a special examiner under s. 115 [supra, p. 502, et 
 .seq.'] and examines before him the supposed delinquent and other persons 
 capable of throwing light on the transaction in question. The following are 
 some of the cases in which orders have been made under this section. Stringer's 
 •case, 4 Ch. 475 : Director ordered to rej)ay dividend declared and paid to him 
 under fx-audulent and delusive balance sheet. Ranee's case, 6 Ch. 104 : Director 
 ordered to rei)ay bonus improperly paid to him. National Funds Assurance Co., 
 10 C. D. 118: Directors ordered to repay dividends improperly paid to share- 
 holders out of capital. Alexandra Palace Co., 21 C. D. 149 ; Fliteroft's case, 21 
 C. Div. 519 ; 31 W. R. 174 ; British Imperial Assurance Corp. : Similar orders 
 against dix-ectors. [See Form 637, infra.^ McKay's case, 2 C. Div. 1 : Secre- 
 tary ordered to pay full nominal value of paid-up shares given him by vendor. 
 De Riivigne's case, 5 C. Div. 306 ; and Pearson's case, o C. Div. 336 : Similar 
 orders against directors whose qualiiication shares had been given them. Mit- 
 calfe's case, 13 C. Div. 169 : Similar order against director who had accepted 
 shares from promoter. [See Form 544.] National Fuiids Assurance Co. -. Direc- 
 tors ordered to make good amount which ought to have been invested in Govern- 
 ment Securities, viz., half the premiimis paid by policy holders. [See Form 
 C36, infra.] Similar order against directors in British Guardian Life Assurance 
 Co., 14 C. D. 335 ; 28 W. E. 945. Englefield Co., 8 C. Div. 388, and Form 634, 
 infra ; Directors ordered to make good a sum paid to a promoter " for prelimi- 
 nary expenses," out of which the directors' qualifications were provided. Rail- 
 way, ^c, Co., Marzetti's case, 28 W. E. 541 ; 42 L. T. 206: Director ordered to 
 repay sums paid nominally for preliminary expenses, but really for rigging the 
 market. In re Public Su2:>ply Association, W. N. 1880, 106 : De facto director
 
 50H WINDING-UP. 
 
 ordered to pay nominal value of shares taken and paid for by him, with fees 
 improperly paid him by the board. 
 
 S. 165 does not create any new liability or right, but only provides a more 
 convenient means of enforcing rights and remedies which would have been 
 enforceable by action if there had been no winding up. Canadian Land, S(c., 
 Co., Coventry cj' Dixon's case, 14 C. Div. 66G ; 28 W. E. 775. In this case 
 Jessel, M. E., had ordered directors who had acted without the requisite quali- 
 fication shares to pay to the liquidator the amount which they would have had 
 to pay therefor, but the order was reversed on appeal. See also Forest of Dean 
 Co., 10 C. D. 450 ; 27 W. E. 594; and Re Cape Breton, W. N. 1884, 54. 
 
 An order under s. 105 cannot be made against the executors of a deceased 
 director. In re British Guardian, Sfc., Co., ubi supra. But they may in some 
 cases be made liable in an action, see s^lJ)ra, p. 389, and Form 340. 
 
 As to delay barring a claim, see Metropolitan Bank v. Heiron, 5 Ex. Div. 319, 
 and Flitcroft's case, 21 C. Div. 519 ; Re Alexandra Palace Co., 21 C. D. 150, and 
 supra, p. 239 ; Buckley, 367. 
 
 Where a director was ordered, under s. 165, to pay the full nominal value of 
 the shares, it was held that he was not "a trustee or person acting in a fiduciary 
 capacity," within the third exception to s. 4 of the Debtors Act, 1869, and 
 accordingly could not be committed to prison for default in paying. Diamond 
 Fuel Co. (2), 13 C. D. 815 ; 28 W. E. 435. 
 
 The summons usually seeks a declaration of liability. See the orders below, 
 and British Seamless Co., 17 C. Div. 470; Alexa7idra Pal. Co., 21 C. D. 150 ; Re 
 Great Wheal Polgarth Co., 49 L. T. 20. 
 
 Prima facie the company's solicitor is not an officer within this section. Re 
 Great Wheal Polgarth Co., 49 L. T. 20. 
 
 Non-feasance is not misfeasance within this section. Forest of Dean, 10 C. D. 
 450 ; Wedgwood Co., 47 L. T. 612 ; 31 W. E. 181. 
 
 No set-off is allowed upon a proceeding under this section. Flitcroft's case, 
 21 C. Div. 519; A7iglo-French Soc, 21 C. D. 492; Milan Tramways, 22 C. D. 
 122 ; 31 W. E. 107, and Addenda. 
 
 A claim under s. 165 is a chose in action, which may be sold and assigned 
 under s. 95. Park Gate Co., 17 C. Div. 234. Accordingly, parties who are 
 liable to proceedings under that section sometimes find it worth while to buy 
 the whole assets, paying a composition to creditors, and the costs of the wind- 
 ing up. 
 
 Torm 634. Upon the applicon of , the off. liq., &c., Declare that the sd C, 
 
 '~' . H., P., S., and W., directors named in the prospectus of the sd co, are 
 
 repayment of jointly and Severally liable to pay the sum of 3000/., being the balance 
 
 money after ffivino' credit for the sum of 500/. already received by the sd off. 
 
 improperly o o j j 
 
 paid for Hq. of the sum of 3r)00/., the amount pd to S. in respect of preliminary 
 
 «v!i™lT'^^ expenses and retained or applied by the sd S. for pposes other than pre- 
 liminary expenses properly payable, together with interest at the rate of 
 ;') p. c. p. a. on the sd 3500/. from the I'espive dates of the paymt of the 
 cheques to the sd S. as shown by the sd afft of, &c., as follows, namely, 
 1200/. on, &c. [and so fortK], And order that the sd C, &c., do within 
 14 days from the date of this order, or within 4 days after service of 
 this order, jointly and severally pay the amount of the sd sum of 3000/. 
 and such interest as afsd to the sd S., the off. liq. of the sd co. And 
 order that the sd C, &c., do pay to the sd off. liq. the costs of and 
 incident to this applicon and consequent thereon, such costs to 1)C ta.xed, 
 &c. bJmilefidd Colliery Co., LimlJ, ^lalins, Y.-C, 28 July, 1877. A. 
 1720. 8 r. Div. 288. 
 
 expenses.
 
 MISFEASANCE AND BEEACH OF TRUST. 599 
 
 Upon the applicon of B., the liq of the above-named co, Sec, and Form 635. 
 the Ct being of opinion that the persons named in the schedule hto are ^j , 
 jointly and severally liable to refund the sum of 000/. in respect of directors to 
 monies of the sd co improperly retained by them while directors for the \^^^ monies 
 ppose of paying up the 20 shares held by each of them therein, and retained to 
 interest thereon as hereinafter mentd : Order that the sd several persons i^|^y i^^''^"^'-*- 
 named in the schedule hto pay to the sd B., the liq of Vie sd co, at his 
 
 office, Xo. , Street, &c., Avithin 4 days after the service of this 
 
 order on each of them respively, the sum of 1053Z. 135. 7d., being the sd 
 sura of 900/. so retained by them, as directors with the sum of 
 153/. 13s. 7d. for interest, less income-tax, due to the date of this order 
 at the rate of 5 p. c. p. a. from the date when the sd monies making up 
 the sd sum of 1)00/. were respively retained after deducting income-tax, 
 And order that the sd several persons named in the sd schedule do also 
 pay to the sd B. interest at the rate afsd on the sd '.)()()l. from the date 
 of this order until paymt. Paf/'/if Cocoa Fibre Co., Bacon, Y.-C, 1878. 
 B. G4.5. 
 
 Upon the applicon of the off. liq. and of, &c.. Declare that each of the Form 636. 
 sd directors of the co is jointly and severally liable to the extent of half order on 
 the premiums received by them respively dming the respive periods directors to 
 when they were such directors after deducting the amount of death \diicrou^Air'' 
 claims pd under policies and any sums pd for surrender value of jwlicies, *« l'"^« '^^en 
 And let the j^ersons named in the first column of the schedule hto (being 
 the sd directors) on or before 17 Dec, 1877, or subsequently within -4 
 days after service of this order, pay into Ct to the credit of this matter, 
 *' In the matter, ttc," to an account to be intituled " Policy Guarantee 
 Account," the sums in the second column of the sd schedule set opposite 
 the names of such persons respively amounting in the whole to 
 028/. ISs. bd.. And let C, &c., pay to the apphcants their costs of the 
 applicon in chambers and of and incident to this order, to be taxed, &c. 
 National Funds Co., Isl. R., 17 Nov., 1877. B. 3675. This order is 
 referred to in Pie British Guardian Co., 1-1 C. D. 335. 
 
 Upon the ap})licon of H., the off. liq., &c.. Declare that all persons Form 637. 
 being directors of the co, who in any manner authorised, sanctioned, or ^7^ ^ ^j j 
 participated in the paymt to shareholders of interest on their respive ing liability of 
 shares out of the caj)ital of the sd co are jointly and severally liable to l-efu^^ii'^iyi. 
 repay to the off. liq. of sd co the amount so pd M-ithout prejudice to the dends jaid out 
 rights of the directors so liable after they shall have pd to the off. liq. ?^ 'JJ^^'J^ '"*'' 
 the amounts due from them respi\'ely to recover the same from the 
 shareholders who received such paymts ; And let the following inquiries 
 be made : 1. An inquiry what were the amounts of the A"arious paymts 
 so made respively, and when aiul to whom the same were respively made. 
 2. An inquiry what persons were directors of the sd co at the respive 
 times when such paymts were made and which of them in any way 
 authorised, sanctioned, or participated in the making of such paymts ;
 
 510 
 
 WINDING-UP. 
 
 Form 637. And costs of oft", liq. of applicon to be taxed and allowed out of assets of 
 CO. Briiisli TmperiuJ Insurance Corporation, lldk\\,\.-Q., 4: Aug.. 187t». 
 A. 2173. 
 
 Form 638. 
 
 Order against 
 directors after 
 inquiry. 
 
 See Flitci-oft's case, 21 C. Div. 510 ; Re Alexandra Palace, 21 C. D. 150. 
 
 Upon the applicon of off. li(|. of co and of B., a whole life policy 
 holder of co, to further proceed with the summons in these matters issued 
 2(1 May, 187!>, and upon hearing, &c., Order that jDursuant to the sd 
 order of 15 Mar., 1880, and the chief clerk's certificate dated 27 July, 
 ] 880, the .several persons named in the 1st column of schedule hto, being- 
 some of the directors of co., do on or l^efore 31 Mar., 1881, or sub- 
 sequently within 14 days after service of this order, pay to ott". licp at his 
 office, situate, &c., the respive sums set opposite their respive names in 
 the 2nd column of schedule, being the sums for which such persons 
 respively are liable in respect of uninvested premiums on whole life 
 policies of sd co, and [resjjondenfs to imy costs of ajypIico7is']. Schedule 
 showing bonus and amounts. British Guardian Life Assurance Co.y 
 Hall, V.-C, 17 Mar. 1881. A. 643. 
 
 secujity. 
 
 Form 639. Upon the applicon of W. & B. by summons dated 21 Feb., 1877, that 
 Order on ^' ^^® ^^" ^^^' ^^ ^^' ^^ ^^® ^^ ^° might be ordered within 7 days to give 
 
 application Ly security for the costs of the applicants of certain proceedings instituted 
 secuHtv^"*'^'' ^'y ^^^^ ^^ ^- ^^ such off. liq. for the recoveiy of the sum of 5V),000/. from 
 tlie late directors of the sd co, and that in the meantime such pro- 
 ceedings might be stayed as against the applicants, and upon hearing 
 ('(junsel, &c., and upon reading, &c., and the sd G. undertaking per- 
 sonally to pay any costs to which the applicants, being the respondents 
 to the sd applicon made by him, may be held to be entled and ]iaymt 
 whereof they shall not obtain from the sd co, The Judge doth not think 
 tit to make any order upon the sd summons except that the costs of the 
 applicon be costs in the sd proceedings taken by the sd off. liq. against 
 such respondents. Baseije Consolidated Silver Co., Hall, Y.-C, 16 Ap., 
 1877. A. 811. 
 
 For orders in actions against directors, see " Orders," supra. 
 
 Compromises. 
 
 S. KiU of the Act provides as follows : 
 
 " IGO. The liquidators may, with the sanction of the Court, whei'e the com- 
 pany is being wound iip by the Court or subject to the supervision of the Court, 
 and with the sanction of an extraordinary resolution of the company where the 
 company is being wound up altogether voluntarily, compromise all calls and 
 liabilities to calls, debts, and liabilities capable of resulting in debts, and all 
 claims, whether present or future, certain or contingent, ascertained ox sound- 
 ing only in damages, subsisting or supposed to subsist between the company 
 and any contributory or alleged contributory, or other debtor or person appre- 
 hending liability to the company, and all questions in any way relating to or 
 affecting the assets of the company or the winding up of the company, upon 
 the receipt of such sums, payable at such times, and generally upon such terms
 
 rOMPEOMlSES. 511 
 
 as may be agreed upon, with power for the liquidators to take any security for Form 640. 
 the discharge of such debts or liabilities, and to give complete discharges in ' ~ ' 
 respect of all or any such calls, debts, or liabilities." 
 
 The Court has no jurisdiction to compel a liquidator to compromise. Pear- 
 son's case, 7 Ch. 309. In sanctioning a compromise, the Court is exercising a 
 judicial discretion, and accordingly evidence of the propriety of the compro- 
 mise must be forthcoming. Ex pte. Totty, 1 Dr. & Sm. 273 ; G Jur. N. S. 849. 
 But the sanction of the chief clerk is sufficient, though, of course, any of the 
 parties can require the matter to be heard Vjy the judge. Ex pte. Garstin, 10 
 W. E. 457. See further Buckley, 313. 
 
 A contributory who is unable to pay the calls made on him generally endea- 
 vours to effect a compromise. In such case he is very commonly required to 
 make an affidavit as to his means, and if it seems desirable he can be cross- 
 examined thereon. If the official liquidator is satisfied, he will enter into a 
 provisional agreement with the contributory embodying the terms of compro- 
 mise, and will then apjjly for the sanction of the Court. See Rule 49 and Form 
 50 in Schedule to Eules. See also Buckley, 317 et seq. 
 
 The following are some examples of affidavits made by contributories with 
 view to compromise. 
 
 1. I am the holder of 100 sliares in the above-named co, and I am Form 640. 
 unable to pay the two last calls of 5/. per share lately made npon me in Affidavit of ^ 
 respect of the sd shares. contributoiy 
 
 2. The paper writing now shown to me and marked witii tlie letter A compromise. 
 contains a full and true account of all the ppty and effects, real and 
 personal, which I possessed, or in which I had any share or interest in 
 possession, reversion, or expectancy at the time of the stoppage of tlie 
 
 sd CO on the of , and also of all such pts of my sd ppty as 
 
 have since been sold or contracted to be sold, and the jjrice at which 
 such sales or contracts have been made, and as nearly as I can ascertain 
 the full and true value of all such pts thereof as still remain to l)e sold. 
 
 0. I have no ppty whatsoever, real or pei'sonal, of any description, 
 nor am I eutled either in possession or reversion to any share or interest 
 in any ppty whatsoever which is not included in the sd statemt. 
 
 4. I have not made away with, incumbered, or charged, settled, or in 
 any manner parted with any pt of my ppty or effects, real or personal, 
 since the failure of the sd co on the IGth of October, 187G, save as 
 appears by the sd account. 
 
 5. The paper WTiting now produced and shown to me marked B con- 
 tains a true and just account of all sums of money received and pd l)y 
 me since the 16th of October, 187G, down to the 6th of July instant. 
 
 G. My income is derived from a salary of IGOI. p. a., which I receive 
 from my employers Messrs. D. & C, and such income has not for the 
 last two years exceeded the sum of IGO?. p. a. 
 
 1. I am settled on the list of contribs of the aliove-named co in respect Form 641. 
 of 30 shares in the sd co. Another! 
 
 2. The sd shares were pchased and held by me in my own right and 
 not as trustee on behalf of any other person whomsoever.
 
 512 
 
 WINDING-UP. 
 
 Form 641. 
 
 Form 642. 
 
 Summons to 
 sanction agree- 
 ment for 
 compromise. 
 
 r>. The paper writing noAV produced and shown to me marked A con- 
 tains a fall and true statemt of all the ppty and effects, real and personal, 
 which I possessed or in which I had any share or interest in possession, 
 reversion, or expectancy at the time of the commencemt of the winding- 
 up of the sd CO on the of , and of all such pts of my sd ppty 
 
 as have since been sold or contracted to Ijc sold, and the price at which 
 such sales or contracts have been made. 
 
 4. I have no ppty, &c. I have not made away, &c. 
 
 5. My income is derived from my occupation as a commercial tra- 
 veller, and amounts to the sum of 400/. p. a. and no more, which sum it 
 has not exceeded for two years last ]iast. Out of the sd sum I have to 
 apply the sum of 50/. p. a. in paying tlie premium on a policy for 1,000/. 
 effected on my life in the year . 
 
 C. My sd income is barely sufficient for the support of myself and my 
 family, consisting of my wife and three children, and I have no other 
 means of support, and have no ppty in possession, reversion, remainder, 
 or expectancy, or any prospect of coming into any money or income 
 from the death of friends or otherwise other than that mentd in the sd 
 paper writing marked A. 
 
 7. I owe for money borro\^•ed some years ago 500/. and have no 
 means of paying the same. 
 
 On the pt of the off. liq. of the above-named co that an agreemt of 
 compromise dated, &c., and- made between the sd off. liq. of the one pt 
 . and X. one of the contribs of the co of the other pt may be sanctioned. 
 
 The following form is an example of an affidavit of a liquidator in support. 
 See supra, p. 511. Where the agreements are numerous the liquidator and the 
 contributory should make a joint affidavit to save expense. 
 
 Form 643. 
 
 Affidavit of 
 official Hqui- 
 dator as to 
 ]iroposed 
 comiiromise. 
 
 Formal parts : see supra, Form 383. 
 
 1_ H. of has been settled on the list of contribs of the above- 
 named CO in respect of • • shares therein, and by an order in these 
 
 matters dated, &c., a call of 20/. per share has been made on him in 
 respect thereof, amounting to 200/. 
 
 2. The sd H. has applied to me to accept a compromise of 50/. to be 
 pd as follows, &c., and five guineas towards the costs of the agreemt for 
 the sd compromise in full discharge of his liability in respect of the sd 
 call of 20/. per share, and all liability as a coutriby of the sd co. 
 
 3. I have investigated the affairs of the sd H., who has made an afft 
 
 as to his means, filed the day of , and have caused him to be 
 
 cross-examined on such afft before the examiner of this Ct, and as the 
 result of such investigation and cross-examination it appears that the sd 
 H. cannot pay the sd call, and I believe that if I cause him to be made 
 a bankrupt I shall not ol)tain from his estate as much as I shall by the 
 sd compromise. I believe that it will be beneficial to the sd co that the 
 sd compromise shall be accepted.
 
 COMPROMISES. 513 
 
 Form 644. 
 
 Form of A(jrcehieni. 
 
 A form of agreement between the official liquidator and a contributory is 
 given in the schedule to the Gen. Order of Nov. 18G2, No. 50, and that form is 
 generally followed as closely as may be, but sometimes the contributory agrees 
 to pay a sum by instalments, and the following clause is always required to be 
 inserted. 
 
 C. Provided always that nothing iierein contd sliall prejudice or affect 
 the rights of the sd co, or of tlie sd off. liq. or of the ereditors of the co 
 against any contribs of the sd co, whether as present or past members 
 thereof or otherwise, and that the liabiUty of such )ncmbers to contribute 
 to the assets <if the co shall remain the same as if this agreemt of com- 
 promise had not been made, exce])t only to the extent of tlie sd sum of 
 /. so to be pd as afsd. 
 
 Upon the appliconof theoflP. liq., &c., Let the agreemt for compromise < >i-dcr sanction- 
 ^ ^ ^ 1 '"? agrecmeut 
 
 dated, itc, and made, &c., be sanctioned. for com- 
 
 promise. 
 
 Upon the applicon, &c., Let the off. liq. of the sd Bank be at libty to Form 645. 
 accept from the applicant the smn of 100/. together with 10/. lO.s-. 0^/. Order sanction- 
 for costs, in the whole 110/. 10s. Or/, in discharge of the apphcant's "^? ''"'^P™- 
 
 ' Oil mise. 
 
 liability as a contriby of the sd Bank and otherwise, and in discharge of 
 all claims of the sd Bank against him. London and Sahurhan Banlr 
 Limid, Hah, V.-C, !) :\ray, 187S. S04 B. 
 
 In some cases in order to avoid the expense of an agreement, the liquidator 
 applies for liberty to compromise, as in the above case. 
 
 Upon the applicon of AV., the liq of co, and upon hearing the solor for Form 646. 
 the sd liq, and upon reading an afft of M. filed, &c., Let the sd liq be at Another. ~ 
 libty to compromise with the sd j\L in respect of his liability for calls 
 due to the sd co by accepting the sum of 20/., together with the costs of 
 this applicon, such costs not to exceed tlie sum of 5/. bs. Od. in full 
 ^satisfon and discharge thereof. Welsh Sfeam Coal, 19 Sep., 1870. 
 B. IGO;). 
 
 Comp'oniises rcith creditors and others. 
 
 Upon the applicon of the oflF. liq., &g., Let the sdoflP. liq. be at libty to Form 647. 
 compromise the action commenced by tlie above-named co (with the LiVertvto 
 sanction of the Ct) against i\[. upon the terms embodied in the exhibit official liquidii- 
 B. to the aflft of the sd off. li(|. being the proposed minutes of judgmt in i^ic^eaction!!'^' 
 thesd action signed by the solors for the respive defts. MemUp Hematite 
 Co., Malins, V.-C, U Jan. 1878. B. 570. 
 
 For order in winding up giving official liquidator liberty to compromise 
 action of comjiany against Grant and others, as regards two of the defendants 
 upon payment of l.OOOL a-piece, see Lisbon Steam Tramways, Malins, V.-C. 
 13 June, 1878. B. 1221. And see Form 32G. 
 
 L L
 
 514 WINDING-UP. 
 
 Form 647. For order on motion giving official liquidator liberty to compromise landlord's 
 claim, 2,000L to be paid Ijy company, and certain leaseholds and chattels to be 
 given tip to company, see Victoria ^' Fentov Co., Bacon, V.-C, 21 Jan. 1878. 
 B. 429. 
 
 For order giving official liqviidator liberty to release equity of redemi^tion in 
 patents, see Metal Tube Co., Hall, V.-C, 17 Mar. 1878. B. 478. As to the juris- 
 diction, see General Share Co., 20 C. Div. 2G0. 
 
 Liberty to 
 compromise 
 with debtor 
 
 Form 648. Uijon the applicon of the off. hqs., TiCt the applicants upon W. of 
 
 paying to them the costs of and incident to this aj^plicon, such costs to 
 be taxed in case tlie parties diffei', l)e at libty to accept from W. hj the 
 instahuts mentd in the sd afft the sum of ')7L IGcV. ^jd. in full discharge 
 of a debt of 152?. 12s. lid. due from the sd ^X. to Bank prior to its 
 suspension, such delit being in respect, &c., Libty to off. liqs. to apply 
 as to costs of applicon if ^Y. docs not pay. West of Englaiul, dr., BanlCy 
 Fry, J., 7 July, 1K7D. B. 1421. 
 
 Compromise 
 
 with 
 
 mortgagee. 
 
 Form 649. Upon the applicon of S. by summons, &c., and the sd C as such off' 
 liq. as afsd by his solors admitting that the sum of 7G,300?. is now due 
 from the sd co to the sd S. for principal on the indres of mtge and bill 
 of sale in the summons and afft mentd, and the sum of 37t)()/. for interest 
 thereon up to this day, making together 80,090/'., and the sd C. as such 
 off. liq. admitting that the amount due to the sd H. largely exceeds the 
 value of the mtged ppty, And tlie sd C\ as sucli off. liq. claiming that 
 sundry chattels now on or about the works and land comprised in the sd 
 mtge are not suliject to the sd mtge and l)ill of sale or either of them r 
 And the sd S. without admitting such claim agreeing to pchase all the 
 interest (if any) of the sd co or the sd off. liq. thereof in the sd chattels 
 for the sum of 200/. : It is by consent ordered that the sd co as from 
 the date hereof staiid absolutely debarred and foreclosed of and from all 
 right, title, interest and equity of redenqition of aud in the sd mtged 
 ppty : And let the sd co and the sd off. liq., u[)on paymt by the sd S. tO' 
 the sd off. liq. of the sum of 200/. and upon l)eing required so to do,, 
 release and convey the sd equity of redemption and all right, title and 
 interest to and in the sd chattels to the sd S. or as he shall direct at his 
 expense, and either party is to be at liljty to apply as he or they may be 
 advised. Britannia Iron W()rki<. s Auu\ 1877. A. lool. 
 
 Form 650. 
 
 Order giving 
 liberty to 
 compromise. 
 
 Upon the appbcon of W, P. & L. the liqs of the above-named co, and 
 upon hearing the solors for the ai)})licants, and upon reading the London 
 Gazette, of the 15th June, 1875, containing a notice of resolution to 
 wind up the sd co voluntarily and of the appointmt of liqs, and upon 
 reading an afft of W. P. & L. filed 1 Aug. 1877 : Order that the sd liqs 
 be at libty to compromise the cross claims made in the proceedings for 
 winding up by the sd co on the one hand against Messrs. T. W. & Sons,^ 
 
 of , and the sd Messrs. T. W. & 8ons against the sd co on the other 
 
 hand, upon the terms of the sd co and the sd Messrs. T. "W. & Sons.
 
 MEETINGS IN WINDING-UP. 515 
 
 mutually foregoing and releasing the sd claims against one another. Form 650. 
 Hum2)hreys & Pearson, ]\[alins, Y.-C, (J Ang. 1877. A. 1032. 
 
 Although the above and the following orders were made in a voluntary 
 winding-up, they are of course equally useful as precedents in a compulsory 
 "winding-up. 
 
 For order giving liberty to refer to arbiti'ation, see supra. Form 502. 
 
 Upon the applicon of "W. the off. liq. of the ahove-uanied co, by smii- Form 651. 
 mons, dated, &c., for leave to take proceedings to enforce ])aymt of the Compromise, 
 amount due by T. : Order that the agreemt dated the 20 Oct., 1883, 
 made between W. the off. liq. of the one pt, and T. of the other pt, to 
 compromise the debt of 2,100/. due from the sd T. as a contriby of the 
 sd CO, by accepting the sum of 200/. in discharge thereof by the paymt 
 of lOOZ. in cash, and two promissory notes of 50/. each respively, paya])le 
 on, &c., the sd T. waiving his claim of 1,181/. 2^. 8d., certified to l)e 
 due to him by the sd co by the chief clerk's certificate, dated IGth day of 
 March, 1883, be coniirmed and carried into effect. And order that the 
 monies to be recei\'ed by the sd off. liq. under the sd compromise be 
 accounted for by him in his account as such off. liq. Doivlms Iron Co., 
 Kay, J., Dec, 1883. 
 
 In the matter, &c. Form 652. 
 
 Memorandum. ^ Memorandum 
 
 The ]\Iaster of the Eolls has directed a meeting of the creditors of the of direction for 
 above-named co to ho. summoned pursuant to the al)Ove statute for the °' 
 
 ppose of ascertaining their wishes as to continuing to carry on the works 
 with the view of effecting a sale thereof as a going concern, and that 
 
 such meeting shall be held on, &c., at the office of the off. liq., No. , 
 
 Old Jewry, in the City of London. The judge has appointed G. the sd 
 off. liq, to act as chairman at such meeting. 
 
 Meetings of creditors or contributories are frequently directed pursuant to 
 s. 91 of the Act of 1862 for the purpose of ascertaining their wishes in regard 
 to matters connected with the winding-up. See as to such meetings Eu.les 45, 
 46, and 47, and I'orms 45, 46, 47, 48, and 49 in Schedule to the Eules. The 
 meeting is very commonly called pursuant to a memorandum as above, but 
 sometimes an order is made. 
 
 A meeting may be called to consider whether a winding-up order shall or 
 shall not be made. Thus in the case of The Emma Silver Mining Co., a petition 
 having been presented, Malins, Y.-C, dii-ected a meeting of members to be 
 convened " for the purpose of ascertaining their wishes as to certain matters 
 relating to the winding up of the company." 
 
 At the foot of the notice was a statement as follows : — 
 
 The following resolutions have been suggested by his [Honoui*] the Vice- 
 Chancellor, as embodying the points upon which he desires to be informed of 
 the wishes of the above members : — 1. " That it is the opinion of this meeting 
 that the operations of the company can be carried on with a reasonaljle 
 prospect of success, and that the Vice-Chancellor, Sir E. Malins, be requested 
 not to make any order for the winding up of the company." If such motion 
 be negatived, the following to be moved as a substantive motion: — 2. "That 
 
 L L 2
 
 516 
 
 WINDING-UP. 
 
 Form 652. it is the opinion of this meeting that this company be wound up compulsorily 
 by the Court under the petition of Mr. A., now pending." 
 
 And a meeting is sometimes called to consider in what way the company 
 shall be wound up. City ^- County Bank, 10 Ch. 470. 
 
 For order on application of liquidator for liberty to call meeting of creditors 
 and members to ascertain whether they desii-ed vendor's lien of 10,000L to be 
 paid out of the assets, and if so, liquidator to pay same off, but the payment 
 not to affect rights of secured and unsecured creditors, inter se. South Durham 
 Iron Co., Hall, V.-C, 1 Aug., 1877. B. 147G. 
 
 As to meetings under the Joint Stock Companies Arrangement Act, 1870, 
 see ittfra, '"Arrangements." 
 
 Costs. 
 
 As to the costs of the parties to the winding-up petition, see supra, p. 423, 
 et seq. 
 
 The petitioner's costs where a winding-up order is made are a first charge 
 on the assets. Audley Hall Cotton Co., 6 Eq. 245 ; and he is entitled to them 
 free of set-off. General Exchange Bank, 4 Eq. 138. 
 
 Accordingly it is not uncommon to pay them early in the winding up. See 
 Form 5G0. 
 
 As to costs directed to be paid by the company in liquidation, or by official 
 liquidator : such costs are to be paid in full out of the assets, and not merely 
 proved for. Madrid Bank v. Pelly, 7 Eq. 442; Ex parte Levick, 5 Eq. 69; Ex 
 pa rte Smith, 3 Ch. 130 ; Ferrao's case, 9 Ch. 355. And such costs do not take 
 priority over the official liquidator's costs. Bronfield Co., 23 C. D. 511 ; and 
 compare with In re Home Investment Society, 14 C. D. 167. Dominion of Canada 
 Co., W. N. 1884, 38 ; 32 W. E. 425. 
 
 As to the official liquidator's costs, i. e., the costs of the winding up : — 
 As a general riile he is entitled to his costs of all proceedings iwoperly taken. 
 Silver Valley Co., 21 C. Div. 381. 
 
 If the assets are deficient, the Court can give the costs incurred in winding 
 up the company priority, s. 110 of the Act. In such case they will rank next 
 after the petitioner's costs, and befor* the official liquidator's remuneration. 
 In re Massey, 9 Eq. 367 ; In re Trueman's Estate, 14 Eq. 278 ; Webb v. Whiffin, 
 L. K. 5 H. L. 735. But they only rank, pai-i passu, with costs ordered to be 
 paid. Dronfield Co., and other cases, uhi supra. 
 
 Where there are incumbrances such as mortgage debentures, and the mort- 
 gaged property is realised in the winding up, the liquidator's costs, charges, 
 and expenses of the realisation are the first charge, the incumbrances rank next, 
 and the general costs of the winding up are payable only out of the surplus, 
 if any. Oriental Hotels Co., 12 Eq. 126; Regent's Canal Co., 3 C. Div. 411. 
 
 The solicitor of the official liquidator has no claim for the costs of the wind- 
 ing up against the official liquidator personally, Anglo-Moravian Co., 1 C. D. 
 130 ; Dominion of Canada Co., ubi supra ; nor has he any lien on the file of 
 proceedings for such costs. Ex parte Pullbrook, 4 Ch. 627. 
 
 For orders to tax costs of provisional liqiiidator, see supra. Forms 411, 
 et seq. 
 
 The official liquidator applies periodically by summons to have his costs, 
 charges, and expenses taxed. The following is the visual ordei*, and the 
 summons can readily be framed from it. 
 
 As to official liquidator's position, see Silver Valley Mines, 21 C. Div. 381. 
 
 Form 653. Upon the applicon of the off. hq. of the al)Ove-named co, and upon 
 
 Usual order to hearing the solors fur the applicant, and upon reading an order, &c., 
 
 tax. Refer it to the taxing-master to tax the costs, charges, and exi)enses of 
 
 the appHcant as such off. hq. as between solor and cHent from the time 
 
 of his appointmt [or from the day of last, the foot of the last
 
 T.iXATION OF COSTS. 5I7 
 
 taxation] up to and including this order ; [And in taxing such costs Form 653. 
 the taxing-master is to have regard to any sums of money received on 
 account or in respect of costs of compromise with any cuntribs or other- 
 wise ;] And it is ordered that such costs, charges, and expenses when 
 taxed be pd out of the assets of the sd co as and Avhen the judge shall 
 give directions for that ppose. 
 
 Sometimes the paragraph between brackets is not inserted in the summons, 
 but it is almost always inserted in the order. Where the liquidator is 
 engaged in legal proceedings on the company's behalf, the application and 
 order generally make special provision for the taxation thereof. See Forms 641 
 et seq. And special directions are often given as to including costs inciu-red on 
 appeal, &c. 
 
 The order to pay is usually obtained on a subsequent application. See 
 Forms 602 and 663. Sometimes, however, the liquidator, with the sanction of 
 the chief clerk, pays the costs when taxed without any order, and is allowed 
 them in his next account. 
 
 Tax, etc., including, tK:c., and including the pit's costs of the action Form 654. 
 brought by the above-named co against G. and others now pending in TajTcosts 
 this Ct, the distincti^'e mark to such action being, &-c., as between solor inchuling costs 
 and client, but in taxing such costs, charges, and expenses, and costs ° 
 respively the taxing-master is to have regard to any sums of money 
 received in respect of costs of compromise with any contribs or otherwise, 
 And costs, (Sic, when so taxed to be pd by apphcants out of assets of ct» 
 as and when judge gives directions for that ppose. Lisbon Steam Tram- 
 tvays Co., Limtd., ^lalins, Y.-C, 15 June, 1878. 1158 B. 
 
 Tax, &c., and also including the costs of and relating to the appeal in Form 655. 
 
 the case of P. W. and J. and H., contribs of the sd co, And Let such Order to tax 
 costs, &c. Wwcltam Shij) dr., Co., Bacon, Y.-C, 3 June, 1878. 1085 B. inchuling costs 
 See Silver Valleij Mines, 21 C. Div. 381. ""^ '''^'^''''''' 
 
 Tax, &c., and Let the sd costs when taxed be pd l)y the applicant out Form 656. 
 of the assets of the sd association, and be allowed him in his account as Tax and pav. 
 such off', liq. Universities Cor])oration, Hall, Y.-C, 20 May, 1882. 
 B. 947. 
 
 Upon the a[iplicon of ^lessrs. M. k M. the late solors fur W. tire off". Form 657. 
 liq. of CO, and ujjon hearing the applicants and the now solors for the sd Order wliere 
 off., liq., and upon reading the order dated, &c., Refer it, &c., to tax the change of 
 costs, charges, and expenses of the sd AY. as such off. liq. as afsd during 
 the time when the sd applicants were his solors from the 17th June, 1876, 
 down to the 14th June, 1877, when the now solors of the sd off. liq. 
 were api)ointed, including therein the costs of the applicon and of this 
 order, and in taxing such costs {^regard compromise^ \\vX Let the amount 
 of such costs, charges, and expenses when so taxed be pd by the sd off", 
 liq. out of the assets of the sd co. Lisbon Steam Tramiraijs, ^lalins. 
 V.-C, 20 June, 1877. B. 1127.
 
 518 
 
 WINDING-UP. 
 
 Form 657. Where the official liquidatox" changes his solicitors and the assets are not 
 
 sufficient to pay the whole of the costs of the successive solicitors, the solicitors 
 
 will, as a general rule, be paid rateably so far as the assets will extend. In re 
 Aiulley Hall, cfc, Co., 6 Eq. 245. 
 
 Form 658. We, each sjicaking positively for himself, and to the best of his kuow- 
 
 Affidavit as t ^^^§"® ^^^^ belief as to other persons, say : that we haA'e not, nor have 
 
 costs received nor has either of us, nor have nor has any other persons or person by 
 
 in respect of ^^^^. ^^, gjj^j-^gj. ^f q^^. Q^jjer, or for our or either of our use, received any 
 compromise.s, ' ' •' 
 
 &c. sum or sums of money in respect of the costs of the off. liq. of the above- 
 
 named CO. [save and except the sums mentd in the first schedule hto.] 
 
 2. And we, each sjDeaking, &c., any sum or sums of money in respect 
 of the costs of compromises with any contribs of the sd co or otherwise 
 [save the sums mentd in the second schedule hto]. 
 
 An affidavit by the official liquidator and his solicitor, as above, is requisite 
 on taxation. 
 
 Form 659. 
 
 Taxing 
 
 Master's 
 
 certificate. 
 
 In pursuance of the order in these nmtters bearing date the of 
 
 — , I have been attended by the solor for the off. liq. of the above- 
 
 named CO, aud in his presence I have taxed the costs, charges, and 
 expenses of the sd off. liq. therel)y directed to be taxed at the sum of 
 400?., and I find that the sum of 130/. has ))een received in respect of 
 compromises with contribs or otherwise, which being deducted from the 
 sd sum of 400/. there remains the sum of 271/. which is due in respect 
 of such costs : All which I humbly certify to this Houourable Ct. 
 
 Form 660. 
 
 Another. 
 
 In pursuance of an order in these matters dated &c., I have been 
 attended by the solors for the off. liq. of the sd co, and I have taxed the 
 costs, charges, aud expenses of the sd off. liq. l)y the sd order directed 
 
 to be taxed at the sum of — /., and I find l)y the afft of S. filed this 
 
 of that not any sums of money whatever have been received in 
 
 respect of compromises with contribs or otherwise, 
 certify to this Honourable Ct. 
 
 All Avhich I humbly 
 
 Form 661. On the pt of the off. liq. of the above-named co that he may l)e at 
 
 Summons-^for" ^^^^J to pay /. on uccount of costs to 'Sir. B., his solor in these 
 
 liberty to pay matters. 
 
 costs. 
 
 Order giving 
 liberty to pay 
 costs. 
 
 Form 662. Upon the applicon of C, the off. liq., &c., and upon hearing the solors 
 for the applicant, and upon reading an order, &c., the afft, &c., and the 
 certificate of the fund in the Bank of England : Let the sd off. liq. be 
 at libty to retain and pay to his solors, Messrs. S. & C, the sum of 
 167/. 12s. (Jd., behig the amount of their costs, charges, and expenses as 
 taxed pursuant to the sd order dated, &c. : And Let the sd off. liq. 
 be at libty to retain out of such assets tlie sum of 200/. on account 
 of his remuneration as such off. liq. of the sd co : And Let the sd off".
 
 APPEALS. 
 
 519 
 
 liq. be allowed the sd sums of 1G7/. 12s. M. and 200?. on passing his Form 662. 
 accounts : And Let the costs of this applicon be costs in the winding- up. ~^ 
 
 Anglo-Continental Ship Co., Hall., V.-C, 25 May, 1878. A. 981. 
 
 See also Form G53 siqira. 
 
 Very commonly where liberty to pay is !,'iven, no order is drawn up, but the 
 chief clerk makes a note (Order oo, v. 835) that liberty has been given and that 
 the amount jjaid is to be allowed in next account. 
 
 Another, 
 
 Upon the applicon of C. tlie oft', liq., itc. : Let the sd sum of Form 663. 
 03/. 15s. '3d. [in bank] be pd to the sd C. as such off. liq. as afsd in 
 discharge of his costs taxed under the sd order of 1 May, 1878, he 
 undertaking thereout to satisfy the claim (if any) of K., solor, in respect 
 of charges relating to the appointmt of tlic applicant iis off. liq. of the sd 
 CO: And [dissolution order : vacate recognisance]. IsU of WiijJit Ferry 
 Co., 9 August, 1878. A. 1882. See also Forms 075 et mi. 
 
 That it may be referred to the proper taxing-master to tax as between Form 664. 
 solors and clients the costs, charges, and expenses of the applicant as gammons to 
 such oft", liq. from the foot of the last taxation up to and inchiding the tax costs, &c., 
 costs of the order to be made hereon, and also that the taxing-master J^^^j^l^^g^^^ 
 do tax the anticipated costs of tlie sd applicant from the date of such costs of 
 last mentd order to the final winding-up of the sd co, including therein co^l^Qy^ 
 the costs of vacating the recognisance entered into by the applicant and 
 his sureties. 
 
 Where a company is about to be dissolved, it is not uncommon to apply to 
 have the costs of dissolution taxed by anticipation as above. 
 
 Apj)eah. 
 Chancery Division, Form 665. 
 
 In the Court of Appeal. jTT^ . 
 
 In the matter, &c. appeal motion. 
 
 Take notice that the Ct will l)c moved on day the 
 
 day of 188 — , or so soon thereafter as counsel can be heard, 
 
 by Mr. A. as counsel for and on behalf of [B. and C. creditors of the 
 named co, or as the case maij he'] that \_keie state the nature of the appli- 
 con, as : the order made by His Lordshi]i the Vice-Chancellor Sir 
 
 in the above matters on the day of may be discharged 
 
 or varied, or that such order may l)e made as to this Honourable Ct shall 
 seem fit.] 
 
 Dated this day of , 188—. 
 
 \_Add solars name as in Form 314:.] 
 
 To [na))ie of respondent, as: B. the ott'hq. of the above-named co, and 
 to Mr. , his solor.] 
 
 The time for appealing from any order or decision in a winding up is 21 days, 
 to be computed in the case of an affirmative order from the time when the order
 
 520 
 
 wiNDiNG-rr. 
 
 Porm 665, is signed, entered, or otherwise perfected, and in the case of a refusal, from the 
 
 date of refusal. Order LYIII. r. 9. See Risca Coal Co., 4 D. F. & J. 45G; 31 
 
 L. J. Ch. 429. The rule applies to the winding-up oi'der itself. In re National 
 Funds Co., 4 C. D. 305. As to extending time, see Manchester Economic, 24 
 C. Div. 488 ; South African Syndicate, 28 S. J. 152. 
 
 Where the order appealed from is in the nature of an interlocutory judgment 
 finally settling the rights of the ijarties, the notice of api^eal must be a 14 days' 
 notice : h\ other cases a 4 days' notice is suiEcient. In re Stockton Iron Co., 10 
 C. D. 349. Order LYIII. rr. 2, 9. 
 
 An appeal is brought by notice of motion as above, which must be served 
 within the time limited. The appeal must be entered with the proper officer of 
 the Court of Appeal before the day named in the notice to appeal for the hear- 
 ing. Order LVIII. r. 8. In re National Funds Co., ubi supra. 
 
 Where an ex parte application has been refused by the Court below, it can be 
 renewed in the Court of Appeal within 4 days from the date of refusal, or 
 within such enlarged time as a judge of the Court below or of the Appeal Court 
 may allow. Order LVIII. r. 10. 
 
 An appeal does not operate as a stay of proceedings, except so far as the 
 judge or the Court of Appeal order. Order LVIII. r. IG. 
 
 If, therefore, it is desired to stay proceedings, application should l^e made 
 accordingly. The application to stay must be to the Court below in the first 
 instance, and, in case of refusal, to the Court of Appeal. The 21 days' limit 
 does not apply in such case. Cropper v. Smith, 24 C. Div. 305. 
 
 Where it is desired to appeal from the order of a judge at chambers, applica- 
 tion must first be made by motion in Court to the judge to discharge the order, 
 or else special leave to appeal must be obtained from him or from the Court of 
 Appeal. Judicature Act, 1873, s. 50. Holloway v. Cheston, 19 C. D. 516. But 
 see Butler's Wharf, 21 C. D. 131 ; Manchester Val de Travers v. Stagg, 47 L. T. 556. 
 
 The application to the judge should be made within the 21 days' limit. Dick- 
 son V. Harrison, 9 C. D. 213 ; Heatley v. Newton, 19 C. D. 334. The Court of 
 Appeal will give leave where the jixdge certifies that he does not wish the case 
 to be reheard, or where the Court is otherwise satisfied that the case has been 
 deliberately decided by the judge. Thomas v. Elsom, G C. D. 310 ; Northampton 
 Coal Co. V. Midland, 7 C. Div. 500. 
 
 The official liquidator or any creditor or contributory can apijeal. As regards 
 the winding-up order, the company can also appeal, but in such case the Court 
 of Appeal will readily entertain an application for security for costs. 7/i- re 
 D)amo7id Fuel Co., 13 C. D. 400, 28 W. E. 309. 
 
 Where the liquidator in a winding-ui^ by or under the supervision of the 
 Court desires to apj^eal, he should apply to the judge for liberty so to do. In 
 re City cf County Co., 13 C. D.483 ; Silver Valley Mines, 21 C. D.381. Form 416. 
 
 The Court of ApjDcal will not give the liquidator his costs out of the estate, 
 but will leave him to apply in the winding up, Wescomb's case, 9 Ch. 553 ; In re 
 City cj' County Co., 13 C. D. 483, and where the apjieal is dismissed with costs, 
 the liquidator will be ordered to pay them personally, the intention being that 
 he is to pay whether he gets them out of the estate or not. Ferrao's rase, 9 Ch. 
 355. In either case the liquidator can apjily to the judge in the winding up to 
 be allowed the costs. See Form G57. 
 
 Order on 
 appeal dis- 
 charging order 
 
 Form 666. Upon motion I)}- way of appeal this day made unto this Ct l)y counsel 
 for C. and B. the surviving liqs of the al)Ove-named co, and ujjon read- 
 ing the order dated 13 Mar., 1(S7S, made upon motion, &c., whereby it 
 was ordered, &c., Let the sd order dated the I'd Mar., li^TH, be dis- 
 cliarged. And let the sd R., &e., pay to the sd C. and B. their costs of 
 the sd motion upon Avhich the sd order was made, and of the sd order and 
 of this appeal, including the costs of the shorthand notes of the jndgmt
 
 APPEALS. 
 
 531 
 
 of the V.-C. Malins, such costs to be taxed, &c. Devousliirc Silkstone Form 666. 
 Co., Ct of Appeal, 8 July, 187<s. A. U.")!. 
 
 Upou motion by way of appeal, &c., by counsel for P. and B. that the Form 667. 
 order dated 2r)th ^larch, 1878, made upon the summons of the off. liq. ^^.^^ ^. 
 issued in the above matters against the appellants and dated 2G October, appeal 
 1877, miffht be rescinded, and that the same might be dismissed with ^^^^^^^s 
 
 ' '^ ' ° order appealeil 
 
 costs to be taxed and pd by the oflF. liq. to the appellants, and upon from. 
 
 hearing counsel for the oft', liqs., itc, the deposition of the sd taken 
 
 upou his cross-examiiu^tioii filed ilthof May, 187S, Let the sd order dated 
 the 25 March, 1 878, be affirmed, and let the sd P. and B. jjay to the off", 
 liq. his costs of this appeal, such costs to be taxed, &c. British Farmers, 
 Cfc, Co., Ct of Ap])eal, ].'» May, J878. A. 1)35. 
 
 AVhas B. E. M. and J. the petrs in the order made in these matters Form 668. 
 dated the 1st of June, 187<s, named, did on the 1st of July, 1878, serve Order refusiiF'- 
 the above-named co with notice that this Ct would on the 15th of July f^peal. 
 be moved by counsel for the sd B. E. M. and J. by way of appeal fi'om 
 the sd order that the sd order might be discharged and that in lien 
 thereof it might l)e ordered that the sd co be wouud up by the Chancery 
 Division of the High Ct of Justice, with all proper directions for that 
 ppose including a direction for paymt of the applicants' costs in reference 
 to the sd order and the application, or that such other order might be 
 made as to Her Majesty's Ct of Appeal might seem fit, and counsel for 
 the sd B. E. M. and J. this day moving this Ct that the above-named co 
 by their secretary might be ordered within 7 days after service to make 
 and file a full aud sufficient afft stating whether they have and have had 
 in their possession aud power any and if any what documts relating to 
 the subject-matter of the sd peton, and accounting for the same, with 
 the usual directions for production and inspection thereof. And in case 
 this Ct should be of opinion that the notice of appeal given by the ap- 
 plicants on the 1st of July, 1878, was not within the time limtd for that 
 ppose, then that the applicants might l^e at libty to prosecute such appeal 
 notwithstanding, aud upon hearing counsel for the sd co and reading 
 the sd order dated the 1 June, 187'S, an aS"t, &c.. This Ct doth not 
 think fit to make any order on the sd motion, and doth order that the 
 sd appeal motion be dismissed, and that the sd B. E. ]\I. and J. do pay 
 to the sd CO their costs of the sd motion, and also their costs occasioned 
 by their having been served with the sd notice of motion of the 1st of 
 July, 1878, such costs to be taxed by the taxing-master. Brick and 
 Stone Co., Limtd., Ct of Appeal, 18 Dec, 1878. A. 2381). 
 
 As to ordering production of documents on appeal, see National Funds Assur- 
 ance Co., 2t W. R. 771 ; W. N. 1876, 192, and supra, p. 502. 
 
 Upon motion, etc., for J. of [cind otiier shareholders^ aud upou Form 669. 
 
 hearing counsel for V. and Y. creditors of the co upon whose peton an Order 
 
 order was made 18 ^lay, 1877, to wind up the co. And it appearins: bv restraining 
 
 ' advertisement
 
 pending 
 appeal. 
 
 ',0 WINDIXG-Ur. 
 
 Form 669. the receipt of one of the cashiers of the hank dated 23 May, 1877, that 
 ~ F. the sulor of the sd shareholders has lodged at the Ijank to the credit 
 of a Chancery Suspense account the sum of UK)/. :)s. \)tl, Let the 
 advertiscmts of the sd order dated 18 May, 1877, to wind up the 
 sd CO be postponed until the hearing of the appeal from the sd order. 
 And Let the sd shareholders on or before 28 May, 1877, do all necessary 
 acts pursuant to the 31st Chancery Funds Rules, 187-1-, for the ppose of 
 having tlie sd sum transferred by them into Ct to the credit of these 
 matters. Re ilie Paris Blmiing Rbilc Co., Limftl, Li the matter of the 
 Cos Acts 18G2 and 18G7, Hall, V.-C, 23 May, 1877. 840 B. See 
 5 Chancery Division, 950, and si/jjra, Form 34:0. 
 
 Where there is an appeal, the advertisement can be restrained as above. 
 
 Form 670. Upon the applicon of B. and Y. the oflF. liqs., &c., Let the sd appli- 
 Liberty to cants be at libty to take all necessary and proper proceedings by way of 
 appeal. appeal from the order dated, &c., made in the matter of an appeal from 
 
 the High Ct of Justice, Common Pleas Division, in a cause of pit. 
 
 and the sd co deft. Hoojier's Teleijraplt, Worhs, M. R., 14 June, 1877. 
 
 A. 1311. 
 
 For order giving liberty to a cx-editor to appeal against an order made in an 
 action against the company in Ireland, and to use the name of the company, he 
 undertaking to indemnify the company against all costs and to pay 120L into 
 Court by way of secxu-ity, see International Patent Pulp, ^'c, Co., M. E., IG Mar. 
 1877. A. 519. 
 
 Form 671. Upon the applicon of the liq of co and upon reading, etc., and an 
 Order allowin'' order made in the suit of, &c., Avhereby it was ordered that, &c. \_btU 
 liquidator's dismissed], and it was fm-ther ordered that such order should be without 
 appea. p^.gj^j^Upy ^.^ ^.^-^^ applicon the liq of the sd co might make to the judge 
 at chambers for the allowance of the costs of the sd co in the sd suit of 
 out of the assets of the sd co, Order that the costs of the above- 
 named co in the sd suit, &c., and of this applicon and consequent thereon 
 be allowed as costs in the winding up of the above-named co. General 
 South American Co., Malins, A\-C., '.» Mar., 1878. A. 421. See also 
 Form 50G, 
 
 Order stayin 
 winding np. 
 
 Siaijiiiij Uw WirnJimj Up. 
 
 Form 672. AVhas by an order dated 3 Feb., 1877, made upon the peton of J. P. a 
 creditor of co. It was ordered that the sd co should be wound up by the 
 Ct under the provisions of the Cos Acts 18G2 and 18G7, Now upon 
 motion this day made unto this Ct by counsel for li. [_anil others] contribs 
 of the sd CO, This Ct doth order that upon the sd Pt. paying to the 
 creditors of the sd co other than Messrs. P. within 10 days from the date 
 of this order or within such further time as the 3 largest creditors nuiy 
 consent to, lo-s'. in the /. on the amount of their debts and to Messi's. P.
 
 UNCLAIMED DIVIDENDS. 533 
 
 the amount of tlicir debt in full, and the costs in these matters as Form 672. 
 between solor and client, such costs to be taxed, &c., in case the parties ^ 
 
 differ, all further proceedings under the sd order of 3 Feb., 1877, be 
 stayed. ]V//ifea.'<h Paper Co., 17 Mnj, 1S77. B. 1083. See further as 
 to staying the winding-up, " Petitions" and "Arrangements." 
 
 Undaimcd Dicidends. 
 
 Upon the applicon of H., the off" manager of the above-named l)auk, Form 673. 
 and upon hearing the solors for the applicant, and for the official as- Oj.^|g\. ^^ p,^ 
 siguee in bankruptcy, and for the creditor's representative, and upon into court. 
 reading an order dated 8 April, 1878, Order that the sd H. be at libty 
 on or before the 30th of jMay, 1878, to pay into Ct to the credit of Ex 
 imrte the Royal British Bank to an account to be intituled " unclaimed 
 dividends," the sum of 303?. Zs. -id., the amount of unclaimed dividends 
 in these matters, And order that the sd sum of 303?. Q)S. id. when pd in 
 be pd in the sums mentd in the third column of the schedule hto to the 
 persons whose names and addresses are set opposite such sums in the 
 first column of the sd schedule, such sums being the amount of dividends 
 declared upon their respive debts proved in these matters. Schedule 
 giving names, addresses, and amounts. 
 
 Roijal British Banlc, Malins, V.-C, 3 April, 1878. B. 1120. 
 
 Where a company is about to be dissolved, it is very commonly found that 
 certain creditors or contributories, in whose favour dividends have been 
 declared, have not claimed the same. 
 
 The right of such persons is not affected by the non-claim, so as to enable 
 the Court to divide the fund among the other persons interested, or otherwise 
 to deal with the same in derogation of the rights conferred by the order 
 declaring the dividend. Ashley v. Ashley, i C. D. 757. 
 
 Accordingly, the proper course is to pay the amount into Coui-t. See the 
 Supreme Court Rules, 1884, as to the new practice on payment into Court. 
 The money should be paid in to the credit of " In the matter of the Com- 
 panies Acts, 18G2 and 1867, and in the matter of The Company Limited. 
 
 Unclaimed dividends." The paymaster-general will give a receipt for the 
 j)ayment, and the application of the fund will be provided for by the dissolution 
 order. See Form GSO. 
 
 See Australian United Co., W. N. 1877, 37, where upon a reconstruction there 
 were unclaimed shares, and liberty was given to bring them into Court. 
 
 Upon the applicon of B., the off. liq., &c.. Let the sd B. be at libty on Form 674. 
 or before 10 Mar., 1871), to pay into Ct to the credit of " In the matter Order to pay 
 of the L. C. C, Limtd.," 3.j/. 18s. 9d., being the amount due to the unclaimed 
 creditors of co named in the schedule hto in respect of unclaimed divi- j^tQ court, 
 dends. And let out of the sd sum the sums mentd in the fourth column 
 of sd schedule be pd to the persons and cos whose names are set opposite
 
 524 WINDING-UP. 
 
 Form 674. to tlie same in the second column of the same schedule. And usual 
 order to tax off. liq.'s costs, charges, and expenses. London Co-oinratire 
 Commissariat, LimUl, M. E., 21 Jan., 187;j. B. 374. 
 
 DissoUiiion Orders. 
 
 S. Ill of the Act of 1862 provides that when the affairs of the company have 
 been completely wound up, the Court is to make an order that the company be 
 dissolved from the date of siich order, and the company is to be dissolved 
 accordingly. 
 
 And s. 112 i^rovides that any order so made shall be reported by the official 
 liquidator to the registrar [of joint stock companies], who is to make a minute 
 accox'dingly in his books of the dissolution of the company. If the official liqui- 
 dator makes default in so reporting, he becomes liable to a penalty of 5L a day. 
 S. 113 of the Act. 
 
 Where a company is about to be dissolved, the Court may determine in what 
 manner the books, accounts and documents are to be disposed of. See s. 155 of 
 the Act. The file of proceedings and the official liquidator's book of account 
 must Vje sent to the Eecord and Writ Department. Gen. Ord. 1862, r. 67. The 
 other documents are generally directed to be torn up or burnt. 
 
 See Rules (jo &. 66 as to terminating the winding up. According to the latter 
 of these rules, a dissolution order should not be made iintil the chief clerk has 
 certified that the winding up is complete ; but in px'actice the chief clerk very 
 commonly certifies that the affairs of the company have been comi^letely wound 
 up, except as to the application of a specific sum in bank or in the official liqui- 
 dator's hands, and then iipon the aiii^lication of the official liquidator, an order 
 is made as to the application of this siim, vacating the recognisances, dis- 
 charging the liquidator, oi'dering the destruction of the books, and dissolving 
 the company. 
 
 An application to dissolve should be by summons, supi^orted by an affidavit 
 of the official liquidator showing that the winding up has been comjjleted and 
 that he has passed his final account, and stating that in his opinion it is desir- 
 able that the books should be destroyed and the company dissolved. A great 
 many dissolution orders are made every year. 
 
 Form 675. Upon the applicon of the off. liq. of the ahove-named co, and upon 
 j^. hearing the solor for the applicant, and upon reading the orders, &c., 
 
 order. and the chief clerk's certificate, dated 28th January, 1878, wherehy it 
 
 appears that, except as to the applicon of the sum of 'M)l. IG.s-. 6^7. 
 standing to the credit of the sd off. liq. at the Bank of England, the 
 affairs of the sd co have been completely wound up, and an office copy 
 of the recognisance entered into, &c., a certificate of the chief clerk of 
 the Bank of England, dated, A;c. It i,s by consent of the solor of the 
 applicant oiii)Ei!i;i) that the sd sum of oO/. HI.s, i!)d. be pd to the sd off. 
 liq. in full discharge of the amount of his taxed costs and the amount 
 due to him for remuneration. And it is ordered that the books and 
 papers of the sd co, other than the file of proceedings, be destroyed by 
 bcuig torn up and cut in such a manner as to be incapal)le of being used 
 as a means of information : And thereupon it is ordered that the sd off. 
 liq. be discharged, and that the sd recognisance dated, itc, entered
 
 DISSOLUTION ORDERS. kok 
 
 into liy tlie sd off. liq. together Avith and liis sureties be Form 675. 
 
 vacated : And that the sd co Ijc dissolved as tiv^m the Sth day of " 
 
 August, 1878. OnccJl Oi/ster Fislicnj, Limtd., M. E., 8 August, 1878. 
 141)8 P,. 
 
 A form of dissolution order is given in the schedule to tlie Uen. Order of 
 Nov. 18G2, No. 50. 
 
 The following- are a few examples of dissolution orders : 8t. George's Advance 
 Co., 18 July, 1877. B. 1J.25 ; Oporto Mining Co., 20 July, 1877. B. 1187 ; South 
 of France Lime Co., (j Aug. 1877. B. 1179 ; London cf' County, Sfc, Co., 9 Aug. 
 1877. B. 1480 ; Oriental Island Steam Co., 9 Aug. 1877. B. 1489 ; North Hafod 
 Co., 20 Dec. 1877. B. 2178 ; Erimiis Iron, 25 May, 1878. 91. B. ; Ballycammish 
 Co., 18 July, 1878. A. 1573 ; Tavarone Mining Co., 31 July, 1878. B. 1531 ; and 
 see also Forms infra. 
 
 Upon the applioon of J. S., the off. liq., etc.. Let [booJr.s and papers of Form 676. 
 CO to he dpsiroijed'\ and order that out of the sum of oS/. 8.s, ()d. by 'Ynother ^ 
 the chief clerk's certificate certified to be due from the sd ott". li(i. and 
 forming part of (YM. Os. '2d. cash in the bauk to credit of these matters 
 the sum of 'Si. 7s. Od. the agreed amount of the costs of co under the sd 
 
 order dated, &c., l)e pd to ^Messrs. , tlieir solors in full discharge of 
 
 the costs undei' the sd order, and the sum of 33/. 6s. lOd. further pt 
 
 thereof be pd to and , the solors of the sd off. liq., or one 
 
 of them, in full discharge of their costs, charges, and expenses as solors 
 for the sd off. liq., or otherwise in reference to the winding up of the sd 
 CO : And order that the sum of 101. 13s. bd., the balance of the sd sum 
 of 58/. 8.s\ (kh, and also the proceeds to be received from the sd books 
 and papers of the sd co when so cut and torn into fragments as hinbefore 
 directed be retained and pd to the sd off. liq. in full discharge of all 
 claims by him foi- remuneration or otherwise as off. liq. of co : And 
 thereupon order tliat the sd off. liq. be discharged, and that the sd 
 recognisance and the sd bond dated 1.5th December, 1874, entered into 
 
 l)y the sd J. 8. together Avith The Guarantee Association, Limtd., 
 
 as his sureties be vacated : And thereupon order that the sd co be dis- 
 solved as from the 28th June, 1878. Peojyle's Coal, ijr., Co., Limtd., 
 M. R., 2.5 June, 187X. 1533 B. 
 
 Upon, &c. [order for dlssoUdioti of co'], And Let the books, papers, Form 677. 
 and documts of the sd co, other than the file of proceedings, be forth- ^^^.^ books. 
 with destroyed l)y fire. Llanrwst Slate Co., ^L R., 10 ]Mar., 1878. 
 B. 605. 
 
 Upon the applicon of the off. liq., and upon reading an order dated. Form 678. 
 &c., and the chief clerk's certificate dated, &c., and an afft of the sd off. Dhsgolutioo 
 liq. filed, &c., and an office copy of the recognisance, and an office copy where 
 of the joint and several bond hereinafter respively referred to, and it ap- comp^ny^is 
 pearing that the affairs of the sd co have been completely wound up, It surety.
 
 526 
 Form 678. 
 
 Form 679. 
 
 Order for 
 distribution 
 of assets and 
 dissohition. 
 
 AVIXDING-UP. 
 
 is oi'derecl that the sd co be dissolved as from the 2r)fch of May, 1878, 
 and that the recognisance entered into by J. Y. as the oft". Hq. of sd co, 
 
 and the joint and several bond of the sd J. Y. and The ■ Guarantee 
 
 Co, Limtd, dated respively the 15th of October, 1875, and enrolled on 
 the 22nd October, 1875, be vacated. Rio Grande, tjr., Co., Limtd., 
 Bacon, Y.-C, 25 May, 1878. 1113 ?>. 
 
 Upon the applicon of the off. liq., &c., And it appearing by the sd 
 afft of the sd oft", liq. that the whole of the assets received is the sum of 
 21;!/'. lis. ?)d., that there is not any outstanding estate, effects, or ppty 
 of the sd CO, that all the shares subscribed for or taken have been fully 
 l)d-up, and that there is not any sum of money available for distribution 
 among the creditors or persons claiming to be creditors of the sd co, It 
 is ordered that the sd oft". li(|. do out of the sd sum of 213/. lis. M. pay 
 the sum of 45/. 18-s-. 0^., being the amount of the petr's taxed costs 
 under the sd order dated G ]\Iar., 1877, to ]\Iessrs. \. & V., the solors of 
 the sd petrs, And it is ordered that the sd off. liq. do also pay to the sd 
 Messrs. Y. & Y., his solors, the sum of 122/. 135. 3^/. in satisfon and 
 discharge of their costs in the winding up of the sd co fi'om the date of 
 the appointmt of the sd off. liq. to the dissolution of the sd co as 
 certified at the sum of 128/, 3s. Of/., and be at libty to retain the sum of 
 45/., balance of the sd sum of 213/. lis. 3d., after paying the sd sum of 
 45/. 1H.V. and 122/. I'ds. Sd. in discharge and satisfon of his charges 
 and expenses in the winding up of the sd co, and thereupon It is ordered 
 that the sd co be dissolved as from the 10th of July, 1877, and that the 
 sd recognizance be vacated. Banwifs Patent Asjduilie Pavimj Co., 
 Bacon, \.-Q., in July, 1877. 
 
 Such orders are very common. See another, Von United Mining Co., 25 May 
 1878. A. 1049. 
 
 Form 680. 
 
 Dissohition 
 order, and 
 directions as 
 to unclaimed 
 dividends. 
 
 Updii the applicon of H., the off', liq. of co, and upon hearing the 
 solors of the sd off. liq., and for W. F., the creditors' representative 
 and upon reading the order dated, &c., the Chancery Pay Office receipt 
 dated 15 Ap., 187G, for the sum of 31/. 13.s. hereinafter mentd, the 
 afft, &c., and the chief clerk's certificate dated the 18th July, 1877, 
 whereby it appears that the sd off. liq. has passed his final account, and 
 that there was no balance due to or from him, and that the affiiirs of the 
 sd CO haA'e been completely wound up, and the certificate of the fund : 
 It is ordered [dissolve co., liJ)tij to destroy booJcs, ^-c]. And it is ordered 
 that the sd sum of 31/. Ids. on deposit in Ct to the credit of '" In the 
 matter of the Cos Act, 18G2, and in the matter of the N. Co., Limtd, 
 unclaimed diA'idL'nds'' hv pd in the several amounts mentd in the sixth 
 column of the schedule hto to tlie se\eral persons mentd in the second 
 colunm of such schedule in satisfon of the unclaimed dividends due to 
 them as creditors of the sd co. Northjleld Iron and Slerl Co., M. \l., 28 
 Julv, 1877. B. 2700.
 
 VOLUNTARY. 527 
 
 Upon the peton of co, &c., Order that co's name be restored to the Form 680a. 
 
 register of Joint Stock Companies, and that this co be deemed to have con- Order to 
 
 tinned in existence as if its name had never been struck ott" ; and let restore com- 
 
 pany s name 
 notice of this order ])e advertised once m the London (rasctto ; and let to register 
 
 off. Hq. pay the Iicgistrar of Joint Stock Companies his costs of the ""j|^'' ■'^c* ''^ 
 
 applicon, to be taxed ; and let costs of petrs, including costs pd to 
 
 Eegistrar, be taxed and pd out of co's assets. Estates Invesfmenf Co., 
 
 Chitty, J., 2:5 June, 188:3. 
 
 As to strikiiij>" names of defunct companies off tlie register, and their restora- 
 tion, see the C'omi>anies Act, ISSO. Re Financial Corporation, 27 S. J. 199 ; Re 
 Estates Investment Co., 27 S. J. 585. 
 
 VOLUNTARY WINDING-UP. 
 
 The Co, Linitd. Form 681. 
 
 Notice is hljy gi\en that an extraordinary general meeting of The Notice of first 
 
 Co, Limtd, Anil be held at , on day the day of , meeting to pass 
 
 at o'clock in the [afler]noon, for the ppose of considering, and if tfon°to ^\iiiV' 
 
 thought fit, [lassing the following resolution, that is to say : "That the up. 
 CO be wouiul up voluntarily under the provisions of the Cos Acts, 18G2 
 
 and LsCT, [and that A. of be and he is hby appointed liq for the 
 
 pposes of such winding up]." 
 
 Dated, e^-c. 
 
 By order of the Board, 
 
 No. St.. &c. , Secretary. 
 
 Section 129 of the Act of lfS(j2, provides as follows : — 
 
 " 129. A company under this Act may be wound up voluntarily, 
 
 1. Whenever the period, if any, fixed for the duration of the company by the 
 
 Articles of Association expires, or whenever the event, if any, occurs, 
 upon the occurrence of which it is provided by the Articles of Associa- 
 tion that the company is to be dissolved, and the company in general 
 meeting has passed a resolution requiring the company to be wound up 
 voluntarily : 
 
 2. Whenever the company has passed a special resolution requiring the 
 
 company to be wound up voluntarily : 
 
 3. Whenever the company has passed an extraordinary resolution to the 
 
 effect that it has been proved to theii* satisfaction that the comijany 
 cannot hv reason of its liabilities continue its business, and that it is 
 advisaljle to wind up the same. 
 For the piu-poses of this Act, any resolution shall be deemed to be extra- 
 ordinary wliich is passed in such manner as would, if it had been confirmed 
 by a subseqvient meeting, have constituted a special resolution as hereinbefore 
 defined." 
 
 Companies are i-arelj- or never wound up in pursuance of paragraph 1 of the
 
 528 
 
 WINDING-Ur. 
 
 Form 681. above section, and accordingly voluntary winding- up is usually determined on 
 by special or extraordinary resolution. Where a company is in difficulties, and 
 pressed by its creditors, an extraordinary resolution to wind up is generally 
 passed, for that is the quickest mode of bringing about a voluntary winding up : 
 in other cases a special resolution [^swpra, p. 193] is usually passed. 
 
 Although this enactment apjDears to contemplate the ap]3ointment of the 
 liquidators after the passing of the special or extraordinary resolution for 
 winding up, there is no objection, in the case of a special resolution, to an 
 appointment of the liquidators (as in the above form) at the first meeting, 
 followed by a confirmation of the resolution at the second meeting. London Sf 
 Australian Agency, W. N. 1873, 198 ; 2:i W. R. 15 ; Petersburg Gas Co., 33 L. T. 
 637. And this course is freqiiently adopted. Where, however, the resolution 
 passed at the first meeting does not purport to apjDoint liqxiidators, they are 
 usually appointed at the second meeting immediately after the confirmation of 
 the special resolution. Liquidators may be appointed at the second meeting, 
 in the case of a special resolution, and at the only meeting, in the case of an 
 extraordinary resolution, without notice having been given of the intention 
 to propose a resolution for their appointment. Oohes v. Turqnand, L. E. 2 H. 
 L. 325. 
 
 But it is usual to mention the matter in the notice ; and very commonly 
 the notice states the names of the persons to be proposed for appointment. 
 Sometimes, in the case of a special resolution, nothing is said about liquidators 
 in the notice convening the first meeting, but the notice convening the second 
 meeting contains a statement as to their appointment, as in Form G82. 
 
 Where there is a special resolution an appointment at the first meeting is 
 ineffectual unless confirmed at second. Re Indian Zoedone, W. N. 188-1, 50. 
 
 Sometimes both meetings are convened by one notice. See supra, p. 213. 
 
 Form 682. The 
 
 Co, Liintd. 
 
 Notice, &c. [«s i?i Form G81 to 
 L which 
 day of 
 
 noon '"], ^vheii the subjoined 
 
 ' meeting of the co, held 
 
 confinnation as a special 
 
 Notice of 
 
 .second meeting resolution wliich was passed at the extraordinary meeting of the co, held 
 
 %::!^Zoln. the day of , will he submitted f >r 
 
 tion to wind resolution : "That," &c. [set out fJ/p rpmhdion']. 
 lip. 
 
 If the resolution does not purpoi-t to ajjpoint liquidators, add : 
 
 Should the resolution be confirmed a further resolution will l)e pro- 
 posed at the same meeting for the appointmt of a liq or liqs \_or for the 
 appointmt of A. and B. to be liqs] for the ]iposes of such winding up 
 [and fixing his or their remuneration]. 
 
 Dated, &c. 
 
 By order of the Board, 
 
 No. — St., &c. , Srrrotari/. 
 
 In most cases the remuneration of the liquidators is not determined at the 
 time of their appointment, but it is by no means uncommon to determine it 
 then. See infra. Form 700. 
 
 Form 683. Tl^e 
 
 (U^, Limtd. 
 
 Notice, &c. [as in Form 081 down la 
 
 noon "], for the ppose 
 
 Notice of meet- 
 ing to pass of considering, and if deemed expedient passing, the following extra-
 
 VOLUNTARY. 529 
 
 ordinary resolution, that is to say : "That it has been proved to the Form 683. 
 satisfon of this meeting that the co cannot by reason of its Habilities extraordinary 
 continue its business, and that it is ad^dsable to wind up the same, and resolution to 
 accordingly that the co be wound up voluntarily." 
 
 Should the resolution, &c. [as in Form 578]. 
 
 Dated, &c. 
 
 By order of the Board, 
 
 No. St., &c. , Secretary. 
 
 It ia essential to the validity of an extraordinary resolution for winding up 
 that the notice convening the meeting should give the members notice, ex- 
 pressly or impliedly, that the resolution will take effect under s. 129, sub-sect. 3, 
 and consequently will not require confirmation at a second meeting. In re 
 Bridport Co., 2 Ch. 194 ; In re Silkstone Co., 1 C. D. 38. Accordingly, some 
 persons insert in the notice a statement that " the above resolution is intended 
 to take effect under sub-sect. 3 of section 129 of the Companies Act, 1862," or 
 other words to that effect. But a notice framed as in Form 579 is sufficient. 
 Stone V. City 4" County Banlc, 3 C. P. D. 282. More companies are wound up 
 by extraordinary than by special resolution : it is speedier. 
 
 In the matter, &c. Form 684. 
 
 At an extraordinary general meeting of the above-named co, duly con- Notice for 
 vened and held at , on the day of , the following special Gc-cffr of 
 
 . '' T 1 special resolu- 
 
 resolution was duly passed, and at a subsequent extraordinary general tion to wind 
 meeting of the members of the sd co also duly convened and held at the ^P- 
 same place, on, &c., the following resolution was duly confii*med, viz. : — 
 That, &c. [set 'it ont~\. 
 
 \_If tlie rcsotution does not ^wrjwrf to appoint liqs, add .'I And at such 
 
 last-mentd meeting of was appointed liq for the pposes of the 
 
 winding up. 
 
 Dated, &c. 
 
 , Chairman. 
 
 Notice of any special or extraordinary resolution for winding up must be 
 given in the London Gazette as respects companies registered in England. 
 &. 132 of the Act. 
 
 Note : — As a general rule where the witness to a signature is a solicitor 
 whose name appears in the current Law List, no further evidence or insertion 
 is required ; but the Gazette officials reserve the right of calling for a declaration 
 in any case where they may deem it necessary. 
 
 In the case of an extraordinary resolution, the notice for the Gazette will be 
 as follows : — 
 
 In the matter, &c. Form 685 
 
 At an extraordinary general meeting of the members of the above- 
 
 111 111,1 1 1 Notice for 
 
 named co, duly convened and held at , on the day ot . , Ga~cUc of 
 
 the following extraordinary resolution was duly passed : — extraordmary 
 
 M M
 
 530 WINDING-UP. 
 
 Form 685. That it has been proved, &c., and at the same meeting of 
 
 was appointed liq for the pposes of such winding up. 
 
 resolution to 
 wind up. 
 
 Dated this 
 
 day of 
 
 Chairman. 
 
 The notice for insertion in the Gazette must be signed by the chairman of 
 the meeting at which the special resolution was confirmed, or at which the 
 extraordinary resolution was passed, as the case may be. His signature must 
 be attested by a witness [see note p. 529] , and there must be a duplicate attested 
 and verified by the statutory declaration of a director, secretary, or member 
 of the company who was present at the meetings or meeting, as the case 
 may be. 
 
 As regards a special resolution, the declaration should run as follows : — 
 
 I ) of , do solemnly and sincerely declare as follows : — (1.) That 
 
 extraordinary general meetings of the Company, Limited, were duly held 
 
 on the day of , and day of , at ; (2.) That the resolu- 
 tion mentioned in the annexed notice marked A. was duly passed at the first . 
 
 of such meetings, and confirmed at the second meeting; (3.) That was 
 
 duly appointed chairman of the second meeting ; (4.) That I was present, 
 and saw the said sign the said notice hereto annexed, and that the signa- 
 ture, set and subscribed to the said notice, is of his proper handwriting. And I 
 make this solemn declaration conscientiously believing the same to be true, 
 and by virtue of the provisions of the Statutory Declarations Act, 1835. 
 
 (Signed) 
 
 Declared and subscribed this 1 
 
 day of . Before me, &c. J 
 
 As regards an extraordinary resolution, the declaration should state: (1) 
 
 That an extraordinary general meeting of the company was held on the 
 
 day of at ; (2) That the resolution mentioned in the annexed notice 
 
 marked A. was duly passed at such meeting ; (3) That was duly appointed 
 
 chairman of the said meeting ; (4) As in the preceding case. 
 
 Form 686. The 
 
 Co, Limtd. 
 
 \_iSee supra, p. 21G.] 
 
 Notice to 
 Registrar of 
 
 special resolu- Notice of the passing of a special resolution to wind-up must also be given to 
 
 ^,p the Registrar of Joint Stock Companies, by filing with him a printed copy. 
 
 See swpra, p. 21G. And it is desirable to send him a copy of any extraordinary 
 
 resolution for windint 
 
 up. 
 
 Form 687. 
 
 Notice to 
 contributories. 
 
 Contrihs. 
 
 In the matter of the Cos Act, I8G2. 
 
 And in tlie matter of The Co, Limtd. 
 
 Take notice that A. B., the liq of the above-named co, has appointed 
 
 the day of , at o'clock in the [forejnoon at his office, 
 
 [No. Street, in the City of London] to settle the list of contribu- 
 tories of the above-named co which has already been made out by him, 
 and that you are included in such list in the character and for the 
 number of shares stated below ; and that if no sufficient cause is shown
 
 VOLUNTAEY. 531 
 
 by you to the contrary at the time and place afsd, the list will l)e settled Form 687. 
 by the sd liq including yon therein. 
 
 Dated the day of . 
 
 A. , Liquidalor. 
 
 To Mr. . 
 
 The Schedule [rts in Form 20 in Sdiedule to Rules']. 
 
 Under s. 133 of the Act the liqiiidator has power to settle the list of con- 
 tributories; and any list so settled is to be prhna facie evidence of the liability 
 of the persons named therein to be contributories. The form of the list should 
 be similar to that used in a compulsory winding up. See Form 25 in Schedule 
 to Rules. It can be intituled, " In the matter, &c. [as above], list of con- 
 tributories of the above-named company." It is usual to fix a day for settling 
 the list, and to give notice thereof to the contribxitories, as in Form 687 ; but 
 it is not essential so to do. Brighton Arcade Co. v. Dowling, L. K. 3 C P. 175, 
 187 ; London Bank of Scotland, W. N. 1867, 114). 
 
 At the time fixed by the notice, the liquidator will proceed to settle the list, 
 taking notice of any objections then or theretofore made. Any doubtfvil cases 
 can be adjourned for fviither consideration. As to who should be on the list, 
 see s. 38 of the Act, and Buckley, 128 et seq. ; Lindley, 1327 et seq. When 
 the list has been settled altogether or in part, the liquidator very commonly 
 signs a certificate, following as nearly as may be Form 31 in the Schedule to 
 Kules. 
 
 A contributory who objects to his name being placed on the list can apply 
 to the Court to rectify the register of members, or the list of contributories, 
 or both, or he may wait till a call is made on him, and proceedings taken to 
 enforce the same, and then resist. 
 
 If there are many disputed cases, the liquidator sometimes applies to the 
 Coiu't to settle the list, or applies as regards the cases in dispute. In the 
 former case the liquidator takes out a summons that the list of contributories 
 of the company may be settled by the Court, and that all proper inquiries may 
 lie made, and directions given for that purpose, and the subsequent proceedings 
 will be similar to those in a compulsory winding up, srqrra. Form 494-, et seq. 
 
 If the dispute is only as to a single person or a few persons, the summons 
 will be "that it may be determined whether A. B. is or is not a contributory," 
 or " that it may be declared that the liquidator of the above-named company 
 
 is entitled to settle A. B. of upon the list of contributories of the company 
 
 in respect of shares of 1, each, nvmibered to both inclusive, 
 
 and upon each of which shares the sum of 1, and no more has been paid 
 
 tip." 
 
 However, in most cases, the liquidator settles the person disputing on the 
 list, and leaves him to litigate the matter by applying to the Court, or by 
 resisting proceedings to enforce a call. 
 
 Applications by contributories to have their names removed from the list are 
 common ; they are usually made by motion or summons. 
 
 Call. 
 
 Ill the matter, &c. ^^^^ ggg 
 
 I, the undersigned of , the liq of the above-named co, do 
 
 liby make a call of I. per share upon all the contribs of the sd 
 
 CO [or upon the several persons named in the second column of the 
 schedule hto, being respively contribs of the sd co in respect of the 
 number of shares set opposite their names respively in the same schedule 
 Dated, &c. Schedule as in Form 687. 
 
 M M 2
 
 532 
 
 WINDING-UP. 
 
 Form 688. The list of contriTmtories having been settled wholly or in part, the liquidator 
 
 ' — ~ " will from time to time make calls on the contributories under sub-sect. 9 of 
 
 s. 133 of the Act. It is not necessary to give any notice of the intention to 
 make a call, though it is sometimes done. The liquidator should make the 
 call by an instrument in writing, which can be as in Form 689. 
 
 The call having been made, the liquidator will give notice thereof to the 
 contributories. Such notice may be as follows : — 
 
 Form 689. 
 
 Notice of call. 
 
 I/i fJtr matter of, &c. 
 
 Take notice that on the day of , I, the nndersigned y 
 
 of , the liq of the above-named co, make a call of 1, per share 
 
 upon all the contribs of the above-named co [or as the case may be]^ 
 and that the amount due from you in respect of the call so made is 
 
 the sum of /., which sum you are hby required to pay to me at 
 
 my office situate, &c., on or ])efore the day of next. In 
 
 default of paymt, interest at the rate of — p. c. p. a. will be charged 
 upon the amount unpaid. 
 
 Dated, &c. 
 
 A. B., Liq. 
 
 To W. , of 
 
 Summons or 
 notice of 
 motion to 
 enforce calls 
 
 If the call is not duly paid, the liquidator will, if necessary, take proceedings 
 to enforce payment. 
 
 Form 690. Upon the hearing- of an applicon on the pt of A. B., the hq of the 
 above-named co, that the several persons named in the second column 
 of the schedule hto, being respively contribs of the sd co, may 
 be ordered to pay to the sd A. B. as such liq as afsd at his office 
 
 situate at , within four days after service upon them respively of 
 
 the order to l)e made hereon, the several sums of money set opposite 
 to their respive names in the seventh column of the schedule hto, being 
 the amounts due from the sd several persons respively in respect of a 
 
 call of 1, per share made by the sd A. B. as such liq as afsd on 
 
 the day of , And that the sd several persons may be ordered 
 
 to pay the costs of this applicon. \_ScJic(h(le, see Form G74.] 
 
 Calls made in a voluntary winding-up can be enforced by action brought by 
 the liquidator, in the name of the company, against the contributories, or by 
 proceeding under s. 138 of the Act of 1862. The latter is the best course, and 
 is generally adopted. In re Whitehouse 4" Co., 9 C. D. 595. 
 
 The application should be by motion or summons. See infra. Forms 693,694. 
 
 Form 691. Ui)()n the applicon of E., the liq of co, by summons dated 2 June, 
 Order enforcing 1877, and upon reading, &c., Lot the several persons named in the 
 call matie hy second column of the schedule to this order, being contril)S of 
 sd CO, on or before 20 July, 1877, or within four days after ser-sice of 
 this order, pay to E. the liq of sd co, at his office, No. — , &c., the 
 several sums set opposite their respive names in the sixth column of 
 the sd schedule hto : such sums being the amounts due from the sd 
 
 liquiilator.
 
 VOLUNTAEY. 
 
 533 
 
 several persons respively in respect of a call of 21. 10s. 0^. per share Form 691. 
 made by tlie scl liq. And also let the sd and , respively each 
 
 pay to the sd E. the sum of one guinea costs. 
 (592.] Sheffield Purchasers Co., Malins, V.C., 2 
 See also Forms (;02 and G93 infra. 
 
 [Schedule as in Form 
 July, 1877. B. 1185. 
 
 Orders under S. 101. 
 
 Orders are frequently made under s. 101 [siq^ra, p. 467], on the application 
 of the liquidator for the payment of monies due in respect of calls made prior 
 to the Avinding up, or other monies owing by the contributories. Not uncom- 
 monly the order includes calls made before and after the commencement of the 
 winding up. See Form 093. As to set-off, see Whitehouse ^ Co., 9 C. D. 595 j 
 Gill's case, 12 C. D. 755 ; Colorado Mines, 75 L. T. 145. 
 
 Upon the applicon of B. the liq of the above-named co, and no Form 692. 
 
 one appearing for the several persons nientd in the 2nd column of Order to pay 
 the schedule hto although duly summoned as appears by the aff't of '^^^^'^ '"'^^^.« 
 P. filed IG Jan., 1877, and upon reading, &c.. Let the several persons up. 
 named in the 1st column of the sd schedule being respively contribs 
 of the sd CO, within four days after ser^•ice of this order on them 
 respively, pay to the sd B., the liq of the sd co, at the office of jMessrs. 
 W. & Co., situate, &c., the sums of money set opposite their respive 
 names in the 8th column of the sd schedule, such simis beino; the 
 amounts due from the sd several persons respively in respect of the calls 
 of (js. per share made on ]0 July, 187o, and of 4.s. per share made on 
 31 October, 1876, as meutd in the 5th and Gtli columns of the sd 
 schedule, together with interest thereon at the rate of 5 p. c. p. a. in 
 respect of the 1st call fi-om 10 July, 1873, and in respect of tlie 2nd 
 call from 31 Oct., 187G, respively to the day of paymt, and for the costs 
 of this applicon and consequent thereon (which have l)ecu ascertained in 
 chambers) as mentd in the 7th column of the sd schedule. 
 
 The Schedule above referred to. 
 
 
 
 
 
 Amount due 
 
 Amount due 
 
 Amount of 
 
 
 
 
 
 
 for call 
 
 for call 
 
 costs of 
 
 Total 
 amount 
 liayable. 
 
 Xo. on 
 list. 
 
 Kaiiu;. 
 
 Adilress. 
 
 Xo (if 
 
 shares. 
 
 payal)le 10 
 July, 1S73, 
 
 ]iayable 
 31 Oct. 1876, 
 
 application 
 as ascer- 
 
 
 
 
 
 at tis. per 
 
 at 4s. ijer 
 
 tained in 
 
 
 
 
 
 share. 
 
 share. 
 
 chambers. 
 
 
 
 
 
 
 £ 8. (1. 
 
 £ .. </. 
 
 £ ,>;. (/. 
 
 £ s. d. 
 
 1 
 
 A. B. 
 
 — 
 
 10 
 
 3 
 
 2 
 
 1 10 
 
 5 4 10 
 
 37 
 
 C. D. 
 
 — 
 
 50 
 
 15 
 
 10 
 
 14 5 
 
 26 4 5 
 
 53 
 
 E. F. 
 
 - 
 
 150 
 
 •45 
 
 30 
 
 3 10 2 
 
 78 10 2 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 &c. 
 
 British Marine Insurance Co., Malins, V.-C, 17 Jan. 1877. A. 105.
 
 584 
 
 WIXDING-UP. 
 
 Another. 
 
 Form 693. Upon the applicon of L., the liq appointed in the vohmtaiy wincling- 
 ~ up of the above co, and upon liearing the solors for the appUcant and 
 
 for J. H. and T. F., and upon reading an afft, &c., and an aift of , 
 
 tiled 7 Dec. 1878, of service of notice of this applicon : Let the several 
 persons named in the 2nd column of the schedule to this order, being- 
 respively coutribs of the sd co, pay to the sd L, as such liq as afsd, at 
 
 the office of Mr. his solor at , on or before the 23rd day of 
 
 Dec. 1878, or subsequently within 4 days after service upon them 
 respi^'ely of this order the several sums of money set opposite to their 
 respive names in the 8th column of the schedule hto, such sums being- 
 the amounts due from the sd several persons named in the 2nd column of 
 the sd schedule in respect of calls made uiwn the members of the sd co 
 previously to the commencement of the •\vinding-up thereof, and of a call 
 of OcS. per share made by the sd'L., as such liq as afsd, on the 2Gth of 
 April, 1878 : And it is ordered that each of the sd several persons do 
 also i^ay to the sd L., as such liq as afsd, at the time and place afsd, a 
 further sum of 8s. Sd. for his or her proportion of the costs of this 
 applicon. 
 
 Schedule. 
 
 Serial 
 
 No. on 
 
 list. 
 
 Name. 
 
 Address. 
 
 Description. 
 
 In wliat 
 cliaracter 
 included. 
 
 No. of 
 shares. 
 
 Amount of 
 
 (•nil made l.y 
 
 li(luiil:itor 
 
 on L'T Aiiril, 
 
 LSTJS. 
 
 Amount 
 due in 
 
 resjieet of 
 calls made 
 lireviou.sly 
 to winding 
 
 Total 
 
 amount 
 
 due. 
 
 
 
 
 
 
 
 
 
 Wedneshury Newsjiajm- Co., M. R., 1) Dec. 1878. 22r)5 B. 
 
 Rosfraiiving and siaying actions, Ac. 
 
 Formal parts : see infra, Form 707. 
 
 — of , the liq acting in the voluntary winding-up 
 
 of the above-named co, that of may be restrained from further 
 
 Form 694. ^>ii the j^t of 
 
 Notice of 
 
 motion to re- proceeding with tlie distress levied l)y him on the goods of the sd co, and 
 
 .strain distress, f^.^^j^^ levying any other distress on the goods of the sd co in respect of 
 
 any rent whicli accrued due to him from the sd co before the day 
 
 of : And tliat the sd may l)e ordered to pay the costs of this 
 
 applicon. 
 
 Where a compulsory or siipervision order has been made, no action or pro- 
 ceeding can be proceeded with or commenced against the company except with
 
 VOLUNTARY. 
 
 5:35 
 
 the leave of the court. See section 87 of the Act, supra, Form 49^. But this Form 694. 
 section does not Jipply to a purely voluntary winding up. ■ 
 
 However, it was well settled before the Judicatux-e Act, 1873, that where a 
 voluntary winding- up was in progress the court would in general, under sec- 
 tions 138 and 85 of the Act of 18G2, restrain actions and proceedings against 
 the company, the plaintiff being permitted to add his costs to his debt and 
 jjrove for the amount. In re Poole Firehriclc Co., 17 Eq. 2G8 ; Buckley, 21G. 
 
 And the Judicature Act has not altered the practice except that Avhere the 
 action is pending in the High Court, the application must be to stay further 
 proceedings, and should be made to the Division in which the action or pro- 
 ceeding is pending. See supra, p. 489. Walker v. Banagher Distillery Co., 1 
 Q. B. D. 129; Rose v. Gardden Lodge Co., 3 Q. B. D. 235 ; In re Artistic Colour 
 Co., 14 C. D. 502. AVith the exception aforesaid the ajiplication to restrain 
 should be made to the Chancery Division by motion on notice, see infra. Form 
 707. 
 
 Where the plaintiff has notice of the voluntary winding up, and after an 
 offer to allow him to prove for his debt and costs, proceeds, the court in staying 
 the action may decline to allow him to add to his debt the costs of appearing 
 upon the application to stay. Rose v. Gardden Lodge Co., 3 Q. B. D. 235. 
 
 And where the action is brought after notice of the winding-up, the plaintiff, 
 except in special circumstances, will not be allowed to add the costs to his debt, 
 and may be ordered to pay the costs of the action and of the application to 
 restrain or stay. East Kent Shipping Co., W. L. T. 748 ; Buckley, 192. 
 
 In a voluntary as in a compvilsory winding up certain actions and proceedings 
 (e. g., a foreclosure action) will be allowed to go on, see suprra, p. 195. 
 
 Title : sec svpra, Form G74. Form 695. 
 
 Notice is hby given that the creditors of the above-named co arc re- Notice to 
 
 quired, on or before the day of , to send their names and creditors. 
 
 addresses, and the parlars of their debts or claims, and tlie names and 
 
 addresses of their solors, if any, to A. of ■ , the hq of the sd co, and, 
 
 if so required, by notice in writing from the sd liq, are l)y their solors to 
 come in and prove their sd debts or claims at such time and place as 
 shall be specified in such notice, or in default thereof they will be ex- 
 cluded from the benefit of any distributi(ju made Iiefore such debts are 
 proved. 
 
 Dated this day of . 
 
 B. of . 
 
 iSoJor to the above-named liq. 
 
 Immediately after his appointment the liquidator should advertise for credi- 
 tors as above. Sometimes the notice is signed Vjy the liquidator instead of his 
 solicitor, and in such case the word "undersigned" will be inserted in the 
 notice before the name of the liquidator, and the signature modified accord- 
 ingly. The notice should be advertised two or three times in newspapers 
 circulating in the district where the company's oflBce is sitviate, and in the Gazette. 
 
 The court generally allows about six weeks, and a voluntary liquidator 
 should allow the same. As regards creditors abroad, a longer period is some- 
 times allowed. See 1 C. P. D. 2iG. 
 
 The liquidator will investigate the claims sent in, and ascertain so far as he 
 is able which of the debts and claims are justly due from the company. If he 
 is not satisfied as to any claim, he should either endeavour to effect a compro- 
 mise and get it properly sanctioned [^supra, p. 510], or he can leave the claimant 
 to bring an action, or he can apply to the court to adjudicate on the claim.
 
 536 
 
 WINDING-UP. 
 
 Form 695. The last-mentioned is the course very commonly adopted, and sometimes one 
 ai^plication is made as to several claims. 
 
 Form 696. 
 
 iSuinmons for 
 adjudication 
 of disputed 
 claims. 
 
 On the pt of A. of , the liq of the above-named co, that it may- 
 be determined whether the claim against the sd co of B, of — — [or of 
 the several persons whose names and addresses are set forth in the 2nd 
 and JJrd columns of the schedule hereto] ought or ought not to be 
 allowed by the applicant. 
 
 The proceeding on the summons will be similar to that upon a disputed claim 
 in a compulsory winding up. 
 
 Order for 
 inquiry as to 
 creditors of 
 company. 
 
 Form 697. Upon the applicon of liqs of the above-named co hj summons, dated 
 19th March, 1873, and upon hearing the solor for the liqs and reading 
 the afft of C, jfiled, &c, : Let an inquiry be made what are the debts of 
 the sd CO, and the sd judge doth hby fix the 1st of September, 1873, as 
 the day on or before which the creditors of the sd co are to send their 
 names and addresses and the parlars of their debts or claims and the 
 
 names and addresses of their solors (if any) to Mr. 8. of , London, 
 
 the solor for the sd liqs of the sd co, and let such creditors, if so re- 
 quired by notice in writing from the sd liqs by their solors, come in and 
 prove their sd debts or claims at the chambers of the sd judge at such 
 time as shall be specified in such notice ; and order that in default 
 thereof such creditors be excluded from the benefit of any distribu- 
 tion made before such debts are proved : And order that for the ppose 
 of carrying out this order such advertisemts be forthwith issued in such 
 newspapers as the judge shall direct. Edij)se Gold Milling Co., Limtd, 
 Malins, V.-C, 27 Mar. 1873. 3038 A. 
 
 In some cases, e. g., where there is likely to be a large number of disputed 
 claims, it is considered desirable to obtain an order as above. See also Forms 
 693 and 691. 
 
 By this means the liquidator is relieved from much responsibility, and the 
 winding up may be expedited. The proceedings on such an order will be 
 similar to those in a compulsory winding up, and when the chief clerk has made 
 his certificate, the liquidator can declare and pay dividends and proceed with, 
 the winding up either with or without further aj^plication to the court. 
 
 Form 698. In the matter, <tr. 
 
 DeclarationTof^ I, of , the liq of the above-named co, do hby declare a 
 
 dividend. dividend at the rate of shillings in the pound upon the amount of 
 
 the respive debts of the creditors of the sd co whose names and the 
 amount of whose debts are set forth in the schedule hto. 
 
 Dated, &c. , Li(j. 
 
 Schedule. 
 
 When the liquidator has in hand sufficient funds, and the list of debts and 
 claims has been settled or nearly settled, he will declare a dividend to be paid 
 to the creditors whose claims have been allowed. In determining the amount, 
 he will see that he retains funds or assets sufficient to cover all probable costs 
 and expenses of the winding up, and to pay a like dividend on all outstanding
 
 freeholds. 
 
 VOLUNTAEY. 537 
 
 claims. The liquidator will declare the dividend by instrument in writing, Form 698. 
 which may be as above. 
 
 Sometimes the liquidator obtains the sanction of the court to his declaring a 
 dividend. 
 
 A dividend having been declared, notice will be given to the creditors and 
 payment made accordingly. 
 
 Sales hy Liquidator. 
 
 The liquidator has power, under section 133 (7) and section 95 of the Act, to 
 sell the property of the company. Great care should be taken in preparing the 
 conditions of sale, and a reserved price should be fixed. Applications to the 
 couit to sanction sales are not uncommon. 
 
 If thought desirable in any case, an order can be obtained for sale, with the 
 appi'oval of the judge, in which case the sale will be carried out by the court. 
 See supra, p. 451. 
 
 Conveyances hy Liqaidatur. 
 
 THIS INDEE made the day of , 18.so, between The A. rorm 699. 
 
 Co, Limtd (hereinafter called the co) of the first pt, B., the liq of the Conveyance of 
 
 CO, of the second pt, and C. of , of the third pt. Whas by special 
 
 resokition of the co duly passed and confirmed at exti'aordinary general 
 
 meetings of the members thereof held respi^'ely on. the day of 
 
 and the day of , it was resolved that the co should be wound 
 
 up voluntarily, and that that the sd B. should be and he was thereby 
 appointed liq for the pposes of such winding-up ; Axd whas the co is 
 seised of the hereds hereinafter described and intended to be hby assured 
 for an estate of inheritance in fee simple in possession fi'ee from incum- 
 brances ; AxD WHAS the sd B., as such liq as afsd, hath agreed with 
 the sd C. for the sale to him of the sd hereds at the price of /. : 
 
 NOW THIS INDEE WITNESSETH that in psuance of the sd 
 
 agreemt, and in conson of the sum of 1, upon the execution hereof 
 
 pd by the sd C. to the sd B. as such liq as afsd (the receipt whereof the 
 sd B., as such liq, doth hby acknowledge), the co, by the direction of the 
 sd B. as such liq, doth hby grant unto the sd C, his heirs and assigns ; 
 All and singular [ parcels^ : To Hold the same unto and to the use of 
 the sd C, his heirs and assigns ; And the sd B. doth hby [usi'al covenant 
 against incumbrances^ . 
 
 In witness whereof the sd B., as such liq as afsd, hath caused the 
 common seal of the co to be hereunto affixed, and the other parties hto 
 have hereunto set their hands and seals the day and year first above 
 written. 
 
 The common seal of the A. Company, Limited, was affixed 
 
 hereto by C, Kquidator. (L.S.) 
 
 Signed, sealed, and delivered by the said B., in the pre- 
 sence of 
 
 B. () 
 
 C. () 
 
 Signed, sealed, and delivered by the said C, in the pre- 
 sence of
 
 538 tvt:nding-up. 
 
 Porm 699. Tho company's property does not vest in the liquidator, and according-ly'as- 
 
 surances should be made in the company's name. See section 133 (7) and section 
 
 95 of the Act. Some persons make the company grant or assign, and the liqui- 
 dator " confirm/' but there is no need to do this. The liquidator usually cove- 
 nants against incumbrances. 
 
 It is not usual for a company which is being wound up to give covenants for 
 title, and conditions of sale generally stipulate that no covenant shall be re- 
 quired except the liquidator's covenant against incumbrances. 
 
 Compromises. 
 
 Section IGO of the Act empowers the liquidator, with the sanction of an ex- 
 traordinary resolution, \_supra. Form G30] to make compromises. And he can 
 call the requisite meeting under section 139 of the Act. But in many 
 cases it is considered preferable to apply for the sanction of the court, under 
 sections 138, IGO, especially where it is desired to compromise with a contribu- 
 tory. Where a compromise is proposed, the liqviidator sometimes (1) makes a 
 provisional agreement for compromise, and then calls a meeting or applies to 
 the court to sanction the same ; or (2) calls a meeting or applies to the court 
 to sanction a compromise upon terms specified or referred to in the notice or 
 summons, and after obtaining the requisite sanction enters into the agreement. 
 If the court is asked to sanction a compromise, evidence that the compromise is 
 beneficial must be forthcoming. Supra, Form G30, et seq. 
 
 In the case of a compromise with a contributory, the liquidator, after taking 
 out the summons for liberty to compromise, generally requires the contributory 
 to make an affidavit as to his means {sujira. Form 628), and if necessary cross- 
 examines him on it. Form 631. 
 
 Resolutions. 
 
 Remimeration of Liquidator. 
 
 Form 700. That the remuneration of the sd Kq for his services in the winding-up 
 be fixed at the sum of [lUO]/. 
 
 Or at the sum of /. per annum, or at the sum of [two] guineas 
 
 per day of eight hours for his own time and one guinea per day of eight 
 liours for his clerk's time, or at a sum equal to two p. c. of the amount 
 of the assets divided among the unsecured creditors and members of 
 the CO. 
 
 That the remuneration of the sd Hqs be pd at two guineas each for 
 every day occupied by them in the winding up, together with all costs, 
 cliarges, and expenses incurred by them in and about such winding up. 
 
 Form 701. That the liq shall be remunerated for the service of himself and liis 
 clerks in accordance with the scale usually adopted by the High Ct of 
 Justice in fixing the remuneration of off. liqs. 
 
 By sub-s. (3) of s. 133 of the Act of 1862, the company, in general meeting, 
 is empowered to fix the remuneration of the liquidators. See also s. 141, infra, 
 note to Form 703, as to the priority given thereto. 
 
 Sometimes, as already mentioned \_supra. Form GG9], the remuneration is 
 fixed at the meeting at which the liquidators are appointed, and the above are 
 examples of resolutions so passed. But in many cases the remuneration is not 
 fixed until some subsequent period, ejj., at one of the annual meetings or at the 
 final meetinsj.
 
 YOLUNTAEY. 539 
 
 There are advantages in fixing the remuneration upon the appointment of Form 701. 
 the liquidators, because the rights of the liquidators are thereby clearly deter- 
 mined, but it must be borne in mind that if a high rate is fixed in the case of 
 an insolvent company, creditors will have cause to complain. 
 
 By the joint effect of ss. 138 and 93 of the Act, the Court, if ajiplied to, can fix 
 the remuneration of the liquidator, and applications for this purpose are not 
 uncommonly made. All questions as to the propriety of the amount are thereby 
 avoided, and in the case of an insolvent company this course seems peciiliarly 
 desirable. 
 
 The following is an example of an order : 
 
 Upon the peton of H. of, &o., and J. of, &c., preferred unto this Ct Form 702. 
 and upon hearing counsel for the petrs and for the respondents and Order as to 
 upon reading the sd peton, By consent order that, without prejudice to remuneration 
 any question, it be refeiTed to chaml^ers to tix the amount of remunera- 
 tion proper to he allowed and jjd to S., C, and H. the present liqs of the 
 sd CO, And order that it be referred to the taxing master to tax the bill 
 of costs of ^lessrs. L. & L. the solors of the respondents, delivered to the 
 sd liqs of and relating to the Avinding up of the sd co, And order that 
 the rest of the sd peton do stand over. Londoii Pa2)er, t£r, Co., Malins, 
 V.-C, 1 Feb., 1878. B. 311. 
 
 Formal j^mrts : see infra, Form 7(t8. 
 
 On the pt of the liq of the above-named co that it may be Form 703. 
 
 referred to tlie proper taxing-master to tax as between solor and client Smjimons to 
 the costs, charges, and expenses of the applicant as voluntary liq of the tax costs. 
 
 above-named co since his appointmt on the of up to the 
 
 of . 
 
 S. lU of the Act of 18G2 pi-ovides that "All the costs, charges, and expenses 
 properly incurred in the voluntary winding uj) of a company, including the 
 remuneration of the liquidators, shall be payaVjle out of the assets of the com- 
 pany in priority to all other claims." 
 
 But this section does not give priority over mortgagees and others having 
 specific security on the assets at the commencement of the winding up. except 
 so far as the liquidator's costs are costs of preservation or realisation, of which 
 the mortgagees have had the benefit. Regent's Canal Ironivorks Co., ex parte 
 Grissell, 3 C. D. -±11. 
 
 As the costs of winding up form a first charge, the liquidator can from time 
 to time make i>ayments on account. In most cases the liquidator pays the 
 solicitor's bill without taxation, but he should remember that he may at any 
 time be called on to bring in his account, and if he has overpaid the solicitor, 
 may be held responsible for the difference. Accordingly, in some cases, the 
 solicitor gives the liquidator an undertaking that if he should at any time be 
 disallowed any part of the bill, the amount shall be refunded. Occasionally 
 the parties think it more prudent to get the bill taxed before payment. In 
 order to obtain taxation, a summons should be taken out under s. 138 of the 
 Act as above. The liquidator is not personally responsible to his solicitor for 
 the costs of the winding up. Trueman's Estate, 14 Eq. 278 ; In re Massey, 9 Eq. 
 307, SKirra, p. 510. 
 
 Upon the applicon of M. the off. liq., etc., and upon hearing the solors Form 704. 
 for the ptrs and for the sd ofi*. liq. and for H. the late voluntary liq of Order to bring"
 
 540 
 
 WINDING-UP. 
 
 Form 704. tlie sd co and the sd H. hby sul)initting to tlie jurisdiction, and upon 
 in account of reading an order dated 2") July, 187G ; It is by consent of the sd H. 
 liquidator. ordered that the sd H. do forthwith or Avithin 7 days after service upon 
 
 him of this order, lodge in the chambers of the judge his account of 
 
 receipts and disbursemts on behalf of the sd co as such voluntary liq. 
 
 3Ianor Silkstonc Coal Co., IMahns, V.-C, 19 March, 1877. B. G23. See 
 
 also Form lid, post. 
 
 The above order was made in a case where a voluntary Avinding-up was super- 
 seded by a compulsory order, but the Court can at any time, upon an applica- 
 tion under s. 138 of the Act, order the liquidator to bring in and vouch his 
 account. The proceedings upon the order are like those in a compulsory wind- 
 ing-up, supra, p. 539. However, such orders are only made in sj^ecial circum- 
 stances, e.g., upon the liquidator's application, or where improper conduct is 
 shown. 
 
 Under s. 139 of the Act, the liquidator is to convene a meeting of contribu- 
 tories every year, and submit an account thereto. This applies even when a 
 supervision order has been made. Wright's case, 5 Ch. 137. Re Northern 
 Counties Bank, Chitty, J., at chambers, 18 Dec, 1883. See also s. 112 as to the 
 final account. 
 
 Form 705. Upon the peton of K. of preferred, &c., and upon reading, &c., 
 
 Order removino- ^^^^ ^^ appearing from the afft of the sd K. that J. the liq of the sd co is 
 liquidator. out of the jurisdiction and this Ct dispensing with service of the sd 
 joeton upon the sd co, Let the sd J. the liq of the sd co be removed fi'om 
 his office of liq of the sd co, And appoint the petr K. to he liq of the 
 sd CO in the place of the sd J., And Let the sd J. deliver up to the sd K. 
 all the ppty, cash, books of account, and papers in his possession belong- 
 ing to the sd CO. J/ai/i Pri/ifim/, dc, Co., Hall, V.-C, 13 Dec, 1878. 
 B. 2171. 
 
 Form 706. Upon motion, &c.. Let C. and B. be respively removed from being 
 Another. ^^*^1^ "^^ ^'^^ ^^ *^*^' ^^^^^ ^^^ some proper person or jiersons be appointed 
 
 to act in their stead as liqs in the winding up of the sd co, And order 
 that the sd C. and B. do render their final account as such liqs and do 
 deliver over to such new liq or liqs all ppty, books, and documts of the 
 sd CO in their custody, possession, or j^ower. And let the costs of the 
 
 applicants and of this motion be taxed and pd out of the 
 
 assets of the sd co. And Let the sd C. and B. bear their own costs of the 
 sd motion. Devonshire Silkstom Coal Co., Malins, V.-C, 13 Mar., 1878. 
 A. 575. This order was reversed on appeal, W. N. 1878, 173. 
 
 As to removal of liquidators, see s. 141 of the Act of 1862 ; Buckley, 201 ; Sir 
 John Moore Co., 12 C. D. 32G ; Oxford Bldg. Soc, 19 L. T. 495 ; and Form 454. 
 
 JleetiilffS. 
 
 Meetings. S. 139 of the Act empowers the liquidators to summon general meetings for 
 
 the purpose of obtaining the sanction of the company by special or extraordi- 
 nary resolution, or for any other purposes they think fit, and also requires 
 annual meetings to be held. The meetings should be convened by notice, in 
 accordance with the regulations of the company.
 
 VOLUNTARY. 
 
 541 
 
 AppUcalions to the Ct undor s. 138. 
 
 Tu the High Cfc of Justice. 
 Chancery Division. 
 
 ]Mi". Justice . 
 
 In the matter of the Cos Act, lHfi2. 
 
 And in the matter of the Co, Limtd. 
 
 Take notice \_as in Form 382, svpra, p. 418.] 
 
 Dated this day of . 
 
 Yours, etc. 
 To, &c. A. B., Solorfor the ai)}_tlicant. 
 
 Form 707. 
 
 Notice of 
 motion. 
 
 In the High C*t of Justice. 
 
 Chancery Division. 
 Mr. Justice . 
 
 188- 
 
 B. No.—. 
 
 Form 708. 
 
 Formal parts 
 of summons 
 under 3. 138. 
 
 In the matter of the Cos Act, 1SG2. 
 
 And in the matter of the B. Co, Limtd. 
 
 Let {.^-(J-, C, of , the liq of the above-named co] attend at 
 
 the chambers of Mr. Justice at the Eoyal Courts of Justice at the 
 
 time specified in the margin [or, at the foot] upon the applicon of 
 
 [D., who claims to be a contriby of the above-named co] that {state nature 
 of applicoji^. 
 
 This summons was taken out l)y of , solors to the above- 
 named D. 
 
 The foUowiiKj note k to he added to the, orhjlnal swnmovs, and vhen 
 tJie time is altered ii/ indori^emf the indorsemt to be referred to as detoi/j : 
 
 Note. — If you do not attend either in person or by your solor at the 
 time and place al)Ove-meutd {or at the time mcntd in the indorsemt 
 hereon], such order will be made and proceedings taken as the judge 
 may think just and expedient. [Sec Order TiY. r. 20.] 
 
 S. 138 of the Act is as follows : 
 
 Where a company is being wound up voluntarily, the liquidators or any con- 
 tributory of the company may apply to the Court in England, Ireland, or Scot- 
 land, or to the Lord Ordinary on the Bills in Scotland in time of vacation ; to 
 determine any question arising in the matter of such winding up, or to exercise 
 all or any of the powers which the Court might exercise if the company were 
 being wound up by the Court, and the Court or Lord Ordinary in the case afore- 
 said, if satisfied that the determination of such question, or the required exer- 
 cise of power, will be just and beneficial, may accede wholly or partially to such 
 application, on such terms, and subject to such conditions as the Court thinks 
 fit, or it may make siich other order, interlocutor or decree on such application 
 as the Court thinks just. 
 
 This section is frequently made use of in a voluntary winding-up. It will be 
 observed that only the liquidator or a contributory can apply : a creditor can- 
 not. See Poole Firebrick Co., 17 Eq. 2GS, Buckley, 193. Applications under 
 this section are to be by petition or motion, or, if the judge shall ao direct, by 
 summons at chambers. Rule 51. 
 
 Applications are occasionally made by petition. See In re Anglesea Co., 2 Eq.
 
 542 WINDING-UP. 
 
 Form 708. 370; Re Australian Co., W. N. 1877, 37; Form 70(3, supra, ^. 5iO. But they 
 ' are generally made by motion or summons. In the following recent cases the 
 
 application was by motion : In re Horbury, iSfc, Co., 11 C. D. 109 ; In re Gold 
 Co., 12 C. D. 77 ; Re Union Bank of Kingston-upon-Hull, 13 C. D. 808. 
 
 In the following case the application was by summons : In re Whitehonsc, 9 
 C. D. 595, and see Forms 527, 559, G19, 050. 
 
 The summons must be an originating summons, and must accordingly be filed 
 in the writ department of the central office. See further Order LV. r. 20 et seq. 
 
 As to obtaining order giving general liberty to apply in a voluntary winding- 
 up, see note to Form 709, infra. 
 
 Tlie following are some of the matters in regard to which applications are 
 from time to time made under s. 138. 
 
 Actions and proceedings : The liquidator can take and defend legal proceed- 
 ings in the name of the company under ss. 133 (7) and 95 of the Act, but occasion- 
 ally, e.g., where the matter involved is considerable, he applies for the sanction 
 of the Court. Sometimes a contributory applies for liberty to take proceedings 
 in the company's name. 
 
 Carrying on business : The liquidator can carry on the business of the com- 
 pany, so far as may be necessary for the beneficial winding up of the same 
 without the sanction of the Court, ss. 133 (7) and 95 of the Act. But occasionally, 
 in important cases, he applies for such sanction. 
 
 Borrowing : The liquidator can raise money vipon the security of the assets, 
 ss. 133 (7), 95, and the power is not uncommonly exercised, e.g., in order to pay 
 off seciu-ed creditors, to provide funds to carry on the business, &c. Occasion- 
 ally application is made to sanction the proceeding, as in a compulsory winding- 
 iijD. See supra, j). 451 et seq. 
 
 Delivery of books, papers, and property : Where a liquidator is unable to get 
 possession of the books, papers, or other property of the comjoany, he not uncom- 
 monly applies vmder ss. 100, 138, for an order for delivery. See supra. Form 
 462 et seq. In re Horhury Bridge Co., 11 C. D. 109. 
 
 Eestraining actions and proceedings. See Form 585 et seq. 
 
 Settling the list of contributories. See Form GS7. 
 
 Eectifying the list of contributories. See supra, p. 462, Form 511. 
 
 Making and enforcing calls. See Form 691. 
 
 Enfoi'cing payment of debts due fi'om contributories. See Form 692. 
 
 Liberty to declare and pay dividends to creditors and contributories. See 
 Form 525. 
 
 Adjudication of disputed claims. See Form 696. 
 
 Compromises. See note preceding Form 647. 
 
 Service. Applications are sometimes made as to service out of the jurisdic- 
 tion or siibstituted service. See Form 575 et seq. 
 
 Examination and discovery under s. 115. Such applications are not uncom- 
 mon ; they are usually made by the liqiiidator, especially with a view to pro- 
 ceedings under s. 165. In re Gold Co., 12 C. D. 77. See Form 629. 
 
 Taxation of costs. See Form 703. 
 
 Inspection under s. 156 of the Act. 
 
 Applications for liberty to inspect the books and papers under this section, 
 are not uncommon, see Form 619, snpra. 
 
 Proceedings against directors and others under s. 165, by no means uncom- 
 mon, see In re Gold Co., 12 C. D. 77, and Forms 634 et seq. 
 
 In reo-ard to s. 161, see infra, introduction to "Reconstruction." 
 
 Adjusting the rights of contributories. Occasionally application is made to 
 the Court to determine the rights of contributories in the surplus assets. See 
 In re Eclipse Gold Mining Co., 17 Eq. 491 ; and In re Anglesea Colliery Co., 2 Eq. 
 379, in which case the application was by petitions. 
 
 Unclaimed dividends. Sometimes before the final meeting is held, the liqui- 
 dator pays any unclaimed dividends into Court, and obtains an order as in 
 Form 671.
 
 VOLUNTARY. 543 
 
 Staying the winding up : Upon an application to the Court under s. 138, the Form 708. 
 power given by s. 89 of staying proceedings in the winding up may be exer- 
 cised. See further, supra, p. 38i. The application is usually by petition. 
 South Barrule Slate Quarry Co., 8 Eq. 6S8 ; Bog Mining Co., L. J. Notes of 
 Cases, 1875, 48, and see supra, " Petitions." 
 
 Upon the applicon of the above-named co l)y sinnnioiis dated the Form 709. 
 7th of April, 1877, and upon liearing the solors for the ap])licaiits, and Order giving 
 upon reading the London Gazette of the loth of April, 1.S77, publishing general Uberty 
 notice of a general meeting of the members of the sd co held on the 
 Kith of March, 1877, at which it was resolved that the sd co should be 
 wound up voluntarily, and also appointing ]\Iessrs. L. & D. liqs of the 
 sd CO, and passing certain other s]iecial resolutions, and notices of an 
 extraordinary general meeting of the members of the sd co held on the 
 C.th of April, 1S77, conhrming such resolutions. It is ordered that 
 the sd liqs or any contribs of the sd co may from time to time apply to 
 this Ct to determine any question arising in the winding up of the sd 
 CO, and to exercise as respects the enforcing of calls or in respect of any 
 other matter all or any of the powers which this Ct could or might 
 exercise if thesd co was being wound up by the sd Ct : Axd it is 
 ORDERED that such proceedings be taken for the ppose of ascertaining 
 and adjudicating upon the debts of and claims upon the sd co as the 
 judge shall direct. Argentine Tramways Co., Hall, V.-C, 17 App., 1877. 
 A. 687. 
 
 An order giving liberty to apply as above, is sometimes made on the applica- 
 tion of the liqiiidator. The object is to facilitate applications to the Court by 
 avoiding the necessity of taking out an originating summons, wlienever appli- 
 cation by summons has to be made. Where such an order has been made, 
 application can be made by ordinary summons. Possibly there may be some 
 doubt as to the jurisdiction to make the order. The following order goes still 
 further, for it gives creditors liberty to apply. 
 
 Upon the a^jplicon of the above-named co, &c., and upon hearing the Form 710. 
 solors for the applicants, and upon reading the London, (razeite of the Another order 
 4th of Jan, 187(1, containing, &c. It is ordered that the sd liqs or any giving general 
 contribs or creditors of the sd co may apply to this Ct to determine any ;,ppi,? 
 question arising in the winding-up of the sdco, and to exercise as respects 
 the enforcing of calls or in respect of any other matter all or any of the 
 ])owers which the Ct could or might exercise if the sd co was l^eing 
 wound up by the sd Ct. And it is farther ordered that an inquiry be 
 forthwith made whether there is any debt of the sd co remaining unpaid. 
 London and Asiatic, <£t., Co., Malius, V.-C, 12 Dec, 187(). B, lOiio. 
 
 The Co, Limtd. 
 
 Notice is hby given in psuance of section 142 of the Cos Act, 1862, that °^ 
 a general meeting of the members of the above-named co will be held at Notice con- 
 on day the of at o'clock in the afternoon, for meetlg^"'"'
 
 544 
 
 WINDING-UP. 
 
 Form 711. the ppose of liaA'ing an account laid before them showing the manner in 
 which the winding-up has been conducted, and the ppty of the co dis- 
 posed of, and of hearing any explanation that may be given by the 
 li(|, and also of determining by extraordinary resolution the manner in 
 which the books, accounts and documts of the co and of the liq thereof 
 shall be disposed of. 
 
 Dated the day of . A. D., Liquidatm'. 
 
 See section 11-2 of the Act as to the final meeting. The meeting must be 
 convened by advertisement as above in the Gazette, one month at least before 
 the meeting. And where the meeting is to dispose of the books^, &c., notice to 
 the same effect must also be given to the members of the company, by post or 
 otherwise, as provided by the articles thereof, for iinder section 155 of the Act, 
 the books, &c., are to be disposed of as the company, by an extraordinary reso- 
 lution (see sections 129, 129) directs. 
 
 The notice for insertion in the Gazette must be signed by the liquidator. If 
 the signature is attested by a solicitor whose name is in the law list, that may 
 be sufficient, but sometimes the Gazette requires a duplicate to be verified by 
 the statutory declaration of some person who will state that he was present on 
 the day of , and saw \t}ie liquidator^ sign the notice hereto an- 
 nexed, and that the signature set and subscribed to the said notice as the 
 
 attesting witness to the said signature is of the proper handwriting of the 
 declarant. 
 
 At the meeting the liquidator will present the account referred to in the 
 notice, and will give any requisite explanations ; and resolutions will be passed 
 for the adoi^tion thereof, and as to the books, e. g. — 
 
 1. That the account submitted to this meeting, and showing the manner in 
 
 which the winding up has been conducted and the property of the com- 
 pany disposed of, be received and adopted. 
 
 2. That the books, accounts, and documents of the company, and of the liqui- 
 
 dator thereof, be retained by the said liquidator, he iindertaking to 
 destroy the same upon the dissolution of the company, or, handed over 
 to the purchaser of the company's [leasehold property]. 
 
 The 
 
 Co, Limtd. 
 
 Form 712. To the Eegistrar of Joint-Stock Cos. 
 Notice to ^ ^^o ^^ inform you that a meeting of the above-named co was duly 
 
 registrar of held ou the day of for the ppose of having an account laid 
 
 na meeting. |j^^yj^.g tj^gji^ showing the manner in which the winding-up of the co has 
 l^een conducted and the ppty of the co disposed of, and the same was 
 done accordingly. 
 Dated, &c. 
 
 , Liquidator. 
 
 Section 1 13 of the Act requires the liquidator to make a return to the Eegis- 
 trar of Joint Stock Companies as above, and provides that on the expiration of 
 three months from the registration of the return, the company shall be deemed 
 to be dissolved. Default in making the return subjects the liquidator to a 
 penalty of 5Z. 
 
 Where a company is wound up voluntarily, it is of great importance to all 
 parties that it should be duly dissolved in manner before mentioned, for until 
 dissolution it continues to exist, and accordingly forgotten liabilities may be 
 discovered and disputes revived, and the conduct of the liquidator impeached. 
 Hundi-eds of dissolutions take i^lace every year.
 
 UNDER SUPERVISION. 545 
 
 When the company has been dissolved as aforesaid, the court will not make a Form 713. 
 winding-up order, even upon the iietition of a creditor who has been excluded. 
 Pinto Silver Mining Co., 8 C. D. 273 ; Westhoiirne Grove Drapery Co., W. N. 1878, 
 195. But in a case of fraud it might be possible to set aside the dissolution. 
 London and Caledonian Co., 11 C. D. 140. 
 
 Until the expiration of the thi-ee months, application can be made to the 
 court, and a winding-up order may be made. CrooJchaven Mining Co., 3 Eq. 09. 
 
 WINDING UP UNDER SUPERVISION. 
 
 Supervision Orders. 
 Upox the peton, kc. This Ct doth order that the vohuitary winding- Form 713. 
 lip of the sd CO be continued, but subject to the supervision of this Ct, Supervision 
 and any of tlie proceedings under the sd Tokmtary winding up may be oi'<^ler. 
 adopted as the judge shall think fit : And the creditors, contribs, and 
 liqs of the sd co, and all other persons interested, arc to be at libty to 
 apply to the judge at chambers as there may be occasion. And it is 
 ordered that the costs of the petr and of the sd co and liqs of and 
 relating to this peton, be taxed by the taxing master and pd out of the 
 assets of the co. 
 
 Upon the peton of the Credit Foncier, Limtd, creditors of the above- Form 714. 
 
 named co, &c., This Ct doth order that the voluntary winding up of the Another, 
 above-named co be continued, but subject to the supervision of the Ct, appointing 
 and any of the proceedings in the voluntary winding up may be adopted 
 as the judge shall think proper : And the respondent H. M. C, one of 
 the present liqs of the sd co, by his counsel at bar, desiring to resign his 
 
 ofi&ce of liq : This Ct doth order that J. E. H. of , be appointed liq, 
 
 in the stead of the sd H. ]\I. C. and to act in conjunction v\"ith C. T. M. 
 the continuing liq. And it is ordered that the petrs and the sd Hester & 
 Co., Limtd., and the liqs thereof, and the respondents, the shareholders, 
 be allowed their costs of and relating to this applicon, out of the assets 
 of the CO, such costs to be taxed by the taxing-master, who is to allow 
 to the respondents, shareholders, such costs as they might properly have 
 incurred and would have incurred by employing one solor. The petrs to 
 be at libty to appear before the judge as creditors in all proceedings 
 relating to the winding up at the expense of Hester & Co., Limtd. 
 And it is ordered, that the retiring liq be at libty to make any appli- 
 con in respect of his remuneration (if any), as such liq, as lie may be 
 advised. Hester Si- Co., Limtd., Bacon, V.-C, 11 May, 187G. A. 815. 
 As to giving notice of winding-vip order, see supra. Form 423. 
 
 Effect of Supervision Order. 
 
 Section 151 of the Act provides as follows : 
 
 Where an order is made for a winding up subject to the supervision of the 
 court, the liquidators appointed to conduct such winding up may, subject to any 
 
 N N
 
 546 
 
 WINDING-UP 
 
 Porm 714. restrictions imposed by the court, exercise all their powers without the sanction 
 ■ or intervention of the court, in the same manner as if the company were being- 
 wound tip altogether vokxntarily ; but save as aforesaid, any order made by the 
 court for a winding up subject to the supervision of the court, shall for all 
 piirposes, including the stay of actions, suits, and other proceedings, be deemed 
 to be an order of the court for winding up the company by the court, and shall 
 confer full authority on the court to make calls or to enforce calls made by the 
 liquidators, and to exercise all other powers which it might have exercised if an 
 order had been made for winding up the company altogether by the court, and 
 in the construction of the provisions whereby the coiu't is empowered to direct 
 any act or thing to be done to or in favour of the official liquidators, the ex- 
 pression " official liquidators," shall be deemed to mean the liquidators con- 
 ducting the winding- up subject to the supervision of the court. 
 
 It is very rarely that any restrictions are imposed on the liquidators. Where 
 no restriction is imposed, the liquidator may proceed with the winding uj), just 
 as if a supervision order had not been made. If it becomes desirable to apply 
 to the court in regard to any matter, the liquidator can make application ac- 
 cordingly, but he may find that he can complete the winding- up without any 
 application. However, the practice in regard to the conduct of a winding up 
 under supervision varies considerably. In some cases, especially where the 
 assets are considerable, and the pai-ties interested numeroiis, the liquidator 
 scarcely takes any step without the sanction of the court ; in others he never 
 applies excei)t in case of necessity. In many cases a middle course is adopted, 
 and the sanction or powers of the court are only invoked in important matters. 
 
 Applications are very commonly made by the liquidators — 
 
 To restrain proceedings. See note following Form 573. 
 
 To enforce the payment of calls and other moneys due from contributories : 
 supra. Form 520. 
 
 For liberty to sell or concur in sales : siq^ra, Form 467. 
 
 As to compromises : Form 628 et seq. 
 
 For examination of directors and others under section 115 of the Act: see 
 note following Form 615 et seq. 
 
 To recover money from directors and others under section 165 of the Act : 
 sujjra, Form 621, et seq. 
 
 By contributories to rectify the list of contributories, supra. Form 500 ; for 
 inspection. Form 605, and for other purposes. 
 
 By creditors, as regards disputed debts and claims : siqyra, Form 522, et seq . ; 
 for declarations of rights. Form 55 1 ; and for liberty to bring actions and take 
 proceedings : Form 593 et seq., and Form 70 Ij infra. 
 
 Order for ap- 
 pointment of 
 liquidators. 
 
 Liqiddafo7's. 
 Porm 715. Upon the peton [credilors': siiprrvision order'] : And order that a proper 
 person or persons he appointed liq or hqs of the sd co withont prejudice 
 to any apphcon by those appointed by the general meeting for tlieir 
 appointmt as such hqs. Ballycummislc Cojjjwr MiniiKj Co.., j\I. R., 3104 A. 
 15 Dec, 187^5. 
 
 Unless otherwise provided by the supervision order, the voluntary liquidators 
 remain in office, but sometimes the court removes them and appoints others, or 
 appoints additional liquidators. This is done under section 111 of the Act, and 
 under sections 93 and 150. It seems, however, that a voluntary liquidator can 
 only be removed for " due cause." See supra, p. 4-17 ; Oxford Building Soc, 40 
 L. T. 495. 
 
 Form 716. 
 
 Liquidator to 
 give security. 
 
 Upon, &c. \_svpprvi$wn or(hr~\ ; And order that E. the \\({ of tlie sd co 
 appointed under the sd vohintary winding up })e continued as such liq
 
 UNDER SUPERYISIOX. 547 
 
 on his giving security to ])c approved Iiy the judge. Great Western iyc, Form 716. 
 Laundrij Co., ^l. R., 2(J July, 187«. A. 1471. ^ 
 
 The Court seldom requires securitj' from a liqiticlator where the company has 
 not required it, see European Bank, 19 W. E. 268. 
 
 Solor. 
 
 Upon the applicon of M., one of the liqs of the above-named co, &c., Form 717. 
 Order that Mr. C, the present solor of the liqs, be discharged from Oi^r asto^ ^ 
 being such solor. And this Ct doth hby appoint j\Ir. P. the official appointing 
 solor to be the solor of the sd liqs in the place of the sd C, And ^°]|[i'j°J."i*°_ 
 it is ordered that the sd C. do within 14 days after the service of this 
 order upon him, deliver up upon oath to the sd P., all papers in his 
 possession relating to the winding up of the sd co, but this order is to be 
 without prejudice to any claim the sd C. may make for paymt of his 
 costs, And it is ordered that the costs of this applicon be costs in the 
 winding up. Hester & Co., Bacon, V.-C, G June, 1878. A. 1230. 
 
 The liquidator has jjower under ss. 193 (7) and 97, to appoint a solicitor. 
 Where there are two liquidators, and they cannot agree as to the appointment 
 of a solicitor, it is doubtful whether the Court can appoint one for them. It 
 is true that an order was made by Bacon, V.-C, as above ; but in the Colonial 
 Trusts Corporation, Dec, 1S78, Jessel, M.E., considered that he had no juris- 
 diction to make such an order. See order subseqi^ently made in that case, 
 infra. Form 708. 
 
 Restraining Actions, &c. 
 
 Section 148 of the Act of 1862 provides that a petition for a siipervision order 
 shall, for the pur^Doses of giving jurisdiction to the Court over suits and actions, 
 be deemed a petition for winding up the company by the Court. Accordingly 
 upon the presentation of the petition, application can at once be made ex parte 
 to stay or restrain actions or proceedings as in the case of a petition for a 
 compulsory winding up. See supra, p. 489. 
 
 Liberty 'to bring or continvc Actions against Co. 
 
 Where a supervision order has been made, s. 87 {sx<,pra, p. 494] by virtue of 
 s. 151 applies, and accordingly no action or proceeding can be commenced or 
 proceeded with against the company except with the leave of the Court. The 
 application for leave is generally made by summons. See further. Form 59.3, 
 et seq. 
 
 The following is an example of an order : — 
 
 Upon the appHcon of E., a creditor of the above-named co, and upon Form 718. 
 hearing the solors for the applicant and for S. and W, the voluntary liqs £:, 
 of the sd CO, and upon reading an order dated, &c., for continuing the bring actiou. 
 volmitaiy winding up of the sd co under supervision and an aflFt, &c., It 
 is ordered that the sd E. be at libty to bring an action against the above 
 CO on behalf of himself and all other the holders of mtge debentures to 
 the extent of 60,000 Z. issued by the sd co for the j)poi5e of enforcing and 
 
 N N 2
 
 648 WINDING-UP 
 
 Form 718. realising the security. Hawne Collieries Co,, Malins, Y.-C, 11 July, 1877. 
 A. 1414. 
 
 If after a supervision order any proceeding against the company, e.g.,& sale, 
 distress, or execution is taken without the sanction of the Court, application 
 can be made to the Court to restrain the same, as in the case of a compulsory 
 winding up, see supra, p. 489. 
 
 Creditors. 
 
 If the liquidator has not previously to the supervision order issued the usual 
 notices to creditors he should do so immediately after the order. The form 
 will be the same as in a purely voluntary winding up. See Form 591. But in 
 many cases it is considered desirable to have the debts and claims adjudicated 
 on by the Court, and in such cases the form of advertisement is generally 
 settled by the chief clerk. In these cases application should be made by 
 summons for an order as in Form 593, and the advertisement will be as in 
 Form 20 in the Schedule to the Eules, using the word liquidator instead of 
 official liquidator. 
 
 Adjiulication : — In due course the liquidator will consider the claims sent in, 
 and make out the list of creditors as in the case of a purely voluntary winding 
 up. If necessary he can apply to the Court to adjudicate upon any disputed 
 claims, as in a voluntary winding up, and a claimant can also apply to the 
 Court as in the case of a compulsory winding up. 
 
 Where the Court adjudicates generally on the debts and claims, the pro- 
 cedure will be the same as in a compulsory winding up. See su])ra, p. 468. 
 
 Dividends : — Where the Court has adjudicated on the debts and claims, it is 
 usual to apply for liberty to declare dividends, as in a compulsory winding up : 
 but otherwise the liquidator acts as in a i^urely voluntary winding up. 
 
 Contrils. 
 
 Settling the List : — Where a supervision order has been made, the liquidator 
 usually makes out and settles the list, as in a voluntary winding uj). However, 
 in a good many cases application is made to the Court to settle the list. 
 Applications by contributories to rectify the list are common. 
 
 Calls : — Sometimes, and esiDecially when the Court has settled the list of 
 contributories, application is made to the Court to make calls, but in general, 
 the liquidator makes the calls himself, and merely applies to the Court, where 
 necessary, to enforce payment. For orders for calls, see Volunteer Co-o}). Co., 
 M. E., 22 July, 1877. B. 1422. 
 
 Dividends : — The liquidators generally declare dividends without any appli- 
 cation to the Court. 
 
 Accounts of Liq. 
 
 It is not uncommon to apply to the Court for liberty to pass and vouch the 
 accounts. The procedure is the same as in a compiilsory winding up. Sux>ra, 
 p. 439. 
 
 Form 719. Upon the applicon of C, the liq of co, and upon hearing- the solors 
 for the applicants and for D., the person appointed to represent the 
 creditors, and upon reading an order dated 18 July, 1876, the affirmation 
 
 of the sd C. filed, &c., Order that the sum of 1. be allowed the sd 
 
 liq for his services as liq from the 1st July, 1876, to the 31st March, 
 
 Order as to 
 remuneration 
 of liquidators
 
 UNDER SUPERVISION. 549 
 
 1877, both inclusive, auci that ho be at libty to retain the same out of Form 719. 
 the assets of the scl bank. And order that the costs of this apphcon be 
 costs in the winding-up. Oriental Commercial Banlc, Bacon, V.-C, 18 
 App. 1877. B. G78. 
 
 The Court is sometimes asked to fix the remuneration of the liquidators as 
 above. It has jurisdiction imder ss. 93, 151 ; and see Cannan's Claim, 7 Eq. 102. 
 
 Moreover, where a voluntary liquidator has been appointed at a specified 
 remuneration, the Court after a supervision order has power to increase it in a 
 proper case. Re Northern Comities Bank, Chitty, J., at Chambers, 15 Mar. 1883. 
 
 Upon the appHcon of L., tlie h'q of co, by summons dated 15 June, Form 720. 
 1877, and upon hearing the solor for the sd hq and for N., a debenture- Z ~. Z 
 holder of co, and upon reading, &c., and an order dated 6 Nov. 1875, It costs, 
 is ordered \_Hsiuil order for taxation of li<fs costs, <&€.'], And order that 
 such costs, charges, and expenses when so taxed, be pd out of the 
 assets of the sd co. Neivsjiaper Co., M. R., 22 June, 1877. B. 1143. 
 
 See also order in In re Brentwood Brick Co., 15 Nov., 1878. A. 2089. Where 
 the costs were directed to be taxed " for the purpose of being paid out of the 
 assets of the comjjany, as and when may be hereafter ordered." 
 
 Sometimes the liquidator's costs, &c., ai-e taxed in the winding iip, but very 
 commonly he pays them without taxation, upon an undertaking- from the 
 solicitor as mentioned in note to Form G89. 
 
 Upon the applicon of , being the committee appointed by the porm 721. 
 
 general body of creditors to represent them in the winding up of the 
 
 T'iiiT-» ■ I ■ • ^• ni Order removing 
 
 above-named co, &c., It is ordered that 13., one of the joint liqs of the liquidator, 
 sd CO, be and he is hby removed from such ofHce, and the sd K., the 
 other joint liq, be continued, and he is hby appointed sole liq of the sd 
 CO : And it is ordered that the applicants and the sd B. & K. be allowed 
 their costs of and relating to this applicon out of the assets of the sd co 
 [to be taxed]. Colonial Trusts Corjwration, M. R. 11) Dec. 1878. A. 
 2303. 
 
 In the above case the liquidators could not agree as to the appointment of a 
 solicitor, and accordingly one of them was removed on the application of the 
 committee. See further as to removal of liquidator, supra, p. 447. 
 
 Ap2)licons to the Ct. 
 
 The supervision order gives liberty to the creditors, contributories, and 
 liquidators of the company, and to all other persons to apply at chambers. 
 Application can accordingly be made by ordinary summons [Form 3G8], as in 
 the case of a compulsory winding up. It will be observed that creditors can 
 apply ; this is one of the chief distinctions between a winding up purely 
 voluntary, and one under supervision. In the former, creditors have no power 
 to apply. 
 
 A considei'able number of orders made in cases where the winding up was 
 under supervision will be found among the forms relating to compulsory 
 winding up given above.
 
 550 
 
 WINDING UP. 
 
 Dissohdlon. 
 
 Form 722. Upon the applicoii of the above-iiamcd c;), &c., and it appearing that 
 Liberty to calf the affairs of the sd co are fully wound up, It is ordered that the liqs of 
 fiual meeting, the sd CO do make up an account and call a general meeting of the 
 
 mcmhers of the sd co, as provided by sec. 142 of the above-mentd Act. 
 
 Imperial Mercaniile Credit Assoc, Limtch, Bacon, Y.-C, 22 j\Iar. 1878. 
 
 In most cases the liquidator calls the final meeting, and procures the dis- 
 solution as in the case of a purely voluntary winding up, but occasionally 
 application is made to the Court for an order as above. As to the mode of 
 effecting the dissolution^ see sxiigra. Form C97.
 
 EECONSTKUCTION. 
 
 INTRODUCTORY NOTES. 
 
 There are three modes of reconstructiug a company formed under 
 the Companies Act, 18G2 ; 
 
 1. By Special Act of Parliament. See further " Special Acts," 
 infra. 
 
 2. By means of a sale sanctioned by the Court under the Joint Stock 
 Companies An-angement Act, 1870. See further " Ai-rangements," 
 ■infra. 
 
 3. By means of a voluntary ^vinding up and a proceeding under s. IGl 
 of the Act of 18G2. 
 
 In this division of the work reconstruction under s. IGl will be ex- 
 clusively dealt with. That section provides as follows : 
 
 " Where any company is j^roposed to be or is in coiu'se of being wound np 
 altogether voluntarily^ and the whole or a portion of its business or propei'ty 
 is proposed to be transferred or sold to another company, the liquidators of the 
 first-mentioned company may, with the sanction of a special resolution of the 
 company by whom they were appointed, conferring either a general authority 
 on the liquidators, or an authority in respect of any particular arrangement, 
 receive in compensation or part compensation for stich transfer or sale, shares, 
 policies, or other like interests in such other company, for the purpose of dis- 
 tribution among the members of the company being woumd up, or may enter 
 into any other arrangement whereby the members of the company being wound 
 up may, in lieu of receiving cash, shares, policies, or other like interests, or in 
 addition thereto, participate in the profits of, or receive any other benefit 
 from the purchasing company ; and any sale made or arrangement entered 
 into by the liquidators in pursuance of this section shall be binding on the 
 members of the company being wound up ; subject to this proviso, that if any 
 member of the company woiind uj) who has not voted in favoiu' of the special 
 resolution passed by the company of which he is a member, at either of the 
 meetings held for passing the same, expresses his dissent from any such special 
 resolution in writing addressed to the liquidators, or one of them, and left at 
 the registered office of ^the company not later than seven days after the date 
 of the meeting at which such special resolution was passed, such dissentient 
 member may require the liquidators to do one of the following things, as the 
 liquidators may prefer ; that is to say, either to abstain from carrying such 
 resolution into effect, or to purchase the interest held by such dissentient 
 member at a price to be determined in manner hereinafter mentioned, siich 
 purchase-money to be paid before the company is dissolved, and to be raised 
 by the liquidators in such manner as may be determined by sjiecial resolution : 
 no special resolution shall be deemed invalid for the purposes of this section 
 by reason that it is passed antecedently to or concurrently with any resolution, 
 for winding up the company, or for appointing liquidators ; but if an order be
 
 552 
 
 EECONSTEUCTION. 
 
 made within a year for winding iip the company by or subject to the supervi- 
 sion of the Court, such resolution shall not be of any validity unless it is 
 sanctioned by the Court." 
 
 The price t(j be paid to dissentients is to be determined in accordance 
 with Section 102 of the Act, Avhich is as follows : 
 
 Section 162. "The price to be paid for the purchase of the interest of any dissentient 
 
 member may be determined by agreement ; but if the parties disjjute about 
 the same, such dispute shall be settled by arbitration, and for the purposes of 
 such arbitration the provisions of The Companies Claiises Consolidation Act, 
 1845, with respect to the settlement of disputes by arbitration, shall be incor- 
 porated with this Act ; and in the construction of such provisions this Act shall 
 be deemed to be the special Act, and ' the company ' shall mean the company 
 that is being wou.nd up, and any appointment by the said incorporated pro- 
 visions directed to be made under the hand of the secretary, or any two of 
 the directors may be made under the hand of the liquidator, if only one, or any 
 two or more of the liquidators, if more than one." 
 
 Keeonstruc- 
 tions common. 
 
 Examples. 
 
 Mode in vliicli 
 
 reconstruction 
 
 effected. 
 
 Case A. 
 
 A reconstrnction nnder Section 161 above, has now become a matter 
 of ordinary occnrrence, and may be resorted to with advantage in a 
 variety of cases, of which the following- are examples : — 
 
 A. Where the company desires to do something nltra vires, e.g.: — 
 (1.) To engage in some bnsiness or do some thing not within the 
 
 objects set forth in its memorandum of association. See supra, 
 p. 50. 
 
 (2.) To issue preference shares, there being no power in the memoran- 
 dum or articles to do so. See supra, p. 195. 
 
 (3.) To issue preference shares, having a priority o\'er preference 
 shares already issued, notwithstanding the holders of such 
 last-mentioned shares, or some of them, refuse to consent. 
 [See si(j)ra, p. IDG.] 
 
 B. Where a company desires, without submitting to the stringent 
 conditions prescribed by the Companies Acts, 18G7 and 1S77, upon a 
 reduction of capital, to carry into effect any arrangement which would 
 amount to a reduction of capital, e.g.: — 
 
 (1.) To divide part of its paid-up capital, either in cash or in specie, 
 among its members. 
 
 (2.) To reduce the liability on its shares which are only in part 
 paid up. 
 
 (3.) To extinguish all further liability on such shares. 
 
 (4.) To return capital, ])ut with power to call it up again. 
 
 The mode in which the reconstruction is carried into effect is as 
 follows : — 
 
 In case A. (1). 
 
 Let it be supposed that the capital of the existing company is 
 100,000/., divided into 10,000 shares of 10/. each, that its object is 
 to work a particular patent for the manufacture of steel, and that it 
 desires to ha^e power to acquire and work other patents for the like 
 purpose.
 
 INTEODUCTOHY NOTES. 553 
 
 The directors having satisfied themselves that a reconstruction is Preliminary 
 expedient, will suggest it at a general meeting and procnre a resolu- ^ *^^^^' ■ 
 tion in favour of it to be passed, or, as is sometimes done, they will 
 issue a circular to the members or to the largest holders of shares 
 seeking their approval of the plan. 
 
 If the plan is favourably received, the memorandum and articles of New company. 
 a new company will be prepared. Tlie objects of such company will 
 be to acquire and undertake the property and liabilities of the old 
 company, and to ac(iuire and work any patents for the manufacture 
 of steel and such other objects as may be deemed expedient. The 
 capital will be the same as that of the old company. The articles 
 will authorise the directors to purchase and undertake all or any part 
 of the property and liabilities of the old company upon the terms of an 
 agreement therein referred to. 
 
 Probably by the articles all, or some, of the directors of the old 
 company will be appointed directors of the new company. 
 
 Notice will then be issued by the directors of the old company con- Issue of notice. 
 vening an extraordinary meeting of that company to consider certain 
 resolutions which will be given in the notice. 
 
 If the resolutions are passed by the requisite majority at the first 
 meeting, a second one Avill be called to confirm them, so that they may 
 become special resolutions. See siqrm, p. 212. 
 
 And if they are duly confinned, the new company will be at once in- Special reso- 
 corporated, and the liquidators of the old company and the directors of ^^ '°'^' 
 the new company will execute the agreement mentioned in the resolu- ^'^^*' ^y ^"^1^"* 
 tions. 
 
 The agi'eement will provide for the sale of all the property of the old Agreement. 
 company to the new company, in consideration of tlie new company 
 undertaking the debts and liabilities of the old company, paying the 
 costs of winding it up, providing tlie funds necessary to purchase the 
 interest of any dissentient members, and allotting to every assenting 
 member of the old company one share in the new company in respect of 
 each share held by him in the old company. 
 
 If the matter has been properly managed, the cliaiices are that there Dissentients, 
 will be but few dissentient members (if any). The funds to pay them 
 will be provided by the new company by l)orrowing or otherwise. 
 
 The property of the old company Avill be in due course made over to Campletion of 
 the new company, which will allot its shares as provided by tlie agree- ^^^^• 
 ment. 
 
 The debts and liabilities of the old company (if it has any) Avill be got 
 rid of as soon as possible. Many of the creditors will probably agi-ec to 
 accept the liability of the new instead of the old company ; the rest will 
 be paid. 
 
 As soon as may be the liquidators hold the final meeting (Section 142 Dissolution of 
 of the Act), and make the proper return to the registrar (Section 143 of °^*^ c°™P''^°y- 
 the Act), and at the expiration of three months therefrom the old com- 
 pany is ipso facto dissolved.
 
 554 
 
 EECONSTEUCTION. 
 
 General or 
 particular 
 authority to 
 liquidators. 
 
 Variations in 
 arransemeut. 
 
 New company 
 commonly 
 takes the old 
 name. 
 
 Section ICl, it ■will be observed, authorises a sale sanctioned by a 
 special resolution conferring " citlwr a general authority on the liqui- 
 dators, or an authority in respect of any particular arrangement." 
 Sonietinies a general authority is given ; but in most cases it is limited 
 to a sale on the terms of a particular agreement. Instead of a draft 
 agreement, as above, it is not uncommon to have a provisional agree- 
 ment made lietween one person on behalf of the old company and 
 another on behalf of the intended new company. In such case the 
 resolution will authorise the liquidators to " adopt " the agreement. 
 
 Of course the arrangement must vary according to the circumstances 
 of the company, and the object of the reconstruction. 
 
 Thus in cases A. (2) and (3), supra, p. 552 : — 
 
 Care will be taken that the articles of the new company contain full 
 power to issue preference shares, or the capital of the new company will 
 consist in part of preference shares. 
 
 In case B. (1) : — 
 
 Suppose that the shares in the old company are 20/. fully paid up, 
 and that it is desired to return 10/., the agreement will provide that the 
 new company shall, in exchange for each share in the old company, 
 allot one fully paid-up 10/. share in the new company, and pay the sum 
 of lu/. in cash. 
 
 Or suppose that the object of the reconstruction is to divide in specie 
 some assets of doubtful value, e.(j., debentures of some other company. 
 The new company will, as the considerati<jn for the sale, agree to allot 
 shares to the members of the old company, and to divide the deben- 
 tures among them pro rata. 
 
 In case B. (2) : — 
 
 Suppose the shares in the old company are 2o/. with 10/. paid up, and 
 it is desired to reduce the liability to 5/. In such case, one 15/. share 
 in the new company, with lo/. credited as paid up, will be allotted in 
 exchange for each share in the old company. 
 
 In case B. (3) : — 
 
 Suppose the shares in the old company to be 10/. with 7/. paid up, 
 and that it is desired to extinguish all further liability. The object will 
 l)e attained by allotting one fully paid up 7/. share in the new company 
 in exchange for each 10/. share in the old company. 
 
 In case B. (4) : — 
 
 Suppose the shares in the old company are lu/. fully paid up, and that 
 it is desired to retm-n 5/. per share, but with power to call it up again. 
 In such case the new company will allot one of its 10/. shares credited 
 with 5/. paid up, and will pay hi. in cash in respect of each 10/. share 
 in the old company. 
 
 In cases of reconstruction the new company very commonly takes the 
 name of the old one. This is effected under Section 20 of the Act. 
 See supra, \). (j-i. Immediately after the special resolution to wind nji, 
 &c., ])as been passed l)y the old company, the liquidators sign the i)roper 
 consent to the registration of the new company by the same name.
 
 INTEODUCTORY NOTES. 
 
 555 
 
 Supra, p. 219. The new company is registered by the old name the 
 same or next day, tlie agreement is forthwith executed and the new 
 company commences business, thus avoiding any stoppage. Sometimes 
 the name is slightly varied, and sometimes a perfectly different one is 
 chosen for the new company. 
 
 It will be observed that Section IGl only authorises a sale to a Sale must he 
 companij. Hence a sale to an individual, who is to form a new *° compauy. 
 company, and make such profit as he can out of the transaction, is 
 not valid. Bird v. UircVs Patent Hctraye Co., 9 Ch. 358. See Form 
 333, supra. 
 
 But an agreement with some person purporting to act on behalf of an 
 intended company, fcir a sale to him as such agent or to the company 
 may be valid. In re Hester d; Co., 44 L. J. N. S. 757. 
 
 Section IGl does not rc({uire that the sale should be made to a com- it may be to 
 pany registered under the Act of 18G2. The sale may be to any ^^'^''^^S'^ '^°'"" 
 com})any, English or foreign. In re Irrhjation Co. of France, Ex parte 
 Fox, G Ch. 183. 
 
 An agreement adopted by the liquidators of a company pursuant to Liquidators 
 the direction of the company given jjy virtue of Section IGl is valid. "!^y '^® 
 SoutJtall V. British Mutual Life Assur. Soc, 11 Eq. 65 ; G Ch. 614. adopt agree- 
 
 The agreement may provide for the allotment of the shares, «tc., to '°*^"*- 
 the memljers of the company being wound up directhj. See In re City Agreement 
 and County Investment Co., 13 C. Div. 475. Hbtment 
 
 A sale under s. 161 may be made in consideration of shares that of shares to 
 are only in part credited as paid up. In re City and County Investment dji-e^tlT*' 
 Co., 13 C. Div. 475 ; Imjierial Mercantile Credit Association, 12 Eq. 504 ; 
 Hester & Co., 44 L. J. 757. But in such case the liquidator should 
 take care that the shares are not allotted to him but to the shareholders 
 directly, otherwise he may be involved in lialnlities which he never con- 
 templated. Dyetfs case, 43 L. T. 85. 
 
 The question whether upon a sale under s. IGl the members can Mode of 
 by special resolution determine the mode in which the shares forming ^^I'^ti'i^jntion. 
 the consideration for the sale shall, as between different classes of mem- 
 bers, be distributed cannot be regarded as settled. 
 
 Previously to the decision of the Master of the Eolls in Paget v. Griffith, 
 5 C. D. 894, it was very generally thought that the members could so 
 determine, and many reconstructions were effected on that footing. For 
 example where the capital of a company was divided into different classes 
 of shares, e.g., jireference and ordinary, it was not uncommon to recon- 
 struct with a view {inter alia) to converting all the shares into shares of 
 uniform character. For this purpose the relative value of the shares in 
 the old company (as a going concern) was approximately ascertained, 
 and the agreement provided for the allotment of the shares in the new 
 company accordingly, e.g., two for every preference, and one for every 
 ordinary share. So, too, when there were different classes of shares, and 
 the company desired to reconstruct {e.g., to extend its powers), it was not 
 uncommon to adopt a scheme under which the capital of the new
 
 556 
 
 EECONSTEUCTION. 
 
 company was similarly divided, and the memljers placed as far as possible 
 in the same position in the new as in the old company. 
 
 The notion was that any arrangement approved by special resolution 
 was valid, even though it might give a particular class of shareholders 
 less than they would have got if the sale had ])een for cash ; for it was 
 considered chat dissentients were sufficiently protected hy being enabled 
 to claim the value of their interests as provided by s. IGl. 
 
 However, in Griffith v. Paget, (5 C. D. 894 : G C. D. 514), the Master 
 of the Rolls was of opinion that this could not have been the intention 
 of the Legislature, because there might Ijc lunatics, infants, persons 
 beyond the seas, and others unable to dissent in the prescribed manner. 
 And if this be so, it follows that such arrangements as those above- 
 mentioned cannot be carried out except with the consent of every member 
 of the prejudiced class. 
 
 No doubt if s. 161 enables the members to determine the mode of 
 distribution, the position of lunatics and others may be prejudiced, but 
 the same result might, it would seem, ensue upon a sale undoubtedly 
 valid, e.g., in consideration of shares only in part paid up. Such shares 
 might be quite unmarketable and yet a lunatic might not be able to 
 dissent. jNIoreover, in Re City and County Investment Co., 13 C. D. 
 475, it was held by the Court of Appeal (Jessel, M. R., & James & 
 Baggallay, L.JJ.) that where a sale has been made under s. IGl, it is, in 
 the absence of fraud, yalid, even as against creditors, unless a winding- 
 up order is made within a year. Yet there might in such case be 
 lunatic and other creditors who could not apply for a winding-up order 
 within the year, and yet might be seriously prejudiced. AVhy should 
 the legislature be supposed to regard more carefully the interests of 
 lunatic members than those of lunatic creditors ? 
 
 It is submitted that it would not be unreasonable to assume that the 
 legislature (considering that the rights of a inembcr who might think 
 himself prejudiced l)y a sale were sufficiently protected by giving him 
 power to insist on his interest being purchased) did intend l)y s. IGl to 
 enable the majority to sell and to authorise the distril)ution of the 
 shares, &c., on any terms they thought fit, and that the possibility 
 of there being lunatics and others incapable of dissenting may be re- 
 garded as a caxus onmsKs. 
 
 To meet the difficulty a clause as above, p. 1G7, CI. 155, is now 
 Tcry commonly inserted. ^Moreover, where the reconstruction is carried 
 out under the direction of the Court it appears to be considered that the 
 Court is not so fettered, and accordingly it may sometimes be deemed 
 expedient to take a supervision order. 
 Time to By s. IGl of the Act meml)ers who dissent from the special resolution 
 
 are allowed seven days from the date of the meeting at which it was 
 passed, i.e., the second meeting, within which they must give notice of 
 dissent. For form of notice, see wfra, p. 5G4. 
 
 The notice of dissent should not merely express dissent but should 
 also refpiire the liquidators either to abstain from carrying the resolution 
 
 dissent.
 
 INTRODUCTORY NOTES. 
 
 557 
 
 into effect or to purchase the member's interest. In re Uaion Banlc of 
 Kingston-iqwn-HnU, lo C. 1). 808. 
 
 If a dissentient member fails to give sucli notice, lie must either Failure to 
 acce])t the benefit offered him by the reconstruction, i.e., he must become ^'.^*^ ^^^^<^^ of 
 
 *^ . "^ . . ' dissent. 
 
 an assenting member, or else he entirely loses his beneficial interest in 
 
 that company ; for although he will remain entitled to his shares in 
 
 that company, yet they are shares in a mere husk, for the whole of the 
 
 assets of the old company are made over to the new company. 
 
 It was at one time contended that if a dissentient member did not Dissentient 
 
 express his dissent Anthin the prescribed period he was bound by the ^^°* bound to 
 
 , ,, ,11 ,,.. take shares in 
 
 sale or arrangement, and was consequently under an obligation to accept new company. 
 
 any shares or other interest in the purchasing company, which were 
 there])y to be allotted to him ; but this notion was very soon exploded, 
 and it is now settled that the provision in .Section Kil, that the sale 
 shall l^e binding, merely means that a diss'jntieiit meml>er cannot 
 impeach the sale. He must either assent or dissent in the prescribed 
 manner, or simply lose. Loss case, 13 AV. R. 88o ; 34 L. J. Ch. Go9 ; 
 Hitjffs case, 2 H. & M. G.37 ; Jlartiiis case, 2 H. & ]\I. G(il) ; Fox's case, 
 <) Ch. 183 ; Soutliall v. British Mutual Life Assurance Soc, Ch. G14. 
 But see Griffith v. Paget, o C. D. 894 ; G C. T). oU. 
 
 Where any question arises as to whether a memljcr has dissented in 
 time, application can be made to the Court to decide the point under s. 
 138 of the Act: Re Union Bank of King sfon-upon- Hall, 13 C. L). 8(i8. In 
 the case last mentioned, the application was by motion, but the following- 
 order was made in a similar case upon an application by summons : — 
 
 Upon the application of and , the liquidators of the above-named Order on 
 
 comxDany, that the Court might determine whether F. of , was a member summons as to 
 
 of the company who had in manner mentioned in s. 161 of the Companies Act, dissentient. 
 
 18G2, expressed his dissent from the special resohition i^assed by the company 
 
 on the 2Gth of June last, and confirmed on the 13th July last, in wi-itino- 
 
 addressed to the liquidators of the said company or one of them, and left at 
 
 the registered office of the comi^any not later than 7 days after the date of the 
 
 meeting at which such special resolution was passed, and that in case the Court 
 
 should decide that the said F. has so expressed his dissent, the applicants, as 
 
 such liquidators as aforesaid, might have 11 days' notice, from the date of 
 
 such decision, to appoint an arbitrator consequent upon the notice of the said 
 
 F., dated the 27th Dec. 1877, and that the said F. might be ordered to pay the 
 
 costs of such application, and upon hearing the solicitors for the applicants 
 
 and for the said F., and upon reading, &c., the judge being of opinion that the 
 
 shareholder F. is not a dissentient, within the meaning of the said section, doth 
 
 order that the said F. pay to the applicants their costs of and consequent of the 
 
 application [to be taxed]. Direct United States Cable Co., M. E., 2G Feb. 1878. 
 
 A. 579. 
 
 A member who has duly dissented is entitled to have the purchase- Payment to 
 money for his interest paid to him ; and, when it has been ascertained, 'l'*^*entient. 
 he has aright of action against the company. Be Rosaz v. Angh-Balian 
 Banlc, 4 Q. B. 4G2. 
 
 The price to be paid to dissentients is in default of agreement to be ^.rbitration. 
 ascertained by arbitration, but if the articles contain provisions for
 
 558 
 
 EECONSTEUCTION. 
 
 luterest. 
 
 "Whence fund 
 to jjay dis- 
 sentients to 
 come. 
 
 Security of 
 dissentients 
 must be 
 regarded. 
 
 Notice callinf 
 meetings to 
 pass special 
 resolution. 
 
 arbitration, it is not necessary to resort to the Companies Clauses Con- 
 solidation Act, 184:5, as provided by Section 162 of the Act of 1802 : 
 the arbitration should proceed in accordance "with the articles. S. C. 
 
 No interest is payable upon the purchase money until the amount has 
 been ascertained and a demand for payment made. In re United States 
 Cable Co., 48 L. J. (165. 
 
 A dissentient member whose interest has been purchased under s. 1(»1 
 does not thereliy escape from liability towards the creditors of the com- 
 pany which is being- wound up. Vining's case, C Ch. GOl. 
 
 But it would seem that if a winding-up order is not made within 
 a year, the members of the sellina: company cease to be under any 
 liability to the creditors. In re City and Cotinti/ Lwestnient Co.y 
 13 C. D. 475. 
 
 As to the source from whence the funds to pay dissentient members are 
 to come : according to the above plan the new company is bound by the 
 agreement to provide them. It is necessary to impose this obligation 
 on the new company because, by the agreement, the old company is to 
 sell atl its property. 
 
 A mode of reconstruction sometimes adopted is to provide by the 
 agreement for the allotment of the share consideration to the liquidators 
 or their nominees, instead of to the members directly, and not to insert 
 any provision requiring the new company to pay the dissentients. The 
 special resolution of the old company in such case, besides sanctioning- 
 the agreement, will direct the liquidators of the old company to raise the 
 funds to pay dissentients by the sale of a sufficient number of the shares 
 in the new company to be allotted pursuant to the agreement, and to 
 distrilmte the residue of such shares among the assenting members. 
 But the former is the most convenient plan. The result in either case 
 is the same. 
 
 Care should be taken so to frame the agreement that dissentient mem- 
 bers shall have sufficient security for the payment of the purchase-money 
 for their interests ; otherwise there will be risk of legal proceedings. 
 See infra, Form 723, cl. 8, and In re Hester & Co., 44 L. J. N. S. 757 ; 
 W. K, 1875, 179. 
 
 "\'\Tiere the selling company has uncalled capital it would seem from 
 the above case that such a clause is unnecessary. It may, however, be 
 doubted how far this is consistent with the principles laid down in Clinch 
 V, Financial Corporation, 4 Ch. 120, and infra, p. 577. 
 
 The validity of a special resolution sanctioning a sale or arrangement 
 under Section IGl, essentially depends on the sufficiency of the notices 
 given convening the meetings. They ought to give the members either 
 direct or indirect notice that the transaction is to be effected under Sec- 
 tion IGl. Imperial Bctnk of China, ^-c, v. Banlc of Hindustan, <{r., (>' 
 Eq. 91 ; Fox.s Case, G Ch. 17G. A notice which states {^inter alia) that 
 a resolution is to be proposed authorising the liquidators to sell the assets 
 to another company and to accept comjwnsation in shares is probably 
 sufficient ; but the usual plan now is to refer expressly to Section IGl.
 
 INTROUUCTOEY XOTES. 
 
 159 
 
 This precludes all doubt. Of course, the refereuce to Section IGl may 
 be either in the notice or in the accompanying- circular (if any). 
 
 The agi'eement with the new company must, if it provides for the As to filing 
 issue of paid up shares, be filed pursuant to the 25th Section of the Com- '''s^'^*^'"^^*- 
 panics Act, 1807. See supra, p. 11. 
 
 It is also not unusual, and seems expedient, to file subsequent agree- 
 ments between the new company and the members of the old company 
 to whom shares are allotted specifying the shares allotted. 
 
 However, it may be expedient to file a subsequent agreement to identify 
 the shares allotted to each member of the old company. See supra, 
 p. 12. 
 
 The liquidators, in a winding, up for the purpose of reconstruction, Kemnneration 
 generally act without remuneration, or for a small fee. °^ liquidators. 
 
 A comjiany cannot, by an alteration in its articles, made in conteni- Alteiatiou of 
 plation of a winding u}) and proceeding under Section IGl of the Act, aeroo-ation of 
 deprive dissentient members of the right given them by that Section. Hglits of dis- 
 Ex parte Fox, () Ch. ITC. There seems, however, no reason why the ^^'^*^'*^'^*^' 
 rights of dissentient members, luider Section IGl, should not be restricted 
 by the articles as originally framed. See supra, p. IGG. 
 
 Where the special resolution sanctioning an agreement for a sale under Confirmation 
 Section IGl is invalid for want of proper notice, the transaction can, ^gyQl^Jtio'il 
 nevertheless, be confirmed. Fox's Case, G Ch. 17G. In order to effect 
 this, the liquidators must call the necessary meetings and procure the 
 members to pass proper special resolutions. 
 
 It will be remembered that Section IGl provides that if an order be Order to wind 
 made within a year for the winding up the company by or subject to "!'• 
 the supervision of the Court, the resolution shall not be of any validity 
 unless sanctioned by the Court. 
 
 Any company not formed or ix'gistcred under the Act of 1862, but Company may 
 which is capable of being registered under that Act, mav effect a recon- i"eg|«ter with 
 
 '■ ^ , ^ ^ ^ a view to re- 
 
 struction under Section IGL In order to do this it will register under construction. 
 the Act, and the reconstruction may then be carried into effect as abo^e 
 mentioned. It is no objection that the registration was made expressly 
 with a view' to winding up and selling under Section IGl. Souihall v. 
 British Mutual Life Assurajice Socipty, G Ch. G14, C. A. 
 
 Section IGl is only applicable in a purely voluntary winding up. Re Reconstruction 
 Haforcl Hotel, W. N., 1868, 8G. But in a\vinding up by or under the j^" '^j^'J^Jj.^s "i> 
 supervision of the Court a reconstruction may be effected by a sale under 
 Section 95 of the Act to a new company, for under that Section the 
 Court has powers at least as extensive as those conferred by Section IGl 
 on a liquidator. In re Agra and 3Iasterman''s Bank, 12 Eq. 409 ; 15 
 "W. R. 554; Imperial Mercantile Credit Association, 12 Eq. 504; 
 Cambricm Co., 38 L. T. 1G4. AYhere a company gets into difiiculties a 
 reconstruction and an arrangement with creditors under the Act of 1870 
 are not uncommonly effected at the same time. See infra, "Arrange- 
 ments.
 
 FOEMS. 
 
 Form 723. AGREEMT between Liqs of Old Co and New Co with a view to the 
 Recoxstruction of the Old Co. 
 
 Agreement 
 with a view to 
 reconstruction. 
 
 Parties. 
 
 Eecitals. 
 
 Agreement 
 for sale. 
 
 AN AGREEMT made the day of 
 
 (hereinafter called the old co) and 
 
 between the A. Co, Limtd 
 
 and , the liqs thereof, of 
 
 the one pt, and the A. Co, Limtd (hereinafter called the new co) of the 
 other pt. 
 
 AYhas the old co was incorporated in the year under the Cos 
 
 Acts, 18G2 and 18G7, with a nominal capital of 1 00,000/., divided into 
 ] 0,0(10 shares of 10/. each ; Axu whas the whole of the sd shares have 
 been issued and the sum of 5/. per share stands credited iu the books of 
 the old CO as having been pd up thereon ; Axd w^has by special resolu- 
 tion of the old CO passed and confirmed at extraordinary general meet- 
 ings thereof, held respively the day of and the day of 
 
 , it was resolved (1) That the co should l^e wound up voluntarily 
 
 and that the said and should be and they were thereby ap- 
 pointed liqs for the pposes of such winding up. (2) That the sd liqs 
 should be aud they were thereby authorised to consent to the registra- 
 tion of a new co to be named The Co, Limtd, with a memorandum 
 
 and articles of association as therein mentd ; and {?>) That the draft 
 agreemt in the resolution referred to (being the draft of these presents) 
 sliould be and the same was thereby approved, and that the sd liqs should 
 be and they were thereby authorised to enter into an agreemt with such 
 new CO (when incorporated) in the terms of the sd draft and to carry the 
 same into eifect : Axd whas, pursuant to the resolution afsd, the new 
 CO has since been incorporated uuder the Cos Acts, 18G2 to 1880, with 
 a nominal capital of 50,00(»/., divided into 10,000 shares of 5/. each : 
 AxD WHAS by the articles of association of the new co, it is provided 
 that the same co shall forthwith execute the agreemt therein referred to, 
 being these presents : Noav it is hereby agreed as follows : 
 
 1 . The old co and its liqs shall sell, and the new co shall pchase : all 
 and singular the goods, chattels, monies, credits, debts, bills, notes, and 
 things in action of the old co, and the undertaking, business, and good- 
 will thereof, with the full benefit of all contracts and agrecmts, and of 
 all securities in respect of the sd things in action, to which the old co is 
 cntled, and all other the real and ]wrsonal ppty of the old co whatsoever 
 and wheresoever ; subject nevertheless as to all the sd premes to the
 
 FORMS. 561 
 
 several mtges, charges, liens, and incumbrances affecting the same or any F orm 723. 
 pt thereof. 
 
 2. As a pt of the conson for the sd sale the new co shall pay, satisfy, New company 
 and discharge all the debts, liabilities, and obligations of the old co &crof'oUl ^' 
 whatsoever, and shall adopt, perform, and fulfil all contracts and company, 
 engagemts now binding on it, and shall at all times keep the old co, its 
 
 liqs, and contribs, indemnified against such debts, liabilities, obligations, 
 contracts, and engagemts and against all actions, proceedings, costs, 
 damages, claims, and demands in respect thereof. 
 
 3. As a further pt of the conson of the sd sale, the new co shall pay New company 
 
 , . ,. , •! • J to pay costs 
 
 and at all times hereafter keep the old co, its liqs, and contribs, mdem- <,£ binding up 
 
 nified against all the costs and expenses of and incident to the winding old company. 
 
 up of the old CO, and of carrying the sd sale into effect. 
 
 4. As the residue of the conson for the sd sale every member of the ^l^^u'es m new 
 
 • 1111 1 • 1 1 J. company to 
 
 old CO shall, in respect of each share therein held by him, be entled to be allotted to 
 
 require the new co to allot to him, or to his nominee or nominees, one members of 
 
 ^ . , old company. 
 
 5L share in the new co with the sum of oZ. credited as having been pd up 
 
 thereon, and any member of the old co who shall take the benefits by 
 this clause offered to him, shall accept the same in full satisfon and dis- 
 charge of all claims and demands in respect of his interest in the assets 
 of the old CO. 
 
 Suppose the shares in the old company to be lOL, fully paid-up, and that it 
 is desired to return 5L per share to the members. In such case^ if the new 
 company is to have power to call up the amount again, the clause will provide, 
 that every member, &c., shall be entitled, &c., " to require the new company to 
 pay to him the sum of 5L in cash, and to allot to him or to his nominee or 
 nominees one 101. share in the new company, with the sum of ol. credited as 
 having been paid up thereon." If the new company is not to have power to 
 call up the 51. again, the shares will be ol. each, and will be allotted as fully 
 paid up. Of course, instead of casli, debentures or other securities may be 
 issued. 
 
 Sometimes where the shares in the selling company are not all paid up, the 
 latter part of Clause 4 above runs thus : " With the same amoimt credited as 
 paid up thereon as stands credited in the books of the old company as having 
 been paid up on the share in respect whereof the same is allotted." 
 
 And sometimes the claiise is expressed thus : " As the residue of the con- 
 sideration for the said sale, the new company shall allot shares in the 
 
 capital of the new company in such manner as the liquidators of the old com- 
 pany shall direct, to the intent that such shares shall be divided as nearly as 
 may be among the members or contributories of the old company, according to 
 their rights and intei-ests in the assets of that company." 
 
 Where the agreement provides for the allotment of the shares to the liqui- 
 dators, and such shares are only to be in part credited as paid up, it may be 
 •well to insert a clause providing that "The liquidators of the old comimny 
 shall not be bound to accept an allotment of any of the shares mentioned in 
 
 clause hereof, which they shall not reqmre for allotment to the members 
 
 of the old company, in accordance with that clause," or to provide that the 
 allotment shall be made " upon the request " of the liquidator. Unless this is 
 done, it may be contended that the liquidator is bound personally to take the 
 shares, and this might involve him in liabilities. Dijett's case, 43 L. T. 85. 
 
 Griffith v. Paget, 5 C. D. 894, should be borne in mind. See supra, p. 556. 
 
 O O
 
 5G:2 
 
 EECONSTEUCTION. 
 
 Form 723. 
 
 Provision for 
 payment of 
 ilissentients. 
 
 Delivery. 
 
 5. If the liqs of the old co shall, in order to carry the sd sale into 
 effect, have occasion to pchase the interest of any member of the old co, 
 then and in every or any such case the new co shall be relieved from the 
 oblig-ation imposed on it by Clause 4 hereof as regards such member, bun 
 shall pay to the liqs for the pposc of effecting such pchase such sum as, 
 by arbitration between the old co and such member, or by agreemt made 
 with the sanction of the new co between him and the liqs of the old co, 
 shall l)e determined to be the price payable in respect of such pchase. 
 Title acceptea. G. The new CO shall accept, without investigation, such title as the 
 old CO has to all the real and personal ppty and premes agreed to be hby 
 sold. 
 
 7. The old co and its li(|S shall, as soon as conveniently may be (but 
 without prejudice to Clause 8 hereof), execute and do, at the expense of 
 the new co, all such assurances and things as shall be reasonably re- 
 quired by the new co for vesting in it the sd ppty agreed to be hby sold, 
 or any pt thereof, and giving to it the full benefit of this agreemt ; and 
 in the meantime (subject as afsd), the old co shall stand possessed of the 
 ppty agreed to be hby sold in trust for the new co, and it shall be lawful 
 for that CO in the name or names of the old co or its liqs, but keeping 
 them indemnified against all costs and damages which might arise 
 thereby, to bring, take, and defend actions and proceedings, and to do 
 all other things which shall be necessary or expedient for obtaining the 
 full benefit of the sd sale. 
 
 8. Provided always that the old co and its liqs shall have a lien upon 
 the whole of the ppty agreed to be hby sold for all monies (if any) 
 payable by the new co under Clause 5 hereof, and until the same shall 
 have been pd the sd liqs shall be at libty to retain possession of all or any 
 pt of the sd ppty, and thereout at their discretion to raise and pay such 
 monies or any pt thereof. 
 
 As to this clause, see siqna, p. 558. 
 
 Lien in favour 
 of dissentients, 
 
 Powei' t(, 
 rescind. 
 
 9. Notwithstanding anything herein contd, if, in order to carry the sd 
 sale into effect, it would be necessary for the liqs to pchase the interests 
 
 of members holding more than shares in the old co, the new co 
 
 shall be at libty by notice in Avriting, addressed to the liqs of the old co 
 and left at the registered office of that co, to rescind this agreemt. 
 
 Tliis clause is not at all unusual. There might hapjjen to be so many dis- 
 sentient members of the old company that the new company could not find the 
 means to pay them off, and in such case it is convenient to give a power of 
 rescission. 
 
 Agreement 
 not to operate 
 as conveyance. 
 
 10. These presents are intended to operate as an agreemt only, and 
 not as a conveyance, transfer, or assigumt. 
 
 This clause is frequently used in svich agreements presumably in order to 
 prevent any doubt whether the instrument is liable to ad valorem duty as a 
 conveyance or transfer of any part of the property. See Tilsley, 188 et seq. 
 But it seems clear that such an agreement covild not be held a conveyance 
 -within the Stamp Act, 1870. See supra, p. G.
 
 FORMS. 563 
 
 An arbitration clause is sometimes inserted, although some doubt has been Form 723. 
 
 felt as to its validity. However, in Southall v. British Midual Life Assurance ~' " 
 
 Soc, 6 Ch. G14, James, L. J., was of opinion that an arbitration clause did not 
 invalidate an agreement for a sale pursuant to s. 161 of the Act, and Hel- 
 lish, L. J., concurred. 
 
 11. Until the dissolution of the old eo, the new co shall, at its own 
 expense, produce and show at such times, and to such persons, and in 
 such places as the liq for the time being of the old co shall require, all 
 the books, documts, and papers of the old co agreed to be hbj sold. 
 
 A clause as above is sometimes inserted and appears desii'able. Silber Co., 
 12 C. D. 717. 
 
 Tn witness whereof the sd cos have caused their respire common 
 seals to be hereunto afhxed, and the sd liqs have respivelj set their 
 hands hto, the day and year first above written. 
 
 The resolutions in the above case would be as follows : 
 
 (1.) That the co be wound up voluntarily, and that A. B. and C. D. Form 724. 
 be, and they are hby appointed liqs for the ppose of such ^vinding up. p , , • I ' 
 
 (2.) That the sd liqs be and they are hby authorised to consent to the with a view 
 registration of a new' co, to be named The A. Co, Limtd, with a memo- *° ^'®™"" 
 
 ® .... stniction. 
 
 randum and articles of association which have already been prepared 
 with the privity and approval of the directors of this co. 
 
 (3.) That the draft agreemt submitted to this meeting and expressed 
 
 to be made between this co and its liqs of the one pt, and The Co, 
 
 Limtd, of the other pt, be, and the same is hby approved, and that the 
 sd liqs be, and they are hby authorised to enter into an agreemt with 
 such new co (when incorj)orated) in the terms of the sd draft, and to 
 carry the same into effect. 
 
 In some cases it is thought expedient to frame the first resolution thus : 
 " That it is desirable to reconstruct the company, and that, ^vith a view 
 thei-eto, the company be wound up, &c." [as above]. 
 
 Where the new company is not to bear the same name as the old company, 
 resolution (2) can be varied. Sometimes it is resolved "that the liquidators be 
 authorised to consent to any variation in the terms of the agreement which 
 they may think fit," and occasionally " the liquidators are authorised to trans- 
 fer or sell the whole or any part of this company's business and property to 
 any other company, and to receive, in compensation or part comj^ensation for 
 such transfer or sale, shares in such company, or to enter into any other ar- 
 rangement whereby the members of this company may, in lieu of receiving 
 cash, shares, or other like interests, or, in addition thereto, participate in the 
 profits of or receive any other benefit from such other company." 
 
 Sometimes the authority is " to make or enter into any such sale or ari-ano-e- 
 ment as is contemplated by s. 161 of the Companies Act, 1862, and in particular 
 
 to enter into an agreement with The Company Limited, for the sale to 
 
 that company of this company's business and assets upon the terms set forth in 
 the draft agreement submitted to the meeting." 
 
 The following is an example of the form of notice to be used where a member 
 dissents pursuant to s. 161 of the Act. 
 
 o o 2
 
 564 RECONSTEUCTION. 
 
 Form 725. In the matter of the Companies Act, 18(!2. 
 
 Notice of And in the matter of The Co, Limtd. 
 
 dissent pur- To and , the liqs of the above-named co. 
 
 s. 161, Take notice that I dissent from the special resolutions of the co 
 
 passed and confirmed at general meetings thereof, held respively on the 
 
 day of and day of . And I hby require you either 
 
 to abstain from carrying such resolution into effect, or to pchase the 
 interest in the sd co held by me, at a price to be determined in accord- 
 ance with Section 102 of the above-mentd Act. 
 
 Dated, &c. A. B. of . 
 
 See Union Bank of Kingston, 13 C. D. 808 ; Anglo-Italian Bank v. De Rosaz, 
 L. E. 2 Q. B. 452 ; De Rosaz v. Anglo-Italian Bank, L. E. 4 Q. B. 462, and 
 supra, pp. 556, 557. 
 
 Form 726. AGREEMT for Reconstruction sanctioned by the Ct in the 
 Winding-up of The Imperial Mercantile Credit Association. 
 
 The following is a, copy of an agreement which was sanctioned by the Court 
 of Chancery. See In re Imperial Mercantile Credit Association, 12 Eq. 504. It 
 was framed with the greatest care, and has since served as the basis of many 
 other reconstruction agreements. 
 
 Parties. ARTICLES OF AGREEMT under seal made the 19th day of July, 
 
 1871, between Sir W. J., of , W. M., of , F. F., of , and 
 
 A. C. S., of , of the one pt, and the Imperial Credit Co, Limtd, of 
 
 Kecitals. the other pt : Whas the Imperial Mercantile Credit Association, Limtd 
 
 (hereinafter called the old co), has a nominal capital of 5,000,000/., 
 divided into 100,000 shares of 50/. each : And whas a special resolu- 
 tion for the voluntary winding-up of the old co was passed and confirmed 
 at general meetings thereof, held respively on the 28th day of May and 
 the l-lth day of June, 18GG ; And, by an order of his Honour the then 
 Vice-Chancellor Wood, made on the 2Gth day of June, 1800, it was 
 ordered that the sd voluntary winding-up should be continued, but sub- 
 ject to the supervision of the High Ct of Chancery : And whas by calls 
 made partly before and partly under the sd winding-up, the shares in 
 the old CO have been called up to the amount of 27/. lOs. in all, leaving 
 22/. 10s. per share still uncalled thereon : And whas by means of such 
 calls, of the assets realised, and of temporary loans made to the old co or 
 its liqs, the debts proved against or admitted by the old co, other than 
 those due in respect of such loans, have all been paid, except so far as 
 any of the creditors of the old co have omitted to receive any of the in- 
 stalmts which, however, are lying ready to be pd them : And whas the 
 old CO is under a liability to provide certain sums of money for the com- 
 pletion of certain railway works in which it is interested : And avhas at 
 the sd meeting of the sd shareholders of the old co, held on the 14th day 
 of June, 1800, a committee was appointed for the ppose of assisting and 
 advising the liqs in the administration of the estate of the old co ; and 
 such committee is now composed of the parties hto of the former pt : 
 And whas by a circular addressed to the sd shareholders, and dated the
 
 FOEMS. 
 
 565 
 
 Gtli day of July, 1870, the sd committee proposed the formation of a Form 726. 
 new CO, which should take over the assets of the old co remaining un- "" 
 
 realised, according to a plan explained in the sd circular : And whas 
 by a resolution passed unanimously at a meeting of the sd shareholders, 
 held on the 4th day of July, 1870, the sd plan was approved of, subject 
 to such modifications in the details as the sd committee might sanction ; 
 And a very large number of the sd shareholders also individually signi- 
 fied their approval of the same plan, subject to such modifications as 
 afsd : And whas, after applicon had been made to the High Ct of 
 Chancery for its sanction of an agreemt intended to carry the sd plan 
 into ettect, certain modifications were made in that agreemt, which, 
 as so modified, was approved by a special resolution of the old co, 
 passed and confirmed at general meetings thereof, held respively on 
 the 12th and 31st days of May, 1871 : And whas upon the further 
 hearing of the sd applicon on the 12th day of June, 1871, the Vice- 
 Chancellor Bacon, to whose branch of the High Ct of Chancery the 
 winding-up of the old co is attached, approved of the sd agreemt as so 
 modified : And whas the Imperial Credit Co, Limtd (hereinafter called 
 the newco), has since been incorporated under the Companies Acts, 18G2 
 and 1867 ; and the parties hto of the former part, acting so far as they 
 lawfully may on behalf of the old co, have entered into this agreemt, 
 the terms of which correspond with those of the sd agTcemt so approved 
 as afsd, and intend to apply for the sanction of the High Ct of Chancery 
 to be formally given it : Xow these presents witness that it is hby 
 mutually agreed as follows : — 
 
 1. The parties hto of the former pt do not in any case personally The agreement 
 undertake any liability hereunder, nor shall the new co be bound hby ^^ conditional, 
 further than as this agreemt, either as it now stands or with any modifi- 
 cations, shall by the High Ct of Chancery be sanctioned and ordered to 
 
 be carried into effect by the liqs of the old co. 
 
 2. Subject to the foregoing condition as to the binding force of this Agreement to 
 agremt, the old co shall sell to the new co which shall pchase : All and ^^^• 
 singular the real and personal, and heritable or moveable, ppty, eflFects, 
 
 and things in action belonging to the old co, of what nature or kind 
 soever, and wheresoever situate or recoverable, together with the full 
 benefit of all securities, real or personal, heritable or moveable, held by 
 the old CO for any of the said things in action ; such sale expressly in- 
 cluding all cash balances in the hands of the old co or of its liqs, or at 
 the credit of any banking account of the sd liqs, all arrears of calls on 
 the shares of the old co up to the said amount of 27/. K's. per share, and 
 all sums of money recoverable on the ground of misfeasance or breach 
 of trust (a) from any directors of the old co or other persons, whether 
 the same be or not the subject of any Chancery suit now pending, but 
 saying and reserving to the old co its uncalled share capital, and to the 
 sd liqs the power in the meantime before this agreemt shall have become 
 binding on them, at their discretion, to realise for the ultuuate benefit of 
 the old or new co, as the case may be, all or any pt of the ppty, effects,
 
 566 
 
 EECONSTEUCTION. 
 
 Form 726. and things in action liby agreed to be sold, or the securities for the 
 '- same. 
 
 (a) Where, upon a reconstruction, the old company had transferred to the 
 new one all its " property, estates, and effects, with the appurtenances," includ- 
 ing a mortgage, " with the benefit of all securities " for the amount due, it was 
 held that a right of action which the old company had against one of its 
 directors for breach of trust, in respect of the mortgage, did not pass to the 
 new company. Neiv WesUninster Brewery v. Hannah, W. N. 1876, 215 ; affirmed 
 on appeal. But see Parkgate Wagon Co., 17 C. Div. 234, where very similar words 
 were held to pass a claim against the directors. 
 
 Delivei'y. 
 
 Debts of old 
 company to 
 be paid by 
 new one. 
 
 Costs of wind- 
 ing up of old 
 company. 
 
 Account to be 
 kept of pro- 
 ceeds of 
 realisation. 
 
 3. The old co and its liqs, immediately on this agreemt becoming 
 binding on them, shall deliver to the new co all such pts of the sd 
 ppty, effects, things in action, and securities as shall be capable of 
 delivery, and they shall, at the cost of the new co, execute and do all 
 such conveyances, assignmts, power of attorney, instrumts, and things, 
 as the new co shall from time to time reasonably require for carrying 
 the sd sale into effect, either as to the whole or as to any pt or pts of 
 the ppty, effects, things in action, and securities, herein comprised, the 
 same to be settled, in case of difference, by and in the chambers of the 
 judge to whose branch of the [High Ct of Chancery] the winding up of 
 the old CO is attached ; and, in the meantime, it shall be lawful for the 
 new CO, in the name or names of the old co, or its liqs, but keeping 
 them indemnified against all costs and damages which might arise 
 thereby, to bring and defend actions and suits, and do all other things, 
 either in England or elsewhere, which shall be necessary or expedient for 
 obtaining the full benefit of the sd sale. 
 
 4. As a pt of the conson for the sd sale, the new co shall satisfy all the 
 outstanding debts and liabilities of the old co (including the temporary 
 loans afsd) ; as to the sd loans, by paying the same according to the 
 tenns on which they have been respively granted ; as to any instahnts 
 which any creditors of the old co may have omitted to receive, by paying 
 the same when and as the same shall be duly demanded ; as to such 
 debts (if any) of the old co as have not yet been established, by paying 
 the same when and as they shall be duly established ; and as to all 
 liabilities of the old co to provide any sums of money for the completion 
 of any railway or other works, and all such other liabilities (if any) of 
 the old CO as have not yet been converted into debts, by discharging the 
 same when and as they shall mature ; And the new co shall at all times 
 keep the old co and its liqs indemnified against the loans, debts, and 
 liabilities hby agreed to be satisfied by the new co, and against all costs, 
 charges, and expenses in respect thereof. 
 
 5. As a further pt of the sd conson the new co shall pay, and at all 
 times keep the old co and its li(js indemnified against all the costs and 
 expenses, whether past or future, of the winding up of the old co. 
 
 6. The amount of all monies which shall be received by the new co 
 from the sale or getting in of or otherwise from or on account of any and 
 every the ppty, effects, and things in action hby agreed to be sold,
 
 FORMS. 5(57 
 
 together with interest at the rate from time to time allowed by the Form 726, 
 
 London and Westminster Bank on deposits, to be computed according 
 
 to the practice adopted by the London joint-stock banks with cuiTent 
 
 accounts, on the minimum credit balance, during each calendar month 
 
 of the account by the present clause directed, shall be carried to the 
 
 credit of an account to be kept by the new co, l)ut without prejudice to 
 
 the right of the new co, as o^viiers, to manage, sell, get in, compound, 
 
 release, and otherwise act at its absolute discretion with relation to the 
 
 sd ppty, effects, and things in action hby agreed to be sold, nor shall the 
 
 new CO be under any obligation to preserve, set apart, or specifically 
 
 account for, any monies of which the amount shall be carried to the 
 
 credit of the sd account, but the applicon of the credit balance of such 
 
 account as hereinafter declared shall only create a liability on the pt of 
 
 the new co in the natm-e of a personal liability to credit or pay the 
 
 amount so to be api:)lied. 
 
 7. On the debit side of the account directed by the last preceding what items 
 clause, there shall be entered all monies pd by the new co under ^'^ 'f,®."*^rf' 
 
 on debit side 
 
 Clauses 4 and 5 hereoi, and all costs, charges, and expenses mcuiTed by of acrouut. 
 the new co in or incidental to managing and realising the assets hereby 
 agreed to be sold, including such fair proportion of the salaries pd 
 by the new co, and of their office and other expenses, as may be properly 
 attributable to such realisation ; and in case the new co shall deem it 
 advisable for the completion of any railway or other works in which the 
 old CO is interested, or otherwise for the improvemt of any assets hby 
 agreed to be sold, to make any advances or investmts which the old co is 
 now under liability to make, then the amount of every such advance or 
 investmt shall be debited, and the rej)aymt thereof or the returns there- 
 from shall be credited, in the sd account as if the old co had been under 
 liability to make the same ; and on all monies debited in the sd account 
 interest shall also be debited, until the repaymt thereof by means of the 
 sd account, at the rate of 5 p. c. p. a. or such higher rate as may be 
 1 p, c. above the minimum rate of discount at the Bank of England for 
 the time being. 
 
 8. Subject to reasonable provision being made for contingencies in Provision of 
 respect of paymts which may subsequently have to be debited with the peno^icai 
 sd account, the credit balance of the sd account (hereinafter called among 
 the surplus) shall, from time to time, as the residue of the conson members of 
 for the sd sale, l)e divided and pd among and to the contribs 
 
 entled to participate, and in the proportions in which they shall be 
 entled to participate in the assets of the old co remaining after paymt of 
 its debts. 
 
 9. Nevertheless, every such contributory shall be entled to require Option to 
 the new co to allot to him one of its shares, of the nominal amount contnimtones 
 
 ' _ _ to take sJiares 
 
 of 10/. for each share in the old co in respect of which he is entled to in new com- 
 participate in the surplus, and from time to time to credit towards the P^"-'- 
 nominal amount of the share so to be allotted, until it shall be thereby 
 pd up to the amount of 11 10s., all that proportion of the surplus to
 
 568 
 
 EECONSTEUCTION. 
 
 Form 726 
 
 Footing on 
 which shares 
 to be taken. 
 
 Shares in new 
 company 
 allotted to 
 members of 
 old one to be 
 deemed in 
 part paid up. 
 
 Issue of liqui- 
 dation certifi- 
 cates to 
 assenting 
 members. 
 
 Assenting 
 members to 
 sign acknow- 
 ledgment and 
 discharge. 
 
 How long 
 shares of new 
 company to be 
 reserved. 
 
 Assenting 
 contributories 
 liound l)y pro- 
 ceedings in 
 liquidation. 
 
 which in respect of the corresponding share of the old co he may be 
 ' entled, except so far as such proportion shall arise from periodical income 
 produced by any assets hby agreed to be sold, or hj any such advances 
 or investmts as are hinbefore permitted to be made for the improvemt of 
 assets hby agreed to be sold. 
 
 10. The acceptance of any share in the new co on the footing of the 
 last preceding clause, shall give to the new co the right of receiving, 
 from time to time, for its own benefit, and distributing by way of divi- 
 dend on its share capital, so much of that proportion of the surplus to 
 which, in respect of the corresponding share in the old co, the acceptor 
 may be entled, as shall arise from such j^eriodical income as afsd, and 
 this as well after as before the share so accepted shall have been pd up to 
 the amount of 71. lO.s. 
 
 11. The assets hby agreed to be sold, being of a value far exceeding' 
 7/. li)s. per share, every share in the new co accepted on the footing 
 of Clause 9 hereof shall, immediately, be deemed to be pd up thereby to 
 the amount of 7/. 10s., for all pposes of dividend and other^^^se, except 
 the actual paying it up to that amount out of the acceptor's jiroportiou 
 of the surplus, pursuant to the sd Clause 9 ; and the certificate to be 
 given, pending such actual paying up, for shares in the new co, accepted 
 as afsd, shall accordingly describe them as pd up to the amount of 
 71. 10s., pursuant to and subject to this agreemt. 
 
 12. To those contribs of the old co who shall accept shares in 
 the new co on the footing of Clause 1) hereof, the new co shall give 
 certificates, to be called "deferred liquidon certificates, " and to be 
 transferable by indorsemt, expressing the right of those contribs or 
 of the holders to receive from the new co, in cash, the proper proportion 
 of the surplus, so far as the same shall not arise from such periodical 
 income as afsd, and subject to the previous paymt thereout of 71. lOs. per 
 share on the corresponding share in the new co. 
 
 13. Every contriby, on receiving his certificate of shares in the 
 new CO, with corresponding deferred liquidon certificates, shall sign and 
 give to the liqs of the old co an acknowledgmt that the same are in full 
 discharge of his proportional interest in the assets hby agreed to be 
 sold. 
 
 14. The new co shall not be bound to reserve any of its shares for 
 allotmt to contribs, pursuant to Clause 1) hereof, after the expiration of 
 one calendar month from the date of the sanction of the Ct being; 
 given to this agreemt ; but so long as any such shares remain, the direc- 
 tor's of the new co may at their discretion, allot them on the terms of the 
 sd clause, but always on condition of the applicant paying up on them to 
 the new co the same amount which would have been pd up on them if 
 they had been claimed at first. 
 
 15. Every contriby of the old co who shall acce})t shares in 
 the new co, shall be bound by all paymts and allowances already 
 passed by the sd committee in respect of the expenses of the liquidon, 
 and also by all accomits of the surplus which shall from time to time be
 
 FOEMS. 569 
 
 settled between the new co and the liqs of the old co, and all questions Form 726. 
 between any such persons and the new co, Avhich shall not be capable of 
 being- determined by any accounts so settled, shall be decided on the 
 applicon of either party by tlie judge to whose Ijranch of the High Ct 
 of Chancery the winding up of the old co is attached, or, if such method 
 cannot be resorted to, by arbitration pursuant to the articles of associa- 
 tion of the new co. 
 
 10. Those contribs of the old co who sliall not accept shares in Dissentients 
 the new co on the footing of Clause 9 hereof, shall have the option of ™^J^g^"^^ 
 giving notice to the liqs, not later than seven days after the date of the iiccording^to 
 order sanctioning this agreemt, to have the price of their respive interests ^^jg^^^^. 
 settled by arbitration in manner provided by the lG2nd section of the 
 Companies Act, 18G2, and the amount of such value shall be pd by the 
 new CO to such contribs respively, within one calendar month after the 
 award of the arbitrators. 
 
 17. Those contribs of the old co who shall require an arbitration under Dissentients 
 the preceding clause shall be indemnified by the new co from all liability j°fjej.^'^'^ ^"^' 
 as contribs of the old co. 
 
 18. Those contribs of the old co who shall not accept shares in Provision as 
 
 ,, . 1 •, ,• 1 11 1 i_i • • to dissentients 
 
 the new co, or require an arbitration, shall have their respive propor- ^^,-^^^ f^^ ^^ 
 tional interests in the assets of the old co pd to them in cash, as the give due 
 same shall ft'om time to time be realised by the new co. dissent. 
 
 11). Those contribs of the old co who shall come under the terms ^g to taking 
 of Clause IS hereof, shall be entled to have the accounts of the assets of 'Accounts. 
 the old CO taken in the winding up thereof as against the liqs of the old 
 co and the new co considered as in the nature of a liq of the old co : 
 Provided always that any such advance or investmt as is provided 
 for l)y Clause 7 hereof shall, as between the new co and the last- 
 mentd contribs, be treated as made l)y the new co on account of the 
 old CO. 
 
 20. Those contribs of the old co who shall not accept arbitration whidi con- 
 under Clause IG hereof, and Avho shall not signity to the liqs their *"^'^^*°^'f *° 
 
 ' . come under 
 
 acceptance of shares in the new co within one calendar month after the clause is. 
 sanction of the Ct has been given to this agreemt, shall be deemed to 
 come under the terms of Clause 18 hereof. 
 
 21. Notwithstanding anything herein coutd, if defaidt shall be Lien in favour 
 made by the new co in the due paymt of any such loan or debt, or the tients^Tc. 
 due discharge of any such liability or paymt, as in Clauses 4, 5, IC, 17, 
 
 and IS hereof respively mentd, then, and so often as the same shall 
 happen, the liqs of the old co shall immediately acquire and enforce a 
 lien or charge on all such of the ppty, eflFects, and things in action hby 
 agreed to be sold as shall not have been preA-iously realised or converted 
 into money by the new co, and all securities for the same respively, for 
 the amount, and in trust for the paymt or discharge of the loan or debt, 
 liability or paymt, with respect to which such default shall have been 
 made, and all costs, charges, and expenses occasioned by such default ; 
 but, save as afsd, neither the ordinary lien of vendors, nor any other lien
 
 570 
 
 RECONSTRUCTION. 
 
 Form 726. or charge, shall exist in i^wonr of the old co or its creditors, on any ppty, 
 effects, things in action, or secnrities herein comprised. 
 
 As to lien, see In re Albert Life Assiirance Co., Ex parte Western Life Assur- 
 ance Co., 11 Eq. IGl, and notes to Mackreth v. Symons, White & Tudor, L. C. 
 Eq. 289. 
 
 Sureties. 
 
 How powers 
 of liquidatoi'.s 
 to be exer- 
 cised. 
 
 New company 
 to covenant 
 with creditors 
 of old one. 
 
 22. This agrecmt shall not prejudice the rights of any creditor of the 
 old CO as against any surety or person not bound by the order of the 
 High Ct of Chancery sanctioning it. 
 
 2;]. All powers hby given to the liqs of the old co shall be excerciseable 
 by any one or more of them, whate\"er may be their number, unless it be 
 otherwise expressed in the resolution or order appointing them. 
 
 24. The obligations of the new co under Clause 4 hereof shall be 
 undertaken by it, as well towards the rcspive creditors of tjie old co, and 
 the other persons in whose favour the liabilities mentd in the sd clause 
 exist, as towards the old co itself ; and immediately after the sanction 
 of this agreemt by the High Ct of Chancery, the new co shall execute a 
 deed, to be settled by the Judge iu Chambers, by which it shall covenant 
 both with the sd creditors and other persons in respect of the obligations 
 expressed in the sd Clause 4, and with the old co and its liqs, for general 
 performance by it of this agreemt. 
 
 Ix WITNESS whereof the parties hto of the former pt have hereunto 
 set their hands and seals, and the sd Imperial Credit Co, Limtd, hath 
 hereunto affixed its common seal, the day and year first above written. 
 
 In tlie case of the reconstruction of the Southport and West Lancashire Banlc- 
 'iiig Co., Limited, which suspended payment in 1881, and (a supervision order 
 having been made 16 May, 1881), was reconstructed with the sanction of the 
 Court (Jessel, M. E.), 31 July, 1881, a scheme somewhat similar to the above 
 was adopted. The provisional agreement was based on the above, and provided 
 for the making over of the assets and liabilities to a new company. The fol- 
 lowing clauses may be mentioned. 
 
 5. As a further part of the consideration for the said sale and transfer every 
 shareholder of the old company shall, in respect of each share therein held by 
 him, be entitled at any time within 1-4 days after this agreement shall have 
 T>een sanctioned by the Covirt, to reqxiire the new company to allot to him one 
 ordinary ol. share in the new company, but no sum of money shall be deemed 
 to have been paid up thereon, and any shareholder who accepts, &c. [accepts in 
 full satisfaction^. 
 
 6. The new company shall forthwith open a separate account, and to the 
 credit of such account shall place the sum of 20,000 J. as the value of the bank 
 premises and furniture at S. [&c.], and also shall place as and when received 
 the amount of all monies which shall be received by this new comjiany from 
 the sale or getting in of or otherwise from or on account of any and every the 
 property, effects, and things in action hereby agreed to be sold other than the 
 bank premises and furniture aforesaid, but the i^rovisions aforesaid shall be 
 wholly without prejudice to, and the new company shall have the right as 
 owners [supra, p. oij6, CI. G]. 
 
 7. Si 8. Closely following Clause 7, supra, p. 5G7. 
 
 i). Subject to reasonable provision being made in respect of j^ayments which 
 may subsequently have to be debited to the said account, the credit balance, if 
 any, of the said account, shall from time to time, as the residue of the consi-
 
 FOR^IS. 57-[ 
 
 deration for the said sale and transfer, be divided, paid, or credited among and Form 726 
 to the holders for the time being of such of the ordinary shares in the new com- 
 pany as shall be issued under Clause 5 hereof, rateably by way of actual dis- 
 tribution in cash, or by way of credit against calls, as the new company may 
 in all respects determine. 
 
 Clause 5 is noticeable as limiting the time for applications. Queiy, however, 
 whether it is not fairer to limit the time as from the receipt of notice of the 
 sanction of the Com-t having been given. See Form 728, infra. 
 
 As regards Clause 9 of the agreement, query whether a supplemental con- 
 tract showing which shares were allotted on the footing of Clause 5 ought not 
 to have been filed.
 
 AMALGAMATION. 
 
 Meaning of 
 "word amalga- 
 mation in 26 
 & 27 Vict. 
 c. 92. 
 
 Meaning of 
 word in fol- 
 lowing pages. 
 
 Advantages of 
 amalgama- 
 tion. 
 
 INTRODUCTORY NOTES. 
 
 The word " amalgamation " is used in several senses. In Parlia- 
 mentary language, and particularly in reference to railway companies, it 
 is commonly used in the technical sense given to it by Part V. of the 
 Railway Clauses Act, 18G3 (20 & 27 Vict. c. 1)2). 8ee further siqnri, 
 p. 87. 
 
 In the following pages the words "amalgamation" and "amalgamate" 
 are used indiscriminately to describe two operations : — 
 
 (a.) The transfer of all or some part of the assets and liabilities of 
 one or more than one existing company to another existing 
 company, of which all the members of the transferring company 
 or companies become, or have the right of becoming, members ; 
 
 (h.) The transfer of all or some part of the assets and liabilities of 
 two or more existing companies to a new company, of which 
 all the members of the transferring companies become, or have 
 the right of becoming, members. 
 
 It will be observed that (b) excludes a reconstruction as already de- 
 scribed \_siq)ra, p. 552 et seq.'], which is the transfer of the assets of a 
 single existing company to a new company. 
 
 The word " amalgamation " as used in these pages, moreover, gene- 
 rally involves the notion of the dissolution of the transferring company 
 or companies. 
 
 A large company is generally in a much better position to carry on 
 business successfully than a small one. The expense of management in 
 a small company is relatively much more burdensome than in a large 
 one, and in order to keep it down a small company is, very commonly, 
 obliged to employ directors and other officers and agents of inferior 
 business capacity. Again, the shares of a small company are, not un- 
 commonly, unsaleable, except perhaps in a local market where the 
 demand may be limited and uncertain. This places a small company at 
 a disadvantage : it may, and often does, find considerable difficulty in 
 placing its original capital, and still greater in raising any further share 
 capital. And not only has a small company difficulty in placing share 
 capital, but it has little or no chance of borrowing on debentures. 
 
 Hence it is that the amalgamation of small undertakings is making 
 considerable progress at the present day. Moreover, there is in many
 
 INTRODUCTORY NOTES. 573 
 
 cases another great inducement to amalgamation, namely the desire to 
 terminate competition. However good competition may be for the 
 pubhc, it is very often ruinous to the parties engaged in it. 
 
 An amalgamation may be effected : — 
 
 (1.) By special Act of Parliament. This mode is not very often By special 
 adopted by companies formed under the Acts of 1802 and 18G7. See ■'^*^*- 
 Private Acts, infra. 
 
 (2.) Under section ](U of the Companies Act, 18(i2. This is the Under section 
 mode now generally and successfully adopted. ■'^^^• 
 
 {?}.) Possibly under a power contained in the memorandum and Under power 
 articles, but in practice this mode is now seldom or never adopted, and ^^ ^'^'^'icles. 
 it will therefore not be necessary in this work to describe the course 
 of proceeding, or to dwell on the legal and practical difficulties which 
 are likely to result from its adoption. Sec supra, p. 87. It may, 
 however, be here observed that where the company has power to 
 dispose of its undertaking, as in Form 39, and there is a power 
 to divide assets in specie [_siq)ra, p. IGG], it may be practicable to 
 effect under those powers what in effect will be an amalgamation, 
 e.(j., sell for shares, and then wind up and divide in specie. And where 
 a company has power to make arrangements for union of interests it may 
 be possible to make an arrangement (without immediate liquidation) 
 which will eventually result in an amalgamation, e.g., (1) form a new- 
 company with powers sufficiently wide to authorise it to acquire the 
 .undertaking of the old company and any of the shares in that company, 
 and to make any arrangement for union of interests, &c. ; (2) let the 
 two companies make a permanent arrangement for union of interests, « 
 which will in effect vest the management of the affiiirs of the old 
 company in the directors of the new^ company ; (3) let the new" company 
 oflFer to exchange its shares on favoural)le terms for shares in the old 
 company, and (4) when all the shares have been exchanged, the new 
 company will have the old one wound up and take to its assets in specie. 
 See Doman's Case, 8 C. Di v. 2 1 . 
 
 Amalgamation under Section IGl {supra, p. 5.j]) of the Companies 
 
 Act, 18G2. 
 
 There are two modes of effecting au amalgamation under Section 161 Two modes of 
 of the Act of ] 802. Thus : — effecting amal- 
 
 ia.) Company A. and Company B. desire to amalgamate. Com- Ser'sTction 
 pany A. passes a special resolution to wind up, appointing ^^^• 
 liquidators, and directing them to sell the assets to Company B. ^'^^^^ ''"'^' 
 in consideration of shares in that company to be allotted to 
 the members of Company A. The liquidators act accordingly, 
 and Company A. is then dissolved. 
 
 (&.) Company A. and Company B. desire to amalgamate. Company C. Mode (h). 
 is formed to acquire their assets and liabilities, and to carry on 
 the amalgamated business. Each of the old companies then
 
 574 
 
 AMALGAMATION. 
 
 When above 
 
 modes 
 
 adopted. 
 
 Proceedings 
 on amalgama- 
 tion. 
 
 Mode {a). 
 
 Terms. 
 
 Agreement. 
 
 Mode (//}. 
 
 l)asses a special resolution as in the last case, the liqiiidatoi's 
 carry the sale into effect, and the old companies are then 
 dissolved. 
 
 jNIode (a) can only be adopted where one of the companies desiring to 
 amalgamate has power to acquire the property and liabilities of the 
 other or others. See supra, p. 82. 
 
 Mode (&), on the other hand, is available in every case, and is often 
 adopted even where there is an ample power to purchase, for the cir- 
 cumstances of the companies, or the terms of the amalgamation, very 
 commonly render the establishment of a new company necessary. 
 
 It may be convenient here to follow closely the course of proceedings 
 upon an amalgamation in accordance with these two modes. And first, 
 as to mode («)• 
 
 We will suppose that Company A. and Company B. desire to amalga- 
 mate ; that the directors of Company B. have full power to purchase 
 the assets of Company A. ; and that there are sufficient unallotted shares 
 of Company B. at the disposal of the directors thereof. 
 
 The first thing is for the directors of the two companies to arrange 
 the terms on which the sale is to be made. They must settle whether 
 the consideration is to consist exclusively of shares, or partly of shares 
 and partly of cash, whether the shares are to be fully or partly paid up, 
 whether Company B. or the liquidator of Company A. is to purchase the 
 interests of dissentients and satisfy the debts of Company A., whether 
 any of the directors of Company A. are to become directors of Com- 
 pany B., and whether Company B, is to compensate any of the officers 
 of Company A. for loss of office, and so forth. 
 
 When the terms are settled they will be embodied in a conditional 
 agreement. See infra. Xotice of the arrangement is then given to 
 the members of Company A. by the directors thereof, and meetings 
 called to pass a special resolution to wind up, appointing a liquidator 
 and directing him to adopt the agreement. The special resolution 
 having been passed, the liquidator adopts the agreement and carries it 
 into effect. Company B. will allot the shares as provided by the agree- 
 ment ; the dissentients will be satisfied as arranged. The debts of 
 Company A. will be paid and liquidated by Company B. or the liqui- 
 dators of Company A. according to the arrangement. As soon as may 
 be Company A. will be dissolved. 
 
 It Avill be ol)served that the proceedings are very similar to those 
 upon a reconstruction. See supra, p. 552. 
 
 If the amalgamation is to be effected by a sale to a new company 
 according to mode (b), the terms of amalgamation will be settled be- 
 tween the directors of the companies proposing to amalgamate, and 
 embodied in an agreement made with some person on behalf of the 
 intended new company. Each of the single companies then passes a 
 special resolution as above, and the subsequent course will be the same 
 as above upon amalgamation according to mode (a). 
 
 An amalgamation according to mode (b) closely resembles a recou-
 
 INTRODUCTORY NOTES. 575 
 
 structiou by means of Section IGl, except that it involves the reei in- 
 struction of two or more companies instead of one. See supra, p. .j5l\ 
 
 In e\'ery case of amal^-amation, the question arises whether the delfts. How debts of 
 costs of windino- up the sellin"- companv, and the oblio-ation of satisfviufr t'^^'^femng 
 
 01 r^ I . 1 o .0 coin pan J- to be 
 
 the dissentient members of that com})any, are to l)e borne l)y the pur- pai.l. 
 chasin<>- company, or not. The chief advanta<i-e of throwing the liurden 
 on the purchasing company is that the members of the selling coinpany, 
 who will be called on to sanction the arrangement by special resolution, 
 are more likely to do so if they know precisely how many shares in the 
 purchasing company they are to receive, but this cannot be if the selling 
 company is to bear the burden. On the other hand, the purchasing- 
 party may not be willing to accept a burden which is more or less inde- 
 finite : it may prefer to ijurchase the assets for a fixed sum. 
 
 However, in practice the biuxlen is almost always thnjwn on the pur- 
 chasing company. 
 
 Where the burden of paying the debts, costs of winding up, and oljli- Where trans- 
 gation of satisfying dissentient members of the selling company or com- pam-To^n^'it-^ 
 panics is not to be thrown on the purchasing company, the agreement own debts. 
 with the pm'chasing company will be for the sale of the assets in con- 
 sideration of a definite number of shares in the purchasing company to 
 be allotted to the liquidators of the selling company or as they direct, 
 and the special resolution of the latter company, besides providing for 
 the winding-up, appointment of liquidators, and adoption of the agree- 
 ment, Avill direct the liquidators to sell so many of the shares as may be 
 necessary to pay the debts, costs of winding-up, and to satisfy dissen- 
 tients, and to apply the proceeds accordingly, and to distribute the 
 remaining shares among the members. Sometimes the agreement pro- 
 vides for the retention by the selling company of sufficient funds to pciy 
 its creditors. 
 
 In some cases the directors of a company can only acquire the assets When special 
 of another company with the sanction of their own company in general ^^f°ch gj V 
 meeting or by special resolution ; and where this is the case as regards a company ° 
 company to which a sale by way of amalgamation is proposed to be made ^'^'^^^^^^T- 
 under Section 1()1, the necessary sanction must be obtained ; and it 
 ought to be obtained before the selling company is called on to pass the 
 special resolution for winding up, &c., for it woidd be a serious mishap 
 for the latter company if, after the passing of the resolution to wind up, 
 the agreement fell through. The only course wotdd be to reconstruct or 
 to apply to the coiu-t to stay the liquidation. 
 
 It is very common, upon an amalgamation, to provide that some of As to appoint- 
 the directors of the selling companv shall become directors of the pur- ™<3iit of 
 
 ^ J. .. . . '■ directors of 
 
 chasing company. Where the amalgamation is effected by means of the selling com- 
 formation of and sale to a new coinpany, this is provided for bv the P'^°^ *° ^% 
 
 .„ , , . , . . ' directors of 
 
 articles of the new company ; but if the sale is to be to an existmg com- jiurchasing 
 pany, it is generally necessary to obtain the sanction of the agreement by ' '^'nn'ju^v- 
 special resolution of that company ; for the power of appointing directors
 
 576 
 
 AMALGAMATION. 
 
 Sanction 
 if new shares 
 have to be 
 created. 
 
 Compensation 
 to officers of 
 selling com- 
 pany. 
 
 ^Notices prior 
 to special re- 
 solution 
 should be 
 .sufficient. 
 
 Usual form of 
 notice. 
 
 Objects of 
 purchasing may 
 be more ex- 
 tensive than 
 those of 
 .selling com- 
 pany. 
 
 What com- 
 panies can 
 amalgamate 
 under section 
 161. 
 
 As to name of 
 amalgamated 
 company. 
 
 is almost always vested in the company in general meeting. See Stace 
 and Worth's case, 4 Ch. G85, and James v. Eve, L. R. H. li. 
 33.5. 
 
 8o, too, it may be necessary to get the sanction of a special resolution 
 of the purchasing company where the agreement involves the creation of 
 new shares by that company. 
 
 Upon an amalgamation it is by no means uncommon to provide for 
 compensation to such of the directors or other officers of the selling com- 
 pany as are not to take office under the purchasing company. Xor is 
 there any objection to such an arrangement provided there is no conceal- 
 ment. Southall V. British Mutual Life Ass. Soc, C Ch. CU. Nor is it 
 necessary to call attention to the matter provided that the members are 
 given an opportunity of ascertaining the terms. Ibid. 
 
 The notices calling general meetings to pass the special resolutions 
 should be sufficiently explicit. They should be accompanied by a circular 
 showing the nature of the plan, and, if no previous communication on 
 the subject has been made to the members, the advantages or necessity 
 which should induce its adoption. 
 
 The notices ought to contain some reference, direct or indirect, to 
 Section IGl of the Act, particularly if the memorandum or articles con- 
 tain a power " to amalgamate." See the case of the Impei-ial Bank of 
 China, &c., v. Banh of Hindustan, ^-c, G Eq. t)l. See also Fox's case, 
 G Ch. 17G. 
 
 As the validity of the resolutions depends on the sufficiency of the 
 notices, it is a serious mistake not to render them sufficient beyond dis- 
 pute, and it is now usual to refer expressly to Section 161. See also 
 sup-a, p. 558. 
 
 Upon an amalgamation effi;cted under Section 161 of the Act, it is 
 no objection that the objects of the purchasing company are more exten- 
 sive than those of the selling company, Southall v. British Mutual Life 
 Assurance Societij, 11 Eq. 65 ; nor, indeed, that they are entirely 
 different. 
 
 Any company capable of being registered under the Act of 1862 (see 
 Part VII. of the Act) may effect a reconstruction or amalgamation 
 under Section 161. It will register and immediately resolve on a volun- 
 tary winding-up and sale. Section 180 of the Act provides that such a 
 registration shall not be invalid by reason that it has taken place with a 
 view to the company being wound up, and it has been decided that 
 registration Avith a view to winding up and selling under Section 161 is 
 not open to objection. Southall v. British Mutual Life Assurance 
 Society, 11 Eq. 65. 
 
 If it be desired that the purchasing company should assume the 
 name of the selling company, or part of it, the agreement will provide 
 accordingly, and the change will be made, with the consent of the 
 Board of Trade and of the liquidators, under Sections 13 and 20 
 respectively of the Act. This has been done in various cases, and may 
 be effected in a few days.
 
 INTEODUCTORY NOTES. 577 
 
 An amalgamation with a foreign company may be effected under Sec- Amalgamation 
 
 ,• ,^, ci with foreijni 
 
 tion IGl. .See supra, p. 000. company. 
 
 An agreement for sale adopted by the Hqnidators pursuant to a 
 direction of the company is valid. Sec supra, p. 555. 
 
 The agreement may provide for the allotment of the shares to the 
 liquidators, or to the members directly. See supra, p. 55. 
 
 As to dissentients, see svpra, p. 55G ct seq. Dissentients. 
 
 As to their right of action for purchase-money, see siqrra, p. 557. 
 
 As to arbitration, see supra, p. 557. 
 
 As to the rights of dissentients being restricted by the articles, see 
 svpra, p. 16G. 
 
 An agreement in a winding up to sell the assets in consideration of G{^ncli v. 
 shares, coupled with a provision that if the realised value should not Corporation, 
 amount to a fixed sum, the deficiency should be made good by a call Invalid agree- 
 on the members of the selling company, is not such a sale as can be 
 made under Section 101. Even if the call was to be made on the 
 assenting members only, it is considered that such a sale would be 
 invalid. " It is sufficient to say that, in my opinion, the liquidators 
 of a company would have no right to place a shareholder of a com- 
 pany in this position, that he must either dissent altogether from the 
 arrangement, and be subject to have his share taken from him at a 
 valuation, or else come in under the arrangement, and thus be forced 
 to subject himself to the liability of guaranteeing the sufficiency of 
 the assets." Per Lord Cairns, L. C, Clinch v. Financial Corjmration, 
 4 Ch. 120. Form 212, svpra. The property to be sold under Sec- 
 tion ICl is the assets of the company, exclusive of its uncalled capital 
 <if any). S. C. 
 
 Upon a sale under Section IGl the members of the selling company rremium for 
 cannot be called on to pay a premium for the allotment to them of the ^ ^^'^^' 
 shares in the purchasing company. TmperiaJ Bank of China, dr., v. 
 Bank of Hindustan, Chhm, and Japan, G Eq. 01 ; 1 Ch. 389. 
 
 But a sale may be made in consideration of shares Avhich are to be ^'^J*j ^ "i' Partly 
 deemed only in part paid up. In re, City and County Investment Co., valid. 
 13 C. Div. 475 ; Imperial Mercantile Credit Association, 12 Eq. 504 ; 
 Hester & Co., 44 L. J. Ch. 757 ; or in consideration of deferred or 
 preference shares. 
 
 As to altering articles of association with a view to deprive dissen- 
 tients of their rights under Section IGl, see supra, p. 559. 
 
 As to validity of sale to a trustee for the new company, see supra, 
 p. 559. 
 
 As to necessity and mode of securing payment of dissentients, see 
 supra, p. 559. 
 
 As to the amalgamation and transfer of the business of life assurance Amalgama- 
 companies, see the Life Assurance Companies Act, 1870 (33 & 34 Yict. *^°" °^ ^'^'^ 
 c. Gl), ss. 14, 15; Buckley, 534. Under the Act last mentioned, the companie«. 
 sanction of the court must be obtained to any transfer or amalgamation. 
 See further, supra, p. 374. 
 
 P P
 
 AMALGAMATION 
 
 Form 727. AGREEMT with a view to an Amalc4amation with au existing- Co. 
 
 Agreement 
 with a view to 
 amalgamation. 
 
 Parties:. 
 
 Eecitals, 
 
 Coudition. 
 
 Sale. 
 
 Part coii- 
 sidei-atioii. 
 
 Compensation 
 to officers of 
 A. Comiiany. 
 
 In the following case a company A. and company B. C. are desirous of 
 amalgamating : the directors of the latter have full power to acquire the assets 
 of the former, and there is a sufficient number of unissued shares in the B. 
 company for the purposes of the agreement. 
 
 The agreement will be as follows : — 
 
 AN AGREEMT made the day of , between N., of , on 
 
 behaK of the A. Co, Limtd, (hereinafter called the A. Co) of the one pt, 
 and the B. C. Co, Limtd (hereinafter called the B. Co) of the other pt. 
 Whas (recite incoiyoraUon of A. Co : capital 40,000?. in 20/. sMres, ivith 
 101. pd vp : all the shares issued and fnlhj pd vp) : And whas the B. 
 
 Co was incorporated in the year under the Cos Acts, 18C2 and 
 
 18G7 : And whas the nominal capital of the B. Co is 60,000?., divided 
 into 6,000 shares of 10?. each, whereof 3,000 and no more have been 
 issued and now stand credited in the books of the B. Co as having been 
 fully pd up : And whas it is intended to procure the A. Co to pass 
 special resolutions for a voluntary winding up, appointing liqs, and 
 directing them to adopt and carry into effect this agreemt : 
 
 Now IT is hby agreed as follows : 
 
 1. This agreemt is conditional on the adoption hereof before the 
 
 day of next, by the liqs of the A. Co, with the sanction of a special 
 
 resolution of that co. 
 
 2. The A.' Co shall sell and the B. Co shall pchase all and singular 
 [sM^;ra, Form 723, cl. 1.] 
 
 3. As a pt of the conson for the sd sale the B. Co shall pay, satisfy,. 
 and discharge all the de))ts, liabilities, and engagemts of the A. Co now 
 or at the time of such adoption as afsd binding on it, and shall at all 
 times keep the A. Co, &c. [si/pra, Form 723, cl. 2. J 
 
 4. As a further pt [supra, Form 723, cl. 3.] 
 
 5. As a farther pt of the conson for the sd sale the B. Co shall, 
 within three months li'om the adoption hereof by the liqs of the old co 
 
 with such sanction as afsd pay to the sum of ?., to the 
 
 sum of ?., and to and the sum of ?. apiece, such 
 
 sums to be accepted by the sd persons in full discharge of all claims by
 
 FORMS. 579 
 
 them respively upon the A. Co for loss of office occasioned ])y the Form 727. 
 winding-up thereof. 
 
 6. As the residue of the conson for the sd sale the B. Co shall allot to Allotment of 
 or to the nominee or nominees of every memher of the A. Co who shall •'^^'''^^''• 
 require the B. Co so to do, one of its 20/. shares, with the sum of 10/. 
 credited as pd up thereon in respect of every 20/. share in the A. Co 
 
 held by him. 
 
 7. If the liqs [supra, Form 723, cl. 5]. 
 
 8. The B, Co shall accept [supra, Form 723, cl. G]. 
 
 •J. The sale agTeed to be hby made shall take effect as from the date ^iJ^^h'^JJ *" 
 hereof, and until the completion thereof, the A. Co shall stand possessed 
 of the ppty agreed to be hby sold, and shall carry on its business in 
 trust for the B. Co. 
 
 10. The A. Co and its liqs shall as soon as conveniently may be after Completion, 
 the adoption hereof by the sd liqs in manner afsd (but without preju- 
 dice to clause 11 hereof) execute [siqnrr, Form 723, cl. 7]. 
 
 11. Provided always [supra, Form 723, cl. 8]. 
 
 12. If this agreemt shall not before the day of next be Power to 
 
 rescind. 
 
 adopted by the li(is of the A. Co with the sanction of a special resolution 
 of that CO, either of the parties hto may, upon giving one week's notice 
 in writing to the other, rescind the same. 
 
 13. "\Mien and so soon as this agreemt shall liaA'e become binding Discharge of 
 on the A. Co and the liqs thereof, the sd N. shall Ijc discharged from all 
 liabihty in respect thereof. [See supra, p. 3.] 
 
 14. Notwithstanding anything [supra, Form 723, cl. 1).] 
 
 15. These presents [sujmf. Form 723, cl. Kt.] 
 
 IX WITNESS, &C, 
 
 In incorporating the clauses above i-eferred to, they must be modified 
 by substituting " A." and " B." for the words " old " and " new " where 
 necessary. 
 
 The resolutions to be passed by the A. company may be as follows : — 
 
 1. That it is expedient to effect an amalgamation of this co Avith the Form 728, 
 B. C. Co, Limtd, and that with a view thereto this co be wound up Resolution for 
 
 voluntarily, and that and Ije and they are hby appointed amalgamation. 
 
 liqs for the ppose of such winding up. 
 
 2. That the conditional agreemt submitted to this meeting be and the 
 same is hby approved, and that the liqs be and they are hby authorised 
 to adopt the sd agreemt and carry the same into effect. 
 
 AGREEMT by Liq with a view to Amalgamation with an Form 729. 
 
 existing Co. Agreement for 
 
 The following is another mode in which such an amalgamation as that above jQ„i:„j, 
 (p. 573) contemplated may be carried into effect. See further, sui:)ra, p. 59G, 
 et seq. 
 
 AN AGREEMT made the day of , between and Parties. 
 
 , the liqs of the A. Co Limtd (hereinafter called the A. Co) of the 
 
 p p 2
 
 580 
 
 AMALGAMATION. 
 
 Recitals. 
 
 Form 729. first pt, the A. Co of the second pt, and the B. 0. Co Limtd (hereinafter 
 
 called the B. Co) of the thh'd pt. 
 
 Whas, &c. ( . , , .. , .„_ 
 
 . c ( same as first two recitals, supra, p. o/9. 
 
 And whas, &c. J -^ » ^ ' i 
 
 And whas by special resolution of the A, Co, passed and con- 
 firmed at general meetings thereof, held respively on the day of 
 
 and day of , it was resolved that the old co be wound up 
 
 voluntarily, and that the sd and be and they were thereljy 
 
 appointed liqs for the pposes of such winding up, and it was resolved 
 that the draft agreemt in the sd resolution mentd, being the draft of 
 these presents, be and the same was thereby approved, and that the sd 
 liqs be and they were thereby authorised to enter into an agreemt with 
 the B. C. Co in the terms of the sd draft, and to carry the same into 
 effect : Now it is hby agreed as follows :— 
 
 1. The A. Co and its liqs shall sell, and the B. C. Co shah pchase. 
 [Supra, p. 579, cl. 2.] 
 
 Agreement 
 for sale. 
 
 2. 
 
 3. 
 4. 
 5. 
 6. 
 
 7. 
 
 [Ibid., Clauses 3 and 4, mutatis mutandis.'] 
 
 [IMd., Clause 5, mutatis mutandis.] 
 [Ibid., mutatis mutandis.'] 
 
 As a pt. 
 
 As a further pt. 
 
 As a further pt. 
 
 As the residue 
 
 If the liqs 
 
 The B. C. Co shall accept [Ihid., mvtatis mutandis.] 
 
 8 The A Co ) 
 
 * * \ [Ihid., Clauses 10 and 11, mutatis mutandis.] 
 
 0. Provided always J 
 
 10. These presents. [Su^ira, p. 502.] 
 
 In witness whereof the sd and have hereunto set their 
 
 hands, and the respive common seals of the sd companies parties hto, 
 have been hereunto affixed the day and year first above written. 
 
 the amalga- 
 mation of two 
 companies 
 with a third. 
 
 Form 730. 1. That it is expedient to effect an amalgamation of this co with the 
 Resolution for ^- ^'0, Limtd, and with the B. Co, Limtd. 
 
 2. That the following draft agreemts, submitted to this meeting, 
 namely : — 
 
 (a.) A draft agreemt dated, &c., and expressed to be made between 
 N. on Ijchalf of the A. Co, Limtd, of the one pt, and this co of 
 the other pt : 
 (b.) A draft agreemt, dated, &c., and expressed to be made between 
 E. on behalf of the B. Co, Limtd, of the one pt, and this co of 
 the other pt : 
 be and they are hby approved, and that the directors be and they are 
 hby authorised to execute agreemts in the terms of the sd drafts 
 respively, and to carry the same into effect. 
 
 3. That the capital of this co be increased to /. by the creation 
 
 of new shares of 1, each. 
 
 4. That the directors be and they are hby authorised, upon the adop- 
 tion of the sd first mentd agreemt by the liqs of the A. Co, Limtd, with
 
 FOEMS. 581 
 
 the sanction of a special resolution of that co, to appoint and , Form 730. 
 
 two of the present directors of the sd co, to be directors of this co. 
 
 5. That. [Similar resolution as to B. Co.^ 
 
 G. That the following clause be substituted for Clause of the 
 
 articles of association of this co, namely : " The numl)er of directors of 
 the CO shall not exceed twelve, and shall not be less than seven." 
 
 In the above case three companies. A., B., and C, desire to amalgamate. 
 The transaction is to be effected by the winding-up of A. and B., and sale to C, 
 which is to carry on the amalgamated business. Company C. has issued all its 
 shares, and the capital must therefore be increased in order to effect the 
 amalgamation. One of the terms of the arrangement is that two of the 
 directors of each of the A. and B. companies shall be appointed directors of 
 the 0. company. In such a case one mode of effecting the transaction is as 
 follows : — 
 
 Two draft agreements between the A. and B. companies, respectively, and 
 the C. company will be prepared. They will be in the form of that given, 
 supra, p. 578, nmtatis mutandis. 
 
 These drafts will be submitted to the C. company, which will pass the above 
 special resolutions. 
 
 The A. and B. companies will then pass special resolutions as above, p. 580, 
 and the liquidators will in due course adopt the agreements, which will be 
 carried into effect. 
 
 The clause in the agreements as to the appointment of the directors will be 
 as follows : — 
 
 " Upon the adoption of this agreement by the liquidators of the [A.] Com- 
 pany, with the sanction of a special resolution of that company, and , 
 
 two of the present directors thereof, shall be appointed directors of the C. 
 company." 
 
 This clause can of course be modified so as to enable the A. company in 
 general meeting to select the two directors, or to enable the directors of that 
 company to do so. 
 
 That, {^Amalgamation exj)edienl, supra, p. .")S.] Form 731. 
 
 1. That, &c. [ ^Yiml np a?id apjmntmt of li'^-^.] Resolution for 
 
 2. That the sd liqs be and they are hby authorised to consent to the amalgamation 
 registration of a new co to be named " The A. and B. Co, Limtd," with j° the forma- 
 a memorandum and articles of association, which have been already tion of a new 
 prepared with the privity and approval of the directors of this co. company. 
 
 3. That the draft agreemt expressed to be made between the liqs of 
 this CO of the first pt, this co of the second pt, the liqs of the B. Co, 
 Limtd, of the third pt, the B. Co, Limtd, of the fourth pt, and the A. 
 and B. Co, Limtd, of the fifth pt, be and the same is hljy approved, and 
 that the sd liqs be and they are hljy directed to enter into an agreemt on 
 behalf of this co in the terms of the sd draft, and to cany the same into 
 effect. 
 
 In this case Company A. and Company B. desire to amalgamate, and for 
 divers reasons it is necessary to effect this by the formation of a new company 
 to absorb the old ones, supra, p. 573. 
 
 An agreement, expressed to be made between the A. and B. Companies and 
 the liquidators thereof respectively, and the new company will be prepared, or 
 there may be two separate agreements each similar to that, supra, p. 578.
 
 582 AMALGAMATION. 
 
 Form 731. Each of the A. and B. Companies will then pass a second resolution as 
 above. 
 
 Immediately after the passing of the resolutions the liquidators will sign the 
 proper consent authoi-ising the registration of the A. and B. Company, which 
 will be forthwith incorporated. For Form of Consent, see supra, p. 219. 
 
 The primary object of the A. and B. Company, as set forth in the memo- 
 randum, will be : — 
 
 " To purchase or otherwise acquire, and to undertake all or any part of 
 the business, property, assets, and liabilities of the following companies, 
 namely : 
 
 The A. Company, Limited. 
 The B. Company, Limited, 
 or either of them, upon such terms and conditions, and subject to such 
 stipulations as may be agreed on." 
 
 The memorandum will also contain all requisite objects for carrying on the 
 amalgamated business. 
 
 The articles will authorise the directors to execute the agreement, supra, 
 p. 115. 
 
 As soon as may be after the registration of the new company, the agreement 
 will be executed by all parties, and carried into effect.
 
 AKEANGEMENTS. 
 
 INTRODUCTORY NOTES. 
 
 By s. 2 of the Joint Stock Companies Arrangement Act, 1870 (;3o & The yVctct 
 34 Vict, c. 104), it is provided that— 1870. 
 
 '' " Where any compromise or arrangement shall be proposed between a com- 
 pany which is, at the time of the passing of the Act or afterwards, in the course 
 of being wound up either voluntarily or by or under the supervision of the 
 Court, under the Companies Acts 18G2 and 1867, or either of them, and the 
 creditors of sucli company, or any class of such creditors, it shall be lawful for 
 the Court, in addition to any other of its powers, on the application in a s\un- 
 mary way of any creditor or the liquidator, to order that a meeting of such 
 creditors or class of creditors shall be summoned in such manner as the Court 
 shall direct ; and if a majority in number representing three-fourths in value 
 of such creditors or class of creditors present, either in person or by pi'oxy at 
 such meeting shall agree to any arrangement or compromise, such arrangement 
 or compromise shall, if sanctioned by an order of the Court, be binding on all 
 such creditors or class of creditors, as the case may be, and also on the liqui- 
 dator and contributories of the said company." 
 
 Previously to this Act (10 August, 1870), the majority of the credi- Prior hw. 
 tors of a company which was being wound up by the court had no 
 power to bind the minority to accept any composition or arrangement. 
 Albert Life Assurance Co., 6 Ch. 381. And although the majority of 
 the creditors of a company in voluntarij liquidation liad such a power, 
 under s. 13G of the Act of 18G2, the power given by the Act of 1870 
 can, in most cases, be more readily and effectually exercised. 
 
 The Act of 1870 has been very liberally construed, and aiTangements Usual amange- 
 under its provisions are frequent. There are four kinds commonly made ^lents. 
 (that is to say) — 
 
 1 . An arrangement providing that the creditors shall accept a com- 
 position ; the winding up to be continued and the company dissolved in 
 due course. 
 
 2. An arrangement providing for the sale of the assets of the com- 
 pany to some person who undertakes to pay the creditors a composition 
 and also the costs of the winding up. The company to be dissolved in 
 due course. 
 
 3. An arrangement under which the creditors agree to accept a com- 
 position, or to give time, or accept payment in shares or debentures : the 
 winding up to be stayed and the company to resume business.
 
 584 
 
 AEEANGEMENTS. 
 
 "What majority 
 sufficient. 
 
 Different 
 classes. 
 
 Secure 
 creditors. 
 
 Debentures 
 ' ' to bearer. 
 
 Bonn fides. 
 
 Sciieme which 
 is unfair will 
 not be siinc- 
 tioned. 
 
 Staying tlie 
 winding u^i. 
 
 4. An arrangement under which a new company is to be formed and 
 to take over assets of the old company : the creditors of old company to 
 accept benefits from new company, e.g., debentures, shares or composi- 
 tion, in satisftiction of their claims on the old company ; the members 
 of the old company to receive shares in the new company ; the old com- 
 pany to be dissolved in due course. 
 
 The approval of three-fourths in value of the crditors present at the 
 meeting in person or by proxy is sufficient although they may not be 
 three-fourths of the total value, Bessemer Steel Co., 1 C. D. 251. Those 
 who are not present either in person or by proxy are not taken into 
 account. 
 
 When there are different classes of creditors it is usual [_hifra, pp. 592, 
 597, G02] and, as it would seem, only right to call a meeting of each 
 class. See, however, a doubt on this point expressed by Brett, L. J., in 
 Dynevor Dvffryn Co., 11 C. Div. (105. 
 
 Secured creditors, e.g., the holders of mortgage debentures, are credi- 
 tors within the meaning of the Act, and accordingly may be bound by 
 an arrangement approved by the requisite majority. In re Dynevor 
 Duffryn Co., iihi siqnxt, and the Forms, infra, p. 589, ef seq. 
 
 And even where the company has sold its interest in the property upon 
 which the mortgage del)entures are secured the holders thereof are cre- 
 ditors within the meaning of the Act. In re Mammoth Coi)i)ero])olis of 
 Utah, Limd., Ct. of Appeal, 4 Aug. 1879. See infra, p. GOO. 
 
 Where a meeting of the holders of debentures " to l^earer " is held 
 with a view to an arrangement those only are entitled to vote who 
 produce their debenture thereat. In re Wedywood Coal Co., G C. D, 
 027. 
 
 The court will not sanction an arrangement aj)proved by the statutory 
 majority if it can be shown that the resolution was not passed hona fide 
 in the interest of the creditors, e. y., when the resolution is carried by the 
 votes of the persons whose interests are adverse to those of the creditors 
 as such. 8. C. and see p. 007, infra. And see the Bankruptcy cases, 
 supra, p. 50. 
 
 Xor as a general rule will the court sanction an arrangement which 
 would prejudice a creditor whose rights would have been preferential 
 if the winding up were to proceed in ordinary course, e.y., a creditor 
 Avho, having been deceived or unfairly delayed by the company, 
 would, in the absence of the arrangement, have been allowed to issue 
 execution notwithstanding a winding-up order. In re RicJtards, 11 
 C. D. G7G. 
 
 An arrangement cannot be sanctioned where it is impossible to esti- 
 mate the amounts of the claims of individual creditors. In re Albert 
 Life Assurance Co., Ch. 381. 
 
 An arrangement under the Act of 1870 generally involves the exer- 
 cise by the court of some of the powers vested in it by the Companies 
 Act, 1862. Thus, where it is part of the arrangement that the winding 
 up is to be stayed, the order is made under s. 89 of the Act. And
 
 INTEODUCTOEY NOTES. 585 
 
 ■where the arrangement provides for tlio sale of the assets to some in- 
 dividual or company, the sale is generally eflected under s. 1)5 of the 
 Act. See sitpra, p. 559. 
 
 But it was settled long since that the court has power under s. 95 of ^'^^^^l^'''^^'' 
 the Act to sanction such a sale. Agra & Mastermcurs Banlc, 15 W. E. " " 
 554. And this power can be exercised not only in a compulsory winding 
 up, but also (under s. 151) where the winding up is under supervision, 
 and (under s. 138) where it is purely voluntary. 
 
 If the sale is made under s. KU a special resolution, involving two 
 meetings of the members, is requisite, and moreover dissentient members 
 have rights [supra, p. 557] which may impede the reconstruction. 
 But where the sale is under s. 95 the court merely requires the reso- 
 hition of a single meeting of contributories and can deal with dis- 
 sentients in a much more summary way than allowed by s. KU. 
 Accordingly it seems desiraljle, where an arrangement for reconstruc- 
 tion under the Act of 1870 is proposed, to proceed under s. 95 and not 
 under s. IGl. 
 
 The Act of 1870 does not expressly require the arrangement to be A« to meeting 
 
 ., • 1 , -,_ • 1 J. 1 J. • 1 ot contnbu- 
 
 approved by a meetmg of contributories, but it is usual to oijtain sucn ^^^-^^^^ 
 approval unless the an-angemeut merely provides for the payment of a 
 composition. In consulting the wishes of the contributories, the coiu't 
 has regard to ss. 91, 13G, 149, 159, and IGO of the Act. 
 
 It is doubtful whether an arrangement once approved by meetings of Modification 
 creditors or contributories can be modified l)y the court or otherwise ° ^^' ^'^^ " 
 without the aj^proval of further meetings. Dijnevor Co., 11 C. Div. GIO. 
 In some cases it has been part of tlie arrangement that the liquidator or 
 some other person shall have power to agTce to modifications, but it 
 would seem that such a power is of doubtful validity. S. C. In several 
 cases the court has directed new meetings to be held to consider modifi- 
 cations, see infra, p. GOi. 
 
 An arrangement with the debenture holders of a company may Trustees for 
 
 QGuGntnrG 
 
 provide for the concurrence of the trustees (if any) for the de- ijoi^igrs bound. 
 bentiu-e holders, or for the modification of the trusts of the covering 
 deed ; and where the arrangement does not contain any such provision 
 an action can be brought and judgment obtained accordingly. 
 
 Where a company is being wound up it not uncommonly happens As to staying 
 that an action by debenture holders is pending. See infra, p. 593. In '^g,jg"ture 
 such cases any arrangement with the debenture holders should provide holders. 
 for the costs of the action and for staying further proceedings therein, 
 and the order sanctioning it should be made in the action as well as in 
 the winding up. 
 
 As to procedure :— Procedure. 
 
 In most cases, the best course of procedure is as follows : 
 
 1. Prepare the arrangement. 
 
 2. Apply to the Court by summons or motion to convene the requisite 
 meetings. 
 
 3. Hold the meetings and pass the necessary resolutions.
 
 586 
 
 Advertise- 
 ment. 
 
 ARRANGEMENTS. 
 
 4. Apply to the Court by petition stating the circumstances and obtain 
 an order sanctioning the arrangement. 
 
 5. It will be observed that the application to the Court may be made 
 by any creditor or l)y the liquidator. It is usually made l)y the 
 liquidator. 
 
 The arrangement is sometimes set forth in a document intituled 
 " Scheme of arrangement," and is sometimes embodied in an agreement 
 expressed to be made subject to the sanction of the Court. Where the 
 arrangement provides for a sale of the assets to an existing person, a 
 provisional agreement is generally desirable, but where the sale is to be 
 to a new company the best plan is to submit the arrangement to the 
 meetings and the court in the form of a scheme, and when the sanction 
 of the Com-t has been given the new company is registered and forthwith 
 enters into an agreement Avith the liquidator to carry out the scheme. 
 This agreement should contain explanatory recitals, and if the scheme 
 provides for the allotment of paid-uj) shares it will 1)0 filed pursuant to 
 s. 25 of the Act of 1867. 
 
 The summons for liberty to call the meetings can easily be framed 
 from the orders given infra, p. 594, et seq. 
 
 The advertisement will run thus : 
 
 In the High Court of Justice^ Chancery Division, V.-C. . In the matter 
 
 of the Joint Stock Companies Arrangement Act, 1870, and in the matter of the 
 
 Companies Acts, 1802 and 1867, and in the matter of the Company, 
 
 Limited. Notice is hei-eby given that his lordship, Mr. Justice , has 
 
 directed a meeting of the contributories [or the creditors or the creditors other 
 than the holders of the debentures secured by an indenture, &c., or the credi- 
 tors of the above-named company being the holders of debentures of the com- 
 pany secured by, &c.] of the above-named company to be summoned pursuant 
 to the above statutes for the purpose of ascertaining their wishes. [Here state 
 object, e.g. : as to the reconstruction of the company.] And that such meeting 
 
 will be held on day, the day of , at o'clock in the noon, 
 
 at in the county of at which time and place all the aforesaid contri- 
 butories [or as the case may be'] are requested to attend. The said judge has 
 appointed of to act as chairman of such meeting. 
 
 Dated, &c. [official] liquidator. 
 
 Petition. 
 
 Title. 
 
 And see the other forms of advertis'jment below. 
 
 The petition should state the formation of the company, the winding- 
 up proceedings, the position of affairs so fiu' as may be necessary to 
 explain the scheme and enable the Court to form a judgment as to the 
 expediency of sanctioning it, and the result of the meetings, and will 
 pray for the sanction of the Court. It should be served on the company 
 and any other necessary parties, e.f/., the trnstees for debenture holders, 
 and should be verified by affidavit. It is not usual to give notice by 
 advertisement of the day fixed for hearing of the petition. 
 
 Application to the Court with regard to arrangements under the Act 
 of 1870 should be intituled in the matter of the Acts of 1802 and 1867, 
 and of the Joint Stock Companies Arrangement xVct, 1877, and of the
 
 INTRODUCTORY NOTES. 587 
 
 particular company. In re Barluston Coal & Iron Co., W. X. 1877, 
 1.39. And notices convening meetings should be intituled in like 
 manner. 
 
 The following pages contain the particulars of some of the arrange- 
 ments which have been sanctioned by the Coiu't. 
 
 It is singular that cases of arrangement under the Act of 1870 are 
 rarely reported, although they often present features of considerable 
 interest, and not uncommonly affect property of great value.
 
 AEKANGEMENTS. 
 
 The Accidental Death Insurance Co, Limtd. 
 
 Arrangemt wuler ivldch Creditors to accrpt Composiiion. Winding u}) to 
 continue. 
 
 This company was being wound tip undex- supervision. An arrangement 
 having been proposed^ tlie following order was made on application by sum- 
 naons : 
 
 Form 732. Upon the applicon of W., G., L., respively creditors of the above- 
 Order for named co, and upon hearing the solors for the applicant, and for the sd 
 meeting. p,-,^ j^jj(j upon reading, &c., It is ordered that H. the sd off. liq. do forth- 
 
 with smumon a meeting of the creditors of the co pursuant to the 
 provisions of the Joint Stock Companies Arrangemt Act, 1870, for the 
 ppose of ascertaining whether a majority representing three-fourths in 
 value of the creditors present thereof in person or by proxy are willing 
 to assent to a compromise or arrangemt which has been proposed between 
 the contribs of the co and its creditors for the final settlemt of all the 
 claims of the latter by paymt of a further dividend of 3s. 6d in the 
 pound within one calendar month after the date of the order sanctioning 
 such compromise or arrangemt : And it is ordered that such meeting be 
 held at the Cannon Street Hotel, in the City of London, on Wednesday, 
 the 15th of May, 1878, at 11 o'clock in the forenoon : And the judge 
 liby directs that H. tlie liq of the sd co be chairman of such meeting. 
 Accidental Death Inmrance Co., M. E., 2 May, 1878. A. 884. 
 
 The meeting was held and the arrangement approved, and subsequently an 
 order was made by the Master of the Eolls (30 Mar. 1878) sanctioning it. Eeg. 
 Lib. A. lilt. 
 
 Gaudet Freres Steamship Co, Limtd. 
 
 Arrangemt providing for the sale of the tvliole assets to a creditor ,h& paijing 
 a composition to unsecured creditors and the costs of the ivinding up. 
 Winding iip to continue. 
 
 This company was being wound up compulsorily ; it was insolvent, and the 
 whole of the assets were claimed by L., to whom mortgage debentures had been 
 issued. An arrangement was proposed and approved by a meeting of creditors^ 
 and the subjoined order was made by Malins, V.-C. 
 
 Form 733, Upon the applicon of the off. liq., &c., Order that the arrangemt or 
 Order compromise coutd in and provided fur by an agreemt dated 18 Feb.,
 
 FORMS. 589 
 
 1878, made between the sd co of tlie first pt, C. [ihe off. liq.'] of the Form 733. 
 second pt, and L. of the third pt (being- exhibit D. to the sd aff't of C. sanctioning 
 filed, &c.) whereby the sd co and the sd C. agreed with the sd L. to sell t*ie sale, 
 to him all the assets of the co in England and in France in conson of the 
 sd L. paying to the creditors of the sd co who have been duly certified 
 as such the sum of Gd. in the pound as composition and in discharge of 
 their respive debts, and paying the whole of the costs, charges, and 
 expenses of the liquidon of the sd co, and in and by a resolution of the 
 sd creditors passed at a meeting of the creditors of the sd co held 15 July, 
 1878, be sanctioned by the Ct, and the same is hby declared to be bind- 
 ing on all the creditors of the sd co, also on the liqs and contribs thereof. 
 GamM Frercs, dr., Co., Malins, V.-C, 24 July, 1878. A. 1489. 
 
 In this case it will be observed that the sanction of the Coiu't was obtained 
 on summons. The circumstances in which the order was made are more fully 
 stated in Re Gandet, 4-c., Co., 12 C. D. 882 ; -1.8 L. J. Ch. SIB. 
 
 See another similar case. Re Parkgate Wagon Co., 17 C. D.'234; and see Bes- 
 semer Co., 1 C D. 251. 
 
 Sometimes an arrangement of this kind is carried out vvfithout proceeding 
 under the Act of 1870. Thus, in the winding up of the Trimsaran Coal, Iron, 
 1^ Steel Co., the property was subject to mortgages for 20,000L, and to deben- 
 tures for about 25,000L, and the M. E. sanctioned (3 Aug. 187C) a sale to ti'us- 
 tees for the debenture-holders of the assets of the company, subject to the 
 mortgages and debentures for such a sum as would cover the costs, charges, 
 and expenses of the official liquidator, and be sufficient to pay the creditors of 
 the company, other than the mortgagees and debenture-holders, sums equal to 
 10s. in the pound iipon the amount of their respective debts. 
 
 The Western of Canada Oil, Lands and Works Go. Limtd. 
 
 Arrangemt for croatmi of deJmitures io iale 'prior itij over eHstiiiij deben- 
 tures, imid-up ffJiares to he issued to the delenture liolders, new hoard 
 of directors to he eJrded, winding vp to he stayed except for certain 
 purposes. 
 
 The company was being wound up compulsorily, and the following scheme 
 was proposed : 
 
 Scheme for the reconstruction of the Western of Canada Oil, Lands 
 and Works Co. Limtd. 
 
 1. Tlie liq shall continue the liquidon for the following pposes : Form 734. 
 
 {a.) The determination of the question whether the shares now stand- p^^rtial 
 
 ing in the name of John Walker in the books of the co are or continuance of 
 are not to be deemed to any and what extent pd up, and the ^'"^^^ ^ '°"" 
 making and collection of any calls in respect of such of the sd 
 shares as shall appear not to have been fully pd up. [See 
 Carting's case, 1 C. D. 115.] 
 
 (5.) The determination of the question whether any and what pro- 
 ceedings ought to be taken against John Walker the vendor to 
 the co of its ppty in Canada and its manager there, as against 
 Thomas Henry Smallman its secretary there, or against any 
 other person or persons, to recover the price pd for the sd ppty
 
 590 
 
 AEEANGEMENTS. 
 
 Form 734 
 
 When to be 
 stayed. 
 
 What may he 
 done. 
 
 Powers of new 
 hoard. 
 
 Duti 
 
 or any and what pt of it, or to obtain damages, compensation, 
 or accounts, or any and what relief in respect of the sale 
 thereof, or in respect of the managemt of the co's business in 
 Canada, or for any other ppose, and the institution and carry- 
 ing on of such proceedings accordingly. 
 
 (c.) Generally the realisation and collection of the assets of the co 
 except the ppty comprised in the indre of trust or covering 
 deed of 12 Xov. 1872, and thereby made a security for the 
 repaymt of the 200,000?. of original debentures already issued 
 by the co and in this scheme referred to as " A " deben- 
 tures. 
 
 (d.) The paymt of the debts of the co other than those secured by the 
 " A " debentures. 
 
 (<?.) The paymt of all the costs of the winding up including therein all 
 the costs, charges and expenses of or connected with or arising 
 out of this scheme of reconstruction whether the same shall be 
 ultimately carried into effect or not. 
 
 2. When the above matters are completed all further proceedings in 
 the liquidon shall be stayed on the liq's application, and the ppty and 
 assets of the co in his hands shall be handed over to the new board of 
 directors to be appointed as next hereinafter provided. 
 
 3. Notwithstanding the pendency of the liquidon of the co for the 
 pposes afsd the following acts may be done and j)roceedings taken, that 
 is to say — 
 
 A general meeting of tlie co shall be called for the following pposes, 
 namely : 
 
 1. The election of a new board of directors, for which ppose all or any 
 
 of the existing directors may be remo^'cd from office by the sd 
 meeting. The new board of directors to be appointed from 
 among members eligible for the appointmt other than the re- 
 moved directors (if any) and 
 
 2. The sanctioning by special resolution the issue of new shares to 
 
 holders of " A " debentures as hereinafter provided. 
 
 4. The new board of directors when appointed shall have and perform 
 all the powers and duties vested in the directors by the articles of asso- 
 ciation of the CO, l)ut nevertheless (until the completion of the liquidon 
 as afsd) only to such an extent and in such a manner as not to interfere 
 Avitli the continuation of the liquidon as afsd. 
 
 5. The new board of directors shall as speedily as possible after their 
 appointmt do and carry out the following acts, arrangemts and proceed- 
 ings. 
 
 (a.) They shall borrow on behalf of the co a sum or sums of money 
 not exceeding .S0,000/. by the additional debentures (herein 
 referred to as B debentures), securing the repaymt of the 
 money borrowed with interest at 12 p. c, and charging the 
 same Avitli interest at that rate on the ppty of the co comprised 
 in the sd covering deed of the 12th of November, 1872, in
 
 FOEMS. 591 
 
 priority to the sd " A" del)entures and to aii other charges Form 734. 
 and all principal monies -or interest thereby secured, and they 
 may if they see fit offer all or any of the sd " B " debentures 
 in the first place to the holders of " A " debentures, or to any 
 of them. 
 
 (i.) They sliall affix the co's seal to an indre of trust or covering deed 
 ■whereby the repaymt ^Jf/r/ jmssu of the principal money and 
 interest secured by the sd " B " debentures shall be secured by 
 way of trust mortgage or charge on all the ppty of the co com- 
 prised in the sd covering deed of the 12tli of November, 1872, 
 in priority to the sd "A " debentures and the principal money 
 and interest thereby secured. The trustees of the sd covering 
 deed of the 12th of Xovember, 1872, shall also be parties to 
 the sd new covering deed for the ppose of postponing the sd 
 " A " debentures and the sd security for the same. 
 
 (c.) They shall at the same time that they issue the sd " B " deben- 
 tures affix the co's seal to the sd second covering deed, offer 
 and (if accepted) issue to the holder of every " A " debenture 
 a new fully pd-up share on the co of 30/., to be taken in full 
 discharge of the bonus of oi»/. payable to him under the sd 
 debenture, and also of all interest which may at the time of 
 issuing the sd share ])e due upon the "A " debenture in respect 
 of whicli it shall be issued and such " A " debenture shall be a 
 security only for 100/. and interest thereon at the rate of 12/. 
 p. c. p. a. from the time of the issue of the sd share. The sd 
 new shares shall Ijc called and are herein referred to as " B " 
 shares. 
 
 (d.) They shall at or Ijefore the issue of the sd " B " shares affix the 
 co's seal to a contract in -N^Titing between the co and all the 
 holders of A debentures who shall accept B shares as afsd in 
 discharge of the sd bonus of 30/. per debenture to which they 
 are entled, agreeing that the sd B shares are and shall be 
 deemed to be fully pd up, and shall duly file the sd contract 
 with the Registrar of Joint Stock Companies. 
 
 (e.) The holders of B sliares shall have the exclusive right of voting 
 at all meetings of the co for the terra of 10 years from the issue 
 of B shares or the paymt of the sd B and A debentures which- 
 ever shall first happen, at the expiration of which time or the 
 happening of which event the sd exclusive right shall cease, 
 and all holders of shares in the co shall vote according to the 
 niimber of sliares held by them. T\lth this exception the sd 
 B shares shall for all pposes (except as to amount) rank with 
 the existing shares in the co which shall hereinafter be called 
 and are herein referred to as A shares, and the holders of the 
 sd B shares shall in addition to the temporary exclusive right 
 of voting as afsd have all powers, rights and privileges in con- 
 nection with the CO as if they were holders of a corresponding
 
 .92 
 
 AERANGEMENTS. 
 
 Form, 734. number of " A " shares in the co with 307. per share pd up 
 
 thereon. 
 
 (/) The new board of directors shall out of the moneys to be raised 
 by the issue of the sd " B " debentures in the first place pay all 
 the expenses of and connected with their issue, aud in the next 
 place pay over to the liq such a sum as he shall at the time 
 require to enable him completely to pay or settle the then out- 
 standing debts and liabilities of the co other than the sums 
 secured by the said A and B debentures and the costs of the 
 winding up including the costs, charges and expenses of this 
 scheme and of the committee of debenture holders, including 
 therein the costs and charges of the bill in Chancery filed by 
 Mr. Louth, and the receivership thereunder, and shall stand 
 possessed of the residue of the same money to be raised by the 
 issue of the sd B debentures for the general pposes of the 
 reconstructed co. 
 
 {g!) The future profits of the reconstructed co shall for the pposes 
 of interest and dividends be applied first in paymt of interest 
 at 12 p. c. on the sd A debentures ^^an'^^ass?/, next in paymt of 
 dividends at 1 2 p. c. on all shares in the co both A and B pari 
 2JC(ssv, and the residue (if any) shall be divided equally between 
 the holders of debentures " A " or " B " and the shareholders 
 (whether of A or B shares) 2iari passu, the sd debenture holders 
 taking their share thereof by way of bonus and not in discharge 
 pro fanto of the principal money due on their debentures re- 
 spively. 
 
 C. In all other respects the new board of directors shall carry on and 
 manage the business and property of the co in accordance with the 
 articles of association. 
 
 A petition seeking the sanction of the Court was presented by L. E. & T. 
 and an order sanctioning the scheme was made by Jessel, M. E. See W. N. 
 1874, 148. 
 
 General 
 provision. 
 
 Form 735. 
 
 The Landore Siemens Steel Co, Limtd. 
 
 " Arrangcmt for 2^(iyint of unsecured crcdHors in full; dehenture Jioldcrs 
 to (jive time ; trust deed to he modified ; action and winding up to he 
 stayed. 
 A siipervision order had been made and tlie following scheme was proposed : 
 
 Time to be 1. That the time for the paymt of the principal of the debentures 
 
 given by amountinsT to 148,9007. created and issued by the co for the term of five 
 
 holders of ^ ' n -, -, ^ • ^ ^ 
 
 five-year years and secured by the trusts of a deed, &c, which became due and 
 
 debentures. payable on 1 Jan. 1870, be extended to ] Jan. 1884. 
 And by 2. That the time for the paymt of the principal of the debentures 
 
 holders of amounting to ,51,100/. created and issued for the term of seven years, 
 debentures secured l)y the same deed and fixlling due 1 Jan. 1881, be extended to 
 1 Jan. 1884.
 
 POEMS. 593 
 
 3. That tlie rate of interest on all the sd debentures be henceforth, Form 735. 
 from and after 1 Jan. 1870, and during such extended terms respivelj', interest ou 
 reduced from 6 p. c. p. a. to 4 p. c. p. a. payalile half-yearly on 5 July debentures 
 and 5 Jan., and that the co do issue to the registered holders of the sd 
 debentures warrants for such interest expressed to l)e payable to bearer. 
 
 4. Time for paymt of certain deferred warrants already issued in 
 respect of arrears of interest postponed. 
 
 5. That (S. one of the del^enture holders and a creditor for cash ad- interest on 
 vanced to the co under the agreemt of 2 May, 1877, being present 'o*'^ reduced, 
 nnd hby consenting) the interest payable to him from 1 Jan. 1879, on 
 
 the amount so due to him for cash advances be at the rate of 4 p. c. 
 
 p. a. instead of 6 p. c. p. a., while the rate of interest payable on the 
 
 <lcl)entures is 4 p. c. p. a. 
 
 n. That in addition to the powders conferred on the trustees for the Additional 
 
 debenture holders by the trust deed of 21 Ap. 1874, the trustees or ro^'crs given 
 
 •^ . -^ ' to trustees tor 
 
 trustee for the time bemg thereof be empowered (with the concurrence dei)enture 
 
 of the provisional or other off. liqs. of co during the continuance of the l^'^^^^rs. 
 winding up proceedings and afterwards wnth the concurrence of the co 
 and subject to the consent of any other person or persons w^hose consent 
 may be requisite as lessors or otherwise) to let on lease, or otherwise, or 
 to surrender, release, or otherwise dispose of or to concur in letting, sur- 
 rendering, releasing, or otherwise disposing of all or any of the collieries 
 confirmed in the sd trust deed at such times and upon such terms, and 
 either gratuitously or otherwise, as to the sd trustees or trustee may seem 
 expedient, and to enter into or concur in any arrangemt or agreemt for 
 that purpose. 
 
 7. That (regard being pd to the order of 20 Jan. 1879, and the As to payment 
 directtion in the winding up order for continuing the first-mentd order, °^ *|?'^° 
 
 the sd 8. in respect of his sd advances and interest hby consent- 
 ing) the sd liqs shall l)e at libty, notwithstanding any prior or other 
 right or claim of any of the debenture holders, to apply and continue to 
 apply the proceeds of all book debts existing at the time of the presen- 
 tation of the peton to wind up, or subsequently accruing during the 
 winding up (so far as not already received and expended) in or towards 
 the discharge of the trade debts of co, wdiether owing at the presenta- 
 tion of peton or subsequently incurred during the winding up. 
 
 8. That the action of T. E. and E. H. against the sd trustees and the 
 CO (1879, R. Xo. 15) be discontinued. 
 
 9. That all necessary and proper steps be taken as speedily as may Ijc Winding up 
 for staying all further proceedings under or in relation to the winding *° ^'^ stayed. 
 up of the CO, and that the trustees or trustee under the sd trust deed do 
 
 concur therein and consent thereto on behalf of the debenture holders. 
 
 10. That so soon as the proceedings in the winding up shall be stayed Trustees to 
 as afsd, the trustees be authorised to withdraw from and to deliver up posge"sio„ 
 possession to the co of all the ppty of the co now in their hands or under 
 
 their control : Provided nevertheless that the same be held by the co 
 subject to the trusts of the sd deed of 21 Ap. 1874, in the same manner 
 
 Q Q
 
 594 
 
 AERANGEMENTS. 
 
 Form 735. as the co held the same prior to the trustees entering upon and taking- 
 " possession thereof. 
 
 11. As to applying half the net profits to redemption of debentures. 
 
 The scheme having been prepared, an order (25 Feb. 1879) was made by 
 Malins, Y.-C, on the application of the provisional official liquidators in the 
 winding up as follows : 
 
 Form 736. Let the ajoplicants as such prcA". off. liqs. be at libty pursuant to the 
 Order for provisions of the Companies Acts and of the J, 8. Companies Arrange- 
 meeting. ment Act, 1870, to convene a meeting of the del)cnture holders of the 
 
 CO, to Itc held at the Hotel on Thursday, 3 Ap. 1871), at two o'clock 
 
 in the afternoon, for the ppose of considering a scheme of compromise 
 or arrangemt to be made between the debenture holders and the co, 
 and of passing such resolutions thereon as such meeting may deem fit^ 
 and let one of the debenture holders present at such meeting act as the 
 chairman thereof, and let 14 days previous notice of such meeting be 
 given to each of the debenture holders, or in case of any one or more 
 debenture or debentm-es being jointly held by two or more persons, then 
 to the joint holder whose name is first on the register of debenture 
 holders ; such notice to be sent through the post. Reg. Lib. B. 333. 
 
 The meeting was held and the scheme approved, and a i>etition intituled in 
 the matter of the Acts of 1862 and 1867 and of the company, and of the Act of 
 1870, and in the action was then presented by the provisional official liqui- 
 dators. The petition stated ; 
 
 Form 737. 1. Formation of co, objects, &c. 
 
 Petition. 2. Capital increased, and now amounts to 80U,000?. in 7,000 ordinary 
 
 shares (of which 5,997 issued) and 1,000 preference shares of 100? each.. 
 Ordinary shares converted into stock. 
 
 3. Resolution of directors to create debentures not exceeding 3.50,00o/.^ 
 to be secured by deed as a first charge on co's ppty. 148,900/'.. 
 5-year debentures falling due 1 Jan. 1879, and 51,100?. 7-year deben- 
 tures falling due 1 Jan. 1881 issued. 
 
 4. Parlars of the trust deed for securing the debentm-es. 
 5 and 6. Petr S. holds 31,700/. debentures. 
 
 7. Under agreemt of 2 May, 1877, S. had made cash advances to co^. 
 114,8407. at G p. c. p. a., and to be a charge on the ppty. 
 
 8. The trade liabilities of the co (exclusive of amounts due to deben- 
 tm'e holders and S. and small unsecured overdraft due to l)ankers of co) 
 amounted on 31 Dec. 1878 to 25,406?., or thereabouts, and amount due 
 to CO on same day from trade debtors after allowing for doubtfiil or bad 
 debts amounted to 28,337?., or thereabouts. 
 
 9. The CO being unable to pay the interest on the debentures ou 
 1 Jan. 1879, the trustees of deed took possession of the assets. 
 
 10. The only ppty of co exempt ft'om trust deed was the book debts 
 and certain mining i)pty in Spain, 
 
 11. 2 Jan. 1879, winding up peton presented, and petrs appointed 
 prov. off. liqs., S. undertaking to carry on the business.
 
 FOEMS. 595 
 
 12. Order of 20 Jan. 1870, giving liqs libty to apply assets iu dis- Form 737. 
 charge of trade debts so far as necessary to keep business going [Reg, 
 
 Lib. B. 71.] 
 
 13. 24 Jan. 1879, winding up order, and 7 Jan, 1879, petrs appointed 
 off, liqs, 
 
 14. 23,142/. received iu respect of book debts and 21,170/', trade 
 debts pd thereout, 
 
 15. Order of 25 Feb, 1870, to convene meeting of debenture holders. 
 
 16. Notices sent (particulars stated). Endorsed upon each notice so 
 sent was a printed copy of the sd scheme of arrangemt. 
 
 17. Meeting held, Petr C. elected chairman. Holders of 133,300/, 
 debentures present in person or by proxy, Parlars of scheme taken as 
 read and resolution of approval carried. All present voting in favour of 
 resolution, except holders of 4,000/, debentures who remained neutral. 
 
 18. The scheme so adopted was in the terms following : — {sdling it out.) 
 19 and 20. Assent of further debenture holders. 21. Parlars of the 
 
 action [&// dcdentnre holders on hclialf, &c., to have trusts of covering deed 
 administered']. 
 
 22. It will be for the benefit of the co and also of the debenture 
 holders generally that the sd arrangemt should be sanctioned by the Ct. 
 The powers conferred by the trust deed of 21 Ap, 1874, caunot be 
 effectively employed for the ppose of realising their security in conse- 
 quence of the prevailing depression of trade which would render it 
 difficult if not impossible for the trustees to lease or dispose of the ppty. 
 Trustees still in possession, but liqs have continued working with 
 following result, &c. 
 
 23. There is a good prospect of the co's trade becoming again remu- 
 nerative, &c. 
 
 24. Except the debenture holders the only creditors of co are your 
 petr S, for sd 114,840/., and other creditors for 4,230/. 
 
 Your petrs therefore pray : 
 
 1. That the arrangemt stated in the 18th paragraph of this peton 
 
 may be sanctioned by the Ct, and may be ordered to be caiTied 
 into effect by the trustees of the indre of 21 Ap. 1874. 
 
 2. That \_2yr0ceedings in action mag he staged]. 
 
 3. That [libtg for petrs to ^wg costs]. 4, That subject as afsd, all 
 
 further proceedings in the winding up bo stayed, except for the 
 ppose of giving effect to the order to be made on this peton. 
 5. Further or other order. 
 
 The petition was served on the trustees, tlie i^laintiffs in tlie action, and ther 
 company, and came on for hearing on 10 July, 1879, when an order was made 
 by Malins, V.-C, as follows : 
 
 Let the scheme of compromise or arrangemt between the co and the Form 738. 
 
 debenture holders pursuant to 33 & 34 Yict. c. 104, adopted at the TTl 
 
 . 11111 ' r Order sane- 
 
 meeting of the debenture holders held 3 April, 1879, as in the peton tioning 
 
 mentd, be sanctioned, and let the same be carried into effect by the ^^^^'^''• 
 
 Q Q 2
 
 596 
 
 ARRANGEMENT?. 
 
 Form 738. trustees of the iiidrc of 21 Ap. 1874, the terms of which compromise or 
 arrangemt are as follows, &c., and stay all further proceedings in the 
 action except so far as may be necessary for carrying this order into 
 effect, and let the petrs pay the costs as between solor and client of [_tli(' 
 trustees'] and of \_the co] and of the sd several stock holders and deljen- 
 ture holders [_tvho appeared^ and of \_plts in action^ of and incidental to 
 this applicon, and the costs, charges, and expenses as between solor and 
 client of the petrs and of \_the trustees'] and of [^tlie co] incurred in or 
 relating to the winding up and the costs, &c,, as between, &c., of \_fJu' 
 pits in action'] and of \_the trustees] and of [ro] of and incidental to the 
 sd action. And refer it to the taxing master to tax the sd costs. And 
 order for paymt to solors when taxed. And subject as afsd, let all 
 further proceedings in the winding up of the co be stayed, except for the 
 ppose of giving effect to this order. Reg. Lib. 1870. B. 3082. 
 
 The Dynevor, Duffryn, and Neath Abbey Collieries Co, Limtd. 
 
 Arrangemt for tease of ro\? undertalcinu and modification of trust deed for 
 securing debentures. Winding vj) continued. 
 
 The company was formed in 1874, and had issued debentures to the extent 
 of 210,0001., secured by an assignment of the company's undertaking to two 
 triistees. In June, 1878, a resolution for a voluntary winding iip was passed, 
 and the trustees were appointed liquidators. In August a meeting of the com- 
 pany's creditors was convened, piu-suant to an order of Malins, V.-C, for the 
 purpose of considering an arrangement embodied in an agreement. The agree- 
 ment was made between the trustees of the first part, the company of the 
 second part, and M. of the third part ; and its principal provisions were as 
 follows : 
 
 That a lease of the company's business should be granted to M. for 21 years, 
 at a dead or minimum rent of 5,000J. and certain royalties ; that the lessee 
 should take all the liabilities of the leases under which the company held the 
 mines ; and that the lease should include the plant and machinery belonging 
 to the company ; and the lessee agreed to have 10,000L ready to be expended 
 as capital at the commencement of the lease, and to expend so much of that 
 sum as should be required in working the mines, and that he would indemnify 
 the company and the triistees and the secured creditors of the company against 
 all liabilities up to the date of the lease, other than the monies secured by the 
 deed of trust, for the benefit of the debenture holders ; and it was agreed that 
 the liquidators should assign to the lessee all the assets of the company. The 
 agreement was expressed to be made subject to the sanction of the Court, and 
 to its being executed as an arrangement with creditors under the Act of 1870. 
 
 The agreement was approved at the meeting of debenture holders, and ujion 
 summons taken out by the trustees, was confirmed by Malins, V.-C. Shortly 
 afterwards the arrangement was approved at a meeting of members of the com- 
 pany in accordance with s. IGO of the Act of 1862. 
 
 A dissentient debenture holder appealed from the order of the Vice-Chancel- 
 loFj but the appeal was dismissed. The case is reported in 11 C. D. 605.
 
 FORMS. 597 
 
 Form 739. 
 
 The Northampton Coal and Iron Co, Limtd. 
 
 ArnDtgcmlfor reconstruction hy sale to new co : dehenture holders to accept 
 debentures, and unsecured creditors composition. 
 
 The company was being wound up under supervision. Meetings were called 
 pursuant to the following order : 
 
 " Upon the applicon of V. J. P., the liq of the above-named co, and Order for 
 upon hearing the solors of the sd liq, and upon reading an order dated ^^^ ^^°' 
 4 Aug. 187G [supervision order^, and an afft, &o. It is ordered that the 
 sd liq be at libty to call a meeting or meetings of the creditors and 
 debenture holders of the sd co for the ppose of considering a scheme of 
 compromise or arrangemt to be made between such creditors and deben- 
 ture holders and the co, and that the sd liq be the chairman of such 
 meeting or [meetings." Kortham2)ton Coal, &c., Co., Malins, V.-C, at 
 Chambers, 8 August, 187G. B. 1433. 
 
 And resolutions having been passed approving of the proposed arrangement, 
 an order sanctioning the same was obtained on summons. The order was as 
 follows : 
 
 " Upon the applicon of F. J, P., the liq of the above-named co, and Form 740. 
 upon hearing the solor for the sd liq, and upon reading an order dated Onier con- 
 the .sth August, 1870 [calling meeting, see supra'\. It is ordered that the firming 
 scheme of compromise or ari'angemt, pursuant to 33 & 34 Vict. c. 104, 
 resolved upon at the meetings of the shareholders and debenture holders 
 
 of the above-named co, held at the Hotel, at •, on the 23rd day 
 
 of August, 187G, and duly confirmed by the shareholders of the sd co at 
 a meeting of shareholders held on Monday, the 11th day of September, 
 
 187G, at the offices of the co situate at , be sanctioned and carried 
 
 into effect, which sd resolutions are as follows, that is to say, 
 
 " (1.) That J. T. P., the liq of this co, be, and he is hby authorised 
 to sell to a new co to be formed for the ppose of acquiring the 
 same, all the ppty of this co, subject to the debts and liabili- 
 ties thereof, in conson of 8,000 shares of 10/. each in such new 
 co, with Gl. per share credited as pd up thereon, such shares 
 to be divided among the shareholders of this co in the 
 proportion of one share in such new co for each share now 
 held in this co. 
 " (2.) That the debenture holders of this co accept in satisfon and 
 discharge of their claims against such co perpetual debentures 
 to the same amount respively in a new co intended to be 
 formed for the ppose of acquiring the assets and ppty of this 
 CO, bearing interest at 4/. 105. p. c. p. a. from the 30th day of 
 March, 187G. 
 " (3.) a. That a composition of 125. in the pound be accepted in 
 satisfon of the debts due to the creditors of this co (other 
 than the debenture holders). I. And that such composition be
 
 598 AERANGEMENTS. 
 
 Form 740 payable by three iiistalmts at three, six, and nine months 
 
 vespively from the date of the confirmation of these resohitions 
 by the Ct." Nortluimjjlon Coal, 4'C., Co., Malins, V.-C, at 
 Chambers, 12 Sep. 187G. B. 1508. 
 
 Llanrwst Lead Mining Co, Limtd. 
 
 Arranffcml for reconstruction : creditors to accept liahilitij of jwir ro .- 
 members to ham parti// pd sluires in new co. 
 
 Porm 741. i. A new co shall be incorporated under " The Companies Acts, 1862 
 Scheme of to 1880," as a CO limtd by shares. The name of such co (hereinafter 
 leconstractiou. j-gferred to as the new co) shall be " The C. Co, Limtd," or if any 
 difficulty arises as to registering under that name, then such other name 
 as the liq of the Llanrwst Lead Mining Co, Limtd (hereinafter referred 
 to as the old co), shall select. The nominal capital of the new co shall 
 he 75,000^., divided into 37,500 shares of 21. each. The objects of the 
 new CO shall include the acquisition and undertaking of all or any of the 
 assets and liabilities of the old co. The memorandum and articles of 
 association of the new co shall be in the form of the drafts which have 
 already been approved by the liq of the old co. 
 
 This scheme may be compared with the bankruptcy schemes. Siqyra, p. 15, 
 et seq. 
 
 2. The liq shall be at libty to sell to the new co the whole of the 
 assets of the old co for the consons following (that is to say) : — 
 
 (a.) The new co to allot to, or to the nominee or nominees of each 
 member of the old co, who (within six weeks after being served 
 with such a notice as is meutd in Clause 3 hereof) shall require 
 the new co so to do, one 2/. share in the new co, with the sum 
 of 11. 10s. credited as pd up thereon in respect of each 21. share 
 in the old co held by him, 
 
 (h.) The new co to undertake, pay, satisfy, and discharge all the debts 
 and liabilities of the old co, and all the costs, charges, and 
 expenses of and incident to the winding up and dissolution of 
 the old CO (including any that have been or shall be incurred 
 in relation to this scheme and to the sd sale) and to indemnify 
 the old co, its liq, and contribs from and against all actions, pro- 
 ceedings, claims, and demands in respect thereof. 
 
 3. The agreemt for such sale as afsd shall contain provisions to the 
 following effect, namely : — 
 
 (a.) That the new co shall within fourteen days after the execution l^y 
 it of the agreemt give notice in WTiting to each member of the 
 old co stating the numl)er of shares in the new co which he is 
 entled (pursuant to this scheme) to have allotted to him or his 
 nominee or nominees, and the period within which an applicou 
 in writing for the allotmt of such shares must be sent to the 
 new CO. 
 
 (b.) Tliat the old co .shall forthwith deliver to the new co all such pts
 
 FOR^rS. 599 
 
 of the assets of the old co as shall be capable of delivery, and Form 741. 
 
 shall execute and do all such assurances and things as the new 
 
 CO shall reasonably require for carrying the sale into effect, 
 
 either as to the whole or any pt or pts of the assets agi-eedto be 
 
 sold, the same to be settled in case of difference by the judge 
 
 to whose Ct the winding up of the old co is for tlic time Toeing 
 
 attached. 
 
 {c.) That as regards any of the outstanding assets of the old co which 
 shall not for the time being have been assigned to the new co, 
 the li<] of the old co shall, at the request and expense of the 
 new CO, collect, get in, and realize the same or any pt thereof, 
 and for that ppose take all the requisite proceedings in the 
 winding up of the old co or otherwise ; and 
 
 {(I.) Such other jirovisions as the liq of the old co shall think 
 expedient. 
 
 4. If the new co shall within one month after this scheme shall have 
 been sanctioned by the Ct enter into an agreemt with the old co and its 
 liq to pchase the assets of the old co for the consons afsd, the old co shall 
 from thenceforth stand and be released from all its debts and liabilities 
 so undertaken by the new co, and the creditors and other persons to 
 whom such debts are due, or in whose ftivour such liabilities exist, shall 
 Jiccept the lial)ility of the new co instead of the liability of the old co. 
 
 5. Nothing in this scheme contd shall be deemed to prejudice any 
 existing security, lien, or charge, upon the assets of the old co or any pt 
 thereof. 
 
 0. The winding up of the old co shall be completed and the dissolution 
 thereof shall be effected with all convenient speed. 
 
 7. The li(| of the old co shall take all such proceedings and do all such 
 things as may be necessary, or, in his opinion, convenient for carrying 
 this scheme into effect. 
 
 The above scheme Avas sanctioned by Hall, V.-C, on petition. May, 1881. 
 The following is the notice of the meetinj^s : — 
 
 In the High Ct of Justice. Form 742. 
 
 Chanceiy Div. Notice of 
 
 In the matter of the Companies Acts, 1862 and 18G7. meetings. 
 And in the matter of the Llanrwst Lead Mining Co. 
 
 Limtd. 
 And in the matter of tlie Joint Stock Companies Ar- 
 rangemt Act, 1870. 
 Notice is hereby given that his Lordship [the V.-C. Sir C. H.] has 
 directed meetings of the creditors and contribs of the above-named co to 
 be summoned pursuant to the above statutes for the ppose of ascertain- 
 ing their wishes as to the reconstruction of the co pursuant to the 
 
 .scheme a copy of Avhich can be seen at the office of Mr. , No. — , 
 
 Street, London, E.C., the solor for the liq, and that such meetings 
 
 will respively be held on the itth day of May, 1881, at 2 o'clock in
 
 600 ARRANGEMENTS. 
 
 Form 742. the afternoon for the creditors, and at 3 o'clock in tlie afternoon for the 
 
 contribs, at tlie Tavern, Street, in the City of London, at 
 
 which times and place all the afsd creditors and contribs are requested to 
 
 attend. The sd judge has appointed Mr. , of , the voluntary 
 
 liq of the sd co to act as chairman of each of the sd meetings. Dated 
 this 21st day of April, 1881. 
 
 Liq. 
 
 Form 743. 
 
 Petition to 
 
 confirm 
 
 scheme. 
 
 The petition of the liquidator was aa follows : — 
 
 1. The object of this peton is to obtain the sanction of the Ct to a 
 ■ scheme of arrangemt by way of reconstruction whereby the assets and 
 
 liabilities of the above-named co are to be transferred to a new co. 
 
 2. [^Incorporation of CO : nominal capital^. 3. [Objects of co^. 4. [Co. 
 purchased mines.^ 
 
 5, 6 and 7. [Particulars of shares issued.] 
 
 8. [Large expenditure on machinery, &c.~\ 
 
 9. In the course of its business the co incurred divers debts and 
 liabilities. 
 
 10. Owing to the low price of lead and the expenditure required to 
 carry on the working of the sd mine, the co became embarrassed, and, 
 in the months of July and August, 1880, actions were commenced by 
 several of the creditors of the co to enforce paymt of the debts due to 
 them. 
 
 11. [Extraordinary resolution to wind up, passed 10 August, 1880, 
 get appointed liquidator.] 12. [Supervision order, '.)th Avgust, 1880.] 
 
 1 3. [Particulars as to co's indebtedness.'] 
 
 14. The ppty of the co is considered likely to prove very valuable, and 
 a large number of the creditors and contribs of the co Ijeing anxious that 
 its business should be carried on, and the co reconstructed for that ppose, 
 your petr caused a scheme of arrangemt to be prepared. 
 
 15. Such scheme of arrangemt was in the following terms : — [here 
 it was set out.] 
 
 16. The sd scheme was submitted to his Lordship the Vice-Chancel- 
 lor Hall, at chambers, and by an order of his Lordship made in cham- 
 bers on the 12th day of April, 1881, in the above matters, it was ordered 
 that your petr should be at libty to convene separate meetings of the 
 creditors and contribs of the co for the ppose of considering a scheme of 
 arrangemt to be made between such creditors and contribs and the co 
 (being tlie scheme hinbefore set forth), and that at least ten days l)cfore 
 the day appointed for such meetings an advertisemt convening the same, 
 and stating that a copy of the scheme could be seen at the office of your 
 petr's solor, should be inserted once in the London Gazette, the Times, 
 the ^Standard, and the Baili/ News, and, in addition, that a circular 
 letter sbould be sent to each of the creditors and contribs of the ca 
 whose addresses were known to your petr, and at such meetings the 
 creditors and contribs should be at libty to vote in person or by proxy.
 
 FORMS. 601 
 
 and that your petr should be the chairniiin of such meetings, and should Form 743. 
 report the result thereof to the judge. 
 
 17. On the Dth day of May, 1881, a meetmg of the creditors of the co, 
 duly convened in accordance with the last-stated order (a copy of the sd 
 scheme of arrangemt as set forth in paragraph 15 of this peton having 
 been annexed to the notices convening the meeting), was held at the 
 Guildhall Tavern, Greshara Street, London, and your petr took the chair 
 at such meeting. 
 
 18. The sd meeting was attended either personally or by proxy by 
 
 51 creditors, to whom 1, is due. The sd scheme of arrangemt was 
 
 taken as read, and it was unanimously resolved by the creditors so pre- 
 sent either personally or by proxy, that they approved of the proposal 
 and scheme for the construction of the co as sul)mitted by the sd liq 
 (being the sd scheme of arrangemt), and wished the same to be adopted 
 
 andcamed into effect. 
 
 19. On the same Dth day of May, 1881, a meeting of the contribs 
 [ £t., as in 2}aragraj)h 17]. 
 
 20. The sd meeting was attended either personally or by proxy by 
 
 189 contribs, holding ordinary and preference shares. The sd 
 
 scheme was then and there read to all the contribs who were personally 
 present at the sd meeting, and it was resolved by the contribs so present 
 either personally or by proxy, that they approved of the proposal and 
 scheme for the reconstruction of the co as submitted by the liq (being 
 the sd scheme of arrangemt), and wished the same to l)e adopted and 
 carried into effect. 
 
 21. All the contribs so present as afsd, except 3, who hold 160 ordi- 
 nary shares, voted in favour of such last-mentd resolution. 
 
 22. No objection has been made to carrying out the sd scheme of 
 arrangemt. 
 
 23. It will in the opinion of your petr be much for the benefit of the 
 CO that the sd scheme of arrangemt should be sanctioned by this Honour- 
 able Ct, and that your petr should ])e authorized to carry the same into 
 effect. 
 
 Your petr therefore humbly prays as follows : — 
 
 1 . That the sd scheme of arrangemt may be sanctioned by this Hon- 
 
 ourable Ct so as to be binding on all the creditors and contribs of 
 the old CO and on yom* petr as the liq thereof. 
 
 2. Or that such other order may 1)0 made in the premcs as to thivS 
 
 Honourable Ct shall seem meet. 
 And your petr will ever pray, &c. 
 
 Nolo. It is not intended to serve this peton on any person. 
 
 Hughes's Locomotive Co, Limtd. 
 
 In the Higli Ct of Justice, Chancery Division, Mr. Justice Fry. In Form 744. 
 the matter of the Companies Acts, 18G2 to 1880, and in the matter of j^otice of 
 Hughes's Locomotive and Tramways Engine Works, Limtd. Notice is meeting.s to
 
 <;02 
 
 AEEANGEMENTS. 
 
 ■consider 
 scheme. 
 
 Form 744. liljy given that the Honoura])]e ^Ii-. Justice Fry has directed a meetino; 
 of the creditors of the ahove-named co to he summoned under the pro- 
 visions of the Joint Stock Companies Arrangements i\.ct, 1870, for tJic 
 pposc of ascertaining the wishes of the different classes of creditors as 
 to a scheme of arrangemt of the affairs of the co the outline whereof is 
 as follows : — 
 
 (1.) That a limtd co be formed to acquire the ppty and effects com- 
 prised in the parlars and according to the conditions of sale as offered 
 at the mart on the 21st September last. The capital to be 50,000/. in 
 50,000 preference shares of 1/., and 10,000/. in 10,000 ordinary shares 
 of 1/. each. 
 
 (2.) The preference shares to be entled to a cumulative preference 
 dividend at the rate of 7 p. c, and to constitute a first charge over the 
 assets in the event of liquidon. 
 
 (;5.) The price to be pd by the new co to be such a sum in preference 
 shares as is sufficient to satisfy at par all the creditors of the co, and 
 such a sum in cash as will satisfy the costs and 7,500 ordinary shares. 
 
 (4.) 7,500 of the preference shares to be issued for working capital 
 and other cash requiremts and offered for subscription rateably in the 
 'first instance to the shareholders and creditors, each subscriber to l)c 
 ■entled l)y way of bonus to one ordinary share for each preference share. 
 The bonus shares to be provided l)y the liq. Thus a subscriber for 100/. 
 will receive 100 fully pd-up preference shares, and, by way of bonus, 
 loO fully pd-up ordinary shares. The draft contract of sale and the 
 memorandum and articles of association of the proposed cc will be sub- 
 mitted for the conson of the meeting. 
 
 And that such meeting will be held on Thursday the 12th day of 
 
 January, 1882, at 12 o'clock at noon, at No. 4, Buildings, in the 
 
 city of London, at which time and place all the creditors of the al)ove- 
 named co are requested to attend. The sd judge has appointed Mr. 
 
 to act as chairman of such meeting. And further take notice that 
 
 if a majority in number representing three-fourths in value of the dif- 
 ferent classes of creditors present either in person or by proxy at such 
 meeting do agree to the sd scheme of arrangemt in the above or any 
 modified form such scheme will if sanctioned by the order of this Hon- 
 ourable Ct be binding on all classes of creditors and also on the liq and 
 coutribs of the above-named co. Dated this 23rd day of December, 
 18H1. 
 
 E. W. Walker, Chief Clerk. 
 
 The above scheme was sanctioned on petition by Fry, J., 2 Ap. 1882. 
 
 Form 745. 
 
 Notice of 
 meetings. 
 
 In the High Ct of Justice, Chancery Division, Mr. Justice Chitty. 
 In the matter of the Companies Acts, 1862 and 1867, and in the matter 
 of the Joint-Stock Companies Arrangements Act, 1870, and in the matter 
 <if the Victorine Gold Mining Co, Limtd, Notice is hby given that 
 pursuant to the directions of ]\[r. Justice Chitty, a meeting of the mtgc 
 debenture holders of the al)ove-namcd co will be held on Thursday the
 
 FORMS. G03 
 
 5th day of April, 1883, at 1 o'clock p.m., at the Cannon Street Hotel, orm 745. 
 
 Cannon Street, in the city of London, for the ppose of ascertaining 
 
 their wishes as to a certain agreemt intended to be made between the 
 
 sd CO and its liqs of the one pt, and a proposed new co of the other 
 
 pt, and as to the scheme of an-angemt set forth in the schedule to the 
 
 sd agreemt and for the ppose of ascertaining whether they agree to an 
 
 arrangemt for compromise of their claims against the co npon the terms 
 
 of the sd agreemt and scheme, at which time and place all the mtge 
 
 debenture holders of the sd co are requested to attend. A copy of the 
 
 sd agreemt and scheme of arrangemt may be seen at the offices of j\Ir. 
 
 ■ , Buildings, in the city of London, between the hours of 
 
 eleven and two o'clock on each week day prior to the day of meeting, 
 exce])t the 23rd and 2Gth March. The sd judge has appointed R.. 
 fiiiling him, G., to act as chairman of the meeting. Dated the 15th day 
 of March, 1883. 
 
 R 
 
 G 
 
 Liqs, M St. Buildings, M st., E.C. 
 
 The Darlastun Coal and h'on Co, Limtd. 
 
 Arrangemt fur reconstruction ly sale to new co : debenture holders and 
 other creditors to accejit shares : winding up continued. 
 
 * The company was being wound up compulsorily, and there was an action 
 pending for the atbninistration of the tnists of a deed for securing debentures. 
 A petition was presented by the liquidator to obtain the sanction of the Court 
 to a scheme of reconstruction. The petition was intituled in the action, and in 
 the Acts of 1862 and 1867. The scheme i^rovided, among other things, that 
 the debenture holders and unsecured creditors should accept fully paid-iip 
 shares in the new company, in satisfaction of their debts. The Master of the 
 EoUs directed that meetings of the debenture holders, the unsecured creditors, 
 and the shareholders should be held, and that the petition should be amended 
 by intituling it in the Act of 1870. W. N. 1877, 139. And the scheme having 
 been approved thereat, an order was made sanctioning the same. W. N. 1877, 
 165. 
 
 The Xorth Western, kc. Co, Limtd. 
 Scheme for reconstruction : debenture holders tale shares in new co 
 
 1. The X, W. Cu, Limtd, hereinafter called the "okl co, 
 wound up. 
 
 2. A new co shall be incorporated pursuant to the " Companies Acts, 
 1862 to 1880," as a co limtd by shares with a memorandum and articles 
 of association, in the form identified by the signature of J. W. Hawkins, 
 Esq., the chief clerk of Mr. Justice Chitty, with power to acquire the 
 undertaking and assets of the old co, and with a nominal capital of 
 1,1:10,0007. consisting of 07. p. c. first preference shares or first pre- 
 ference stock of the nominal amount of 000,000/. and 51. p. c. second 
 preference shares or second preference stock of the nominal amount of 
 310,000/., and ordinary shares of the nominal amount of .jO0,0O0/., and 
 
 N 
 
 shall be Form 746.
 
 604- AEEANGEMENTS. 
 
 Porm 746. witli power for the directors without the consent of an}^ general meeting- 
 ' to borrow on the security of debentures or otherwise any sum not ex- 
 
 ceeding 400,000/. 
 
 The scheme as orijjfinally framed provided that the memorandum and articles 
 shoukl be in a form approved by the liquidators; they could not agree, and 
 accordingly new meetings were held, and the scheme passed in this form. 
 
 3, The dividends on the sd first preference sliares or stock, and second 
 preference shares or stock, respively, shall not be cumulative Ijut shall be 
 payable only out of the profits of each year, and in the event of the 
 new CO being wound up, the surplus assets thereof shall be applied in the 
 first place in paying to the holders of the first preference shares the 
 amount credited as pd up thereon, and in the next place in paying to 
 the holders of the second preference shares of the amount pd up thereon, 
 and the residue (if any) shall l)e divided among the holders of ordinary 
 shares. 
 
 4. The new co shall with all convenient speed make arrangemts for 
 providing, by means of the exercising of the borrowing powers of the 
 new CO, the funds necessary for completing the authorized line of rail- 
 Avay of the old co between and — - — . 
 
 ;"). The liqs of the old co shall for the consons hereinafter appearing 
 sell to the new co all and singular the concession, lands, railways, build- 
 ings, rolling-stock, plant, chattels, moneys, and things in action of the 
 old CO, and the undertaking and business thereof, with the full benefit of 
 all contracts and agreemts, and of all securities to which the old co is 
 entled, and all other the real and personal ppty of the old co whatsoever 
 and wheresoever, free from such of the liabilities of the old co as are in- 
 tended to be provided for by means of preference shares in the new co 
 as hereinafter mentd but subject to ah other liabilities of the old co. 
 
 (I. Every holder of a debenture or debentures of the old co shall be 
 entled to receive first preference shares or stock in the new co credited 
 as fully pd up equal in nominal value to the principal moneys owing 
 upon such debenture or debentures, and the shares to be issued as afsd 
 shall be entled to the sd preferential dividend of (!/. p. c. p. a. from the 
 1st day of January, 1882. 
 
 7. Every holder of a debenture or debentures of the old co shall also 
 be entled to receive second i)reference shares or stock in the new co 
 credited as fully pd up equal in nominal value to the amount of interest 
 due upon the debenture or debentures held by him, calculated up to the 
 31st day of December, 1881, after deducting therefrom such sum (if 
 any) as shall be necessary in order to reduce the sd amount of interest to 
 a nuiltiple of 1/., and the shares to be issued as afsd shall be entled to 
 the said preferential dividend of 57. p. c. p. a. from the 1st day of 
 January, 1882. 
 
 8. The holders of debentures of the old co shall accept the provisions 
 to be made for them as afsd in satisfou of all claims upon the sd de- 
 bentures and shall deliver up such debentures to the liqs of the o'd co.
 
 FORMS. 
 
 605 
 
 9. Each of the directors of the old co shall l)e entled to receive 5/. p.c. Form, 746. 
 second iDrefereiice shares in the new co credited as fully pd u]) equal 
 
 in nominal value to three-fourths of the amount owing to him by 
 the old CO on the 30th day of June, 1881, after deducting therefrom 
 such sum, if any, as shall be necessary in order to reduce the sd three- 
 fourths to a multi])le of 1/., and the new co shall pay to each of the sd 
 directors in cash the remaining one-fourth of the amount owing to Imn 
 as afsd, together with such sum, if any, as shall have been deducted 
 from the sd three-fourths for the ppose afsd, and the directors shall 
 respively accept the sd shares and cash in satisfon of all claims on 
 the old CO. 
 
 10. Every registered shareholder of the old co shall be entled to 
 receive ordinary shares in the new co credited as fully jxl up, equal in 
 nominal value to the amount credited as pd on the shares held l)y him 
 in the old co. 
 
 11. The new co shall indemnify the old co and the liqs against all 
 claims, demands, and proceedings in respect of any contracts or engage- 
 nits in relation to the undertaking or business of the old co, and against 
 all debts and lialiilities of the old co, including an agreemt dated the 
 :>rd day of February, 188o, and made between the old co of the one 
 
 pt, and "W. ^Y. Isl. of of the other pt, but excepting from 
 
 such debts and liabilities the moneys owing on or secured by the deben- 
 tures of the old CO, and so much of the respive amounts owing to the 
 respive directors of the old co as is not to be pd in cash as hinbefore 
 provided, and shall also pay the costs of winding up the old co, and the 
 costs of the committee of debenture holders of the old co, and such re- 
 muneration to the members of the sd committee as the liqs shall award, 
 and shall provide the moneys (if any) which may be required for any of 
 the powers or pposes authorised by s. KJl of the "Companies Act, 
 1802," or otherwise connected with the carrying out of the scheme. 
 
 The above scheme was sanctioned by Chitty, J., 22 Ap. 1882. The order to 
 convene the meetings was made Mar. 9, 1882. The reference to s. 161^ in the 
 last clause of the scheme, seems scarcely correct, as the winding-up was under 
 supervision order, July 2, 1881. 
 
 The Mammoth Copperopolis of Utah, Limtd. 
 
 Arrangcmt under which dehenture holders fo eiccejd dehentures of 
 another co. 
 
 The company was formed in 1871. It had issued debentures to the extent of 
 20,000L The debentures were payable to bearer, and were secured by a trust 
 deed comprising the company's mine in Utah. The company having got into 
 difiiculties, its interest in the mine (subject to the trust deed) was seized in 
 execution by American creditors and sold. 
 
 The property subsequently became, and at the date of the scheme was 
 (subject as aforesaid) vested in the British Tintic Mining Company, Limited. 
 In 187G, a compulsory winding-up order was made, and an official liquidator 
 appointed. 
 
 In December, 1S78, a scheme of arrangement was projjosed, and on the
 
 600 
 
 ARRANGEMENTS. 
 
 Form 746. application of two of the debentui*e holders, it was ordered bj Hall, V.-C, 
 
 11 Dec. 1878, that a meeting of the debenture holders should be summoned 
 
 xuider the Act of 1870, by advertisement in the London Gazette, Times, and 
 Daily Telegraph, for the consideration and apiDroval or rejection by them of the 
 scheme, and that notice should be given to the official liquidator, and that he 
 shovild be at liberty to attend the meeting, and that K., one of the applicants,, 
 should take the chair, or in his absence, a debenture holder to be chosen by the 
 meeting, and that the chairman shoiild report the result. 
 
 The scheme provided, inter alia, that the trustees should be at liberty to sell 
 the mine to a company, to be formed with a nominal capital of 75,000L, and 
 with a debentvire issue of GO,OOOL, bearing interest at 15 per cent, per annum ^ 
 and that the debenture holders should accept, in satisfaction of the principal 
 and interest due to them, debentures of such company for an equal amount, 
 and that certain paid-up shares in the new company should be issued to them, 
 and that the trustees should give effect to the scheme. 
 
 In due course the meeting was held, and resolutions approving of the scheme 
 were carried by a large majority. A summons was then taken out to obtain 
 the sanction of the Court, and the following order was made : — 
 
 Order 
 
 sanctionin, 
 
 .scheme. 
 
 Form 747. llpoii tlic applicon of K. and S. (on behalf of themselves and all 
 other tlic debcntui'e holders of the above co), &.(-., The judge doth hby 
 sanction the scheme of compromise or arrangemt resolved upon at the- 
 meeting of the sd debenture holders duly holden pursuant to [Act of 
 1870 and order of 14 Dec. 1878], on 7 Feb. 1871), and contd in the 
 resolutions under-written which were passed at such meeting and in the- 
 agreemt therein referred to, And let such arraugemt be binding on all 
 the debenture holders secured by the sd indre of 19 Aug. 1873, And let 
 such deed (if any) as may be necessary or expedient for the ppose of 
 releasing the co and the assets thereof fi'om all claims in respect of the- 
 sd debentures be executed by all necessary parties, and let the sd K. and' 
 S. be appointed to execute the same on behalf of all the sd debenture- 
 holders. 
 
 E,ESOLrTION.S. 
 
 1. That this meeting approves of the arrangemt proposed and em- 
 bodied in the agreemt, &c., and declares that it is expedient that the 
 debenture holders secured by the indre of 10 May, 187:3, be compelled 
 to exchange their debentures under the provisions of the sd arrangemt 
 for debentures of the British Tintic Mining Co, Limtd, on or before 
 '^0 June, 1879, and to release the M. Co. and the assets thereof fi-om all 
 claims in respect of the sd debentures. 
 
 2. That this meeting desires the sd agreemt and resolution to l)e 
 sanctioned by the Ct. 
 
 And costs of oflF. liq. to be allowed out of assets. Mammoth Cop- 
 'peropolis of Utah, Hall, V.-C, 14 May, 1879. B. 1003. 
 
 A motion was subsequently made to the Vice-Chancellor, on behalf of one of 
 the dissentient debenture holders, to discharge or vary the order. The motion 
 was heard on 19th June, 1879, and it was contended on the applicant's 
 behalf, that as the company's intei-est in the mine had been sold, the debenture 
 holders were not a class of creditors within the meaning of the Act of 1870,.
 
 For.MS. 001 
 
 that in so far as tlie scheme provided for the issue to the debenture holders of Foi'lll 747. 
 debentures of another company, it Avas not within the scope of the Act, and 
 that the majority was not acting; 60 /(■■' fide. In giving- judgment, the V.-C, 
 after disposing of a suggestion that s. 10 of the Judicature Act, 1875, affected 
 the question, said : " Then it is said that this case is not within the provisions 
 of the Act of 1870 by reason of this, that the class of creditors or alleged class 
 of creditors are persons who are debenture holders of the company having also 
 a security for their debentures on certain property which belonged to the com- 
 pany, and was vested iii trustees upon ordinary trusts for securing the deben- 
 ture holders. And so far there would have been no objection ; it could not have 
 been said they were not a class of creditors within the provisions of the 
 Arrangement Act. But then it is said that the equity of redemption of the 
 projDerty upon which the secruuty is created — that is, the projDerty subject to the 
 debentures — has been transferred to somebody else as it happened in this parti- 
 cular case, though unimportant for the purposes of the argument, to anothei- 
 company. That being so, it is said you are not secui'ed creditors ; that is 
 secured niwn projjerty of the company ; because the property on which the 
 security exists has passed to somebody else and is no longer theirs. Biit I do- 
 not find that the clause of the Act of Parliament under which this scheme is 
 submitted contains any such limitation with reference to the class of creditors 
 as is suggested by that argumant. They do not cease to be a class of creditors 
 within the meaning of that section by reason of the transfer of the property, 
 which is the subject of their security, to somebody else. I cannot appreciate oi'- 
 realize the meaning of that argument. It seems to me, therefore, the case is 
 plainly one in which it is competent for there to be a scheme which the court 
 can approve, if it does approve of it, notwithstanding that circumstance of the 
 transfer of the equity of redemption. Then, that being so, it is said that if it 
 could be done, still, the property being transferred to another company, what 
 you are going to give us now under this scheme, is a mere debenture of another 
 company in lieu of an existing debenture upon this company, which debenture of 
 this company is secured by the security of a trust deed, and that is not a thing 
 within the scope and power of any scheme to l^e made under the provisions of 
 the Act of Parliament. But there is nothing in that clause authorising the 
 scheme which says that the siibstituted liability of another company for the 
 liability of the company being wound up shall not be sufficient for the purpose 
 of complying with and being within the scope and operation of a scheme of 
 arrangement within the provisions of the Act. Therefore, I do not see that 
 unless it were made out, as it might no doubt be made out, that the scheme was 
 not a bondj fide one, that it was one entered into and sanctioned by a majority 
 for a dishonest and unfair purpose, that the vote did not record the intei'ests of 
 the required majority, that there were adverse or other interests in favour of it, 
 against their being considered the fair interests of the class — unless that were 
 made out, I do not see why the substituted debenture should not be quite suffi- 
 cient for the purpose of supporting this scheme." 
 
 His lordshijD then proceeded to consider the contention that the majority was 
 not acting bond fide, and on the evidence came to the conclusion that there was 
 no foundation for that contention. Accordingly the motion was disuussed with 
 costs. From this order there was an appeal, but the Court of Appeal held that 
 the scheme was within the j^rovisions of the Act, and (4 August, 1879) affirmed 
 the order with costs to be paid by the appellants. 
 
 For order directing meeting to be convened to consider scheme embodied in yorm 748 
 deed, and " that an advertisement convening such meeting, and stating that - 
 siich deed can be seen at tha office of the applicants' solicitors, and copies of it 
 procured, be inserted once in each of the following jiapers, namely, London 
 Gazette, Times, Standard [and txco local 'pax>ers\, and that in addition to such 
 advertisement, a circular letter be addressed to all the known unsecured ore-
 
 608 
 
 ARPvAXGEMENTS. 
 
 Form 748. ditors of the CO., and S. [one of the applicanis'] to be chairman and report result : 
 see Richards cf Co., Fry, J., 21 May, 1878. B. 964. 
 
 Form 749. In the case of the Wedgwood Coal and Iron Company, Limited, the following 
 form of advertisement was used. 
 
 In the High Court of Justice, Chancery Division. Vice-Chancellor Malins. 
 In the matter, &c. Notice is hereby given that the Vice-Chancellor Malins has 
 directed a meeting of the debenture holders of the above-named company to 
 be summoned pursuant to the above-named statutes, for the purpose of ascer- 
 taining their wishes as to the scheme (a print whereof initialed Ijy Mr. F. C. 
 can be inspected at the office of the liquidator as below) for reconstruction of 
 the said company, and that such meeting will be held on Thursday the 18th day 
 
 of December, 1879, at two of the clock in the afternoon at the Coffee 
 
 House, Gresham Street, in the city of London, at which time and place all the 
 debenture holders of the company are requested to attend. The said judge has 
 appointed Mr. F. B. S. of • — • — Cannon Street, in the city of London, public 
 accountant, the liquidator of the above named company, to act as chairman of 
 such meeting. 
 
 Dated this 5th day of December, 1879. 
 
 F. B. S., Liquidator, Cannon Street, 
 
 London, E.C. 
 
 Proposed resolution to lie put to the meeting of debenture holders, to be held 
 
 on the 18th December, 1879, at the Coffee House, Gresham Street, in the 
 
 city of London. 
 
 Eesolved — That the debenture holders of the above-named Wedgwood Coal 
 and Iron Company, Limited, do hereby approve and adopt the scheme for the 
 reconstruction of the above-named company, a print of which is hereto annexed, 
 and that an application be forthwith made to the Chancery Division of the 
 High Court of Justice for its sanction to the said scheme. 
 
 N.B. — The debenture holders will not be entitled to vote unless they produce 
 to the liquidator their debentures before or at the meeting. 
 
 F. B. S.
 
 SPECIAL ACTS. 
 
 INTEODUCTOEY NOTES. 
 
 Companies incorporated under the Companies Act, 18G2, occasion- Application by 
 ally find it necessary to apply for Special Acts of Parliament. under the Act 
 
 Of those which so apply a considerable number are companies formed of 1862. 
 to carry on gas or water works, for such companies generally require 
 parliamentary powers in order to caiiy on business in the most effective 
 manner, and although in some cases a provisional order of the Board of 
 Trade, made mider the Gas and Water Facilities Acts [st/p'a, p. 105], 
 and duly confirmed by Parliament, may be sufficient ; there are many 
 cases where such an order cannot be obtained or where an application to 
 Parliament in the ordinary way is deemed preferable. 
 
 But application by companies other than gas and water, arc hj no Instance.s. 
 means uncommon, especially in the following cases : 
 
 (a.) Where it is desired to obtain compulsory powers for the acquisi- 
 tion of land or power to acquire land from persons who can 
 only sell under the Lands Clauses Consolidation Act, 1845. 
 See Forms 738, 739, 740, infra, 
 {b.) Where it is desired to obtain general powers to open roads and 
 
 streets, e.g., for the purpose of laying tubes, pipes, or wires. 
 (c.) Where a company desires to acquire special privileges, e.g., an 
 exclusive right to establisli a market or a corn exchange. See 
 Form 640a, infra, 
 (d.) Where a company desires to obtain an extension of its objects. 
 
 See Forms (!41 and G42, infra, 
 (e.) Where a company desires to create preference shares ranking in 
 priority to existing preference shares, or to issue debeutm-es 
 ranking in priority to existing debentures, and is unable to do 
 it except with the authority of Parhament. See Forms 740, 
 74C. 
 (/.) Where a company desires to capitalize arrears of preference divi- 
 dend, or to obtain power to reduce its capital without proceed- 
 ing under the Acts of 1867 and 1877. See Form 743, 744. 
 (g.) Where two or more companies desire to amalgamate without 
 
 winding up. See Forms 743, 744, 
 Where a company incorporated under the Act of 1802 applies to Re-iucor- 
 Parliament for a private Act it is very common to take the opportunity i'o™ti°"- 
 of procuring the dissolution of the company and the re-incoriooratiou of 
 
 K R
 
 610 
 
 SPECIAL ACTS. 
 
 As to injunc- 
 tions restrain- 
 ing applica- 
 tions. 
 
 As to injune 
 tions to 
 restrain appli- 
 cation of 
 company's 
 funds in jiro- 
 moting bill. 
 
 its members as a company subject to the provisioDS of the Companies 
 Clauses ConsoHclation Act, 1845. See Forms 750, 751, infra. 
 
 By this means the company, among other advantages, gets rid of the 
 word " limited " as part of its name, ceases to be liable to make the 
 retmms required by the Act of 1862, and obtains the credit attaching to 
 a company incorporated by special Act of Parliament. It must, however, 
 be borne in mind that in becoming subject to the Act of 1845 the com- 
 pany loses much of the freedom which a company subject to the Act of 
 1862 enjoys : its power to increase its capital at pleasure is lost ; its 
 powers of borrowing are strictly limited, and its regulations are only 
 alterable by Parliament. As already mentioned \_sirpra, j). 88], some 
 companies are formed expressly with a view to applying to Parliament 
 for an Act of dissolution and re-incorporation. 
 
 "Where an apj)lication to Parliament is contemplated it must be con- . 
 sidered whether there is any danger of the application being impeded 
 by injunction. Primd facie every person (including a company) has a 
 right to apply to Parliament upon any subject he pleases, but the High 
 Court of Justice, by virtue of the jurisdiction m personam inherited by 
 it from the Court of Chancery, can in a proper case restrain a person 
 from making or proceeding with an application to Parliament. Never- 
 theless to justify such an interference a very special case must be made 
 out, and it has been said that it is difficult to conceive or define what 
 are the cases in which it will be proper for the Court to exercise the 
 jurisdiction. See further Steele v. North Metropolitan Ry. Co., 2 Ch. 
 237 ; In re London, Chatham and Dover Co., 5 Ch, 671 ; Telford v. 
 Metropolitan Bd. of Works, 13 Eq. 575. In these circumstances there is 
 rarely any danger of an inj miction being granted to restrain the applica- 
 tion. 
 
 Although however the Court will not, except as before mentioned, 
 restrain a company from applying to Parliament, it will, even at the 
 instance of a single dissentient member, restrain the application of the 
 funds of a company in defraying the expenses of obtaining an Act alter- 
 ing in any way the constitution of the company. Munt v. Shrewsbury 
 and Chester Bail. Co., 13 Beav. 1 ; Simpson v. Denison, 10 Ha. 51 ; 
 Vance v. East Lane. Rail. Co., 3 K. «fc J. 50 ; Mathias v, Wilts and 
 Berks Canal Co., W. N. 1880, 91 ; Caledonian Co. v. Solivay Junction 
 Co., 32 W. E. 173 ; 49 L. T. 526. In the case last mentioned the 
 Court refused to restrain the company from applying to Parliament, but 
 the company had to give an undertaking not to apply any of its funds 
 in promoting the bill. 
 
 Accordingly if with the approval of the majority of the members the 
 company's name is to be used in applying to Parliament for an Act to 
 alter the constitution of the company, those who use it must be prepared 
 themselves to undertake the expenses. If the bill becomes law the usual 
 [infra, p. 621] clause will have been inserted requiring the company to 
 pay the expenses, but if it does not become law the expenses cannot be 
 paid out of the company's funds. The directors very commonly under-
 
 INTEODUCTOEY NOTES. Oil 
 
 take the risk in such a case, or if necessary a guarantee fund is sub- 
 scribed by those members who support the application. 
 
 Of course the Court will not restrain the application of the funds in Power ia 
 promoting such a bill where the memorandum of association of the com- ™^'"°''^" ""^• 
 pany gives the requisite power. See supra, p. 88. And this being so 
 it is desirable, where a company is to be registered under the Act of 
 1862 and an application to Parliament is in contemplation, or is even 
 remotely probable, to give ample powers by the memorandum of associa- 
 tion. 
 
 The procedure in regard to private bills is described in Sir Thomas Procedure in 
 Erskine May's work on Parliamentary Practice, where full information Parliament, 
 on the subject will be found. It may however be convenient here to 
 give a brief outline of the procedure in the case of a bill promoted by a 
 company registered under the Act of 18G2, and in so doing the wiiter 
 begs to acknowledge his obligations to the work above referred to. 
 
 AVhere it is desired to obtain a private Act it is necessary to comply Preliminaiy 
 with certain preliminary conditions imposed by the standing orders of '^^^ ' ^'^^^' 
 each of the Houses of Parliament, for although indulgence is sometimes 
 granted where these orders have not been complied with, it is only to be 
 obtained in special cases. 
 
 The following are short particulars of some of the principal standing 
 orders which a company applying for an Act has to comply with : — 
 («.) Where it is intended to apply for leave to bring in a bill for in- 
 coi-porating, regulating, or giving powers to a company, and 
 also in most other cases where bills are proinoted by companies 
 formed under the Act of 18G2, notices containing the prescribed 
 particulars have to be advertised in the Gazette and sometimes 
 in local papers in the months of October or November imme- 
 diately preceding the application for the bill. 
 (&.) On or before the 15th of December immediately preceding the 
 application for a bill by which any lands or houses are intended 
 to be taken, and also in certain other cases, application in writ- 
 ing has to be made to the owners, lessees and occupiers in the 
 prescribed manner, and lists of such persons containing various 
 particulars must be made out. 
 (f.) In certain cases, e.g., where any lands or houses are intended to 
 be taken, plans, books of reference and sections have to be de- 
 posited with the Clerk of the Peace for the county on or before 
 the 30th of November immediately preceding the application 
 for the bill. 
 {d.) On or before the 21st of December the petition for leave to bring 
 in the bill with a declaration in the prescribed form and a 
 printed copy of the bill annexed must be deposited in the pri- 
 vate bill office. The petition should be superscribed " To the 
 honourable the Commons of the United Kingdom of Great 
 Britain and Ireland in Parliament assembled," and in the case 
 of a company must be under its common seal. 
 
 R B 2
 
 6J3 
 
 SPECIAL ACTS. 
 
 Memorials 
 
 where 
 
 Standing 
 
 Orders not 
 
 complied 
 
 with. 
 
 Examination. 
 
 Presentation 
 ol' the petition. 
 
 First rcadin:r. 
 
 {e.) On or before the Slst of December the estimates, declarationB, 
 and lists of owners, lessees and occupiers which are required in 
 certain cases must be deposited. 
 (/.) As respects bills for the incorporation of joint stock companies, 
 certain other documents must be deposited on or before Hist 
 December. 
 "When the time for depositin<>- documents and complying with the 
 other preliminary conditions has expired, persons who desire to oppose 
 the bill can deposit in the private bill ofhce memorials complaining of 
 non-compliance with any of the standing orders. 
 
 In due course the petitiDU comes on for examination. The examina- 
 tion is made by one of the Examiners. These persons are officers of 
 the House of Commons and as such are called " The Examiners of 
 Petitions for Private Bills," and they are also officers of the House of 
 Lords, and as such are called" The Examiners of Standing Orders for 
 Private Bills," and accordingly the examiner ascertains on behalf of each 
 House whether the standing orders of that House have been com- 
 plied with by the promoters of the bill. The examination of petitions 
 commences on and after 18th January. 
 
 Upon the examination the petitioners and the memorialists (if any) 
 will be heard, and the examiner having given his decision certifies by 
 indorsement on the petition whether the standing orders have or have 
 not been complied with. 
 
 The next step is to present the petition to the House : this must be 
 done by a member, and if the standing orders have been complied 
 with, the bill is at once ordered to be brought in. If the standing- 
 orders have not been complied with, the petition will be referred to 
 the Standing Orders Committee, Avho will consider the circumstances, 
 and if they report that indulgence should be granted, either condi- 
 tionally or unconditionally, liberty will be given to bring in the bill 
 accordingly. 
 
 The bill is presented by being deposited in the private bill office, and 
 the names of the members ordered to prepare and bring in the bill are 
 printed on the back. 
 
 The bill when brought in mil be read a first time, and will then, if 
 necessary, lie referred to the examiner in accordance with the following 
 standing order (G3) of the House of Commons : — 
 
 Every bill originating in this House, and empowering or requii-ing any 
 company .... formed or registered under ttie Companies Act, 1862, .... 
 to do any act not authorised by the memorandum and articles of association of 
 such company .... shall, after the first reading thereof, be referred to the 
 examiners, who shall report as to compliance or non-compliance with the fol- 
 lowing order : — 
 
 In the case of a company formed or registered under the Companies Act, 
 1862 : The bill, as introduced or jn'oposed to be introduced in this House, shall 
 be approved by a special resolution of the company. 
 
 A copy of such special resolution 
 Bill Office. 
 
 shall be deposited in the Pi-ivate
 
 INTEODUCTORY NOTES. 613 
 
 The special resolution required by this standing order is usually When special 
 passed in the month of November or December immediately preceding [,^„°a"iy "" 
 the application, and is in most cases as follows : passed. 
 
 " That the bill submitted to this meeting, intituled ' A bill intituled an Act 
 to, &c./ be and the same is hereby approved, subject to such additions, altera- 
 tions, or variations as Parliament may thiuk iit to make therein and the direc- 
 tors shall sanction." 
 
 Standing Order 75 of the House of Commons provides that — What members 
 
 entitled to be 
 
 In case any propietor, shareholder, or member of or in any company beard by 
 
 shall by himself or any person authorised to act for him in that behalf, have examiner, 
 dissented at any meetino^ called in pursuance of Standing Oi'ders 62 to 66, such 
 proprietor, shareholder, or member shall be permitted to be heard by the exa- 
 miner of petitions, on the compliance with such Standing Order, by himself, his 
 agents, or witnesses, on a memorial addressed to the examiner, such memorial 
 having been duly deposited in the Private Bill Office. 
 
 If the examiner reports that the order has been complied with, the Examiner's 
 l)ill will in due course be read a second time, and referred to a com- report. 
 mittee, who will hear the parties interested, and consider the bill in ,.ff|"* „ , 
 
 ' i ' reading and 
 
 detail. committee. 
 
 Persons who desire to oppose the bill can present petitions against it Opposition 
 by depositing the same in the private bill oifice, within ten days after ^° committee, 
 the first reading. Sometimes liberty is given to present a petition after 
 the expiration of the prescribed period. 
 
 AYhether a petitioner is or is not entitled to be heard against a bill, Lor us sian 
 is in many cases a question of great nicety. The rules on the subject 
 will be found in May's Parliamentary Practice, p. 817, et seq., and in 
 .Smethurst on Locus standi, and it will be sufficient here to say that a 
 locus standi is allowed to owners, lessees and occupiers of land proposed 
 to be compulsorily taken, and also, subject to various qualifying ruies 
 and exceptions, to all persons whose interests might be prejudiced or 
 affected by the bill. 
 
 As regards shareholders, it is provided by Standing Order 131 of the Loms standi 
 House of Commons that :— ^ ^ of share- 
 
 Jioldere. 
 Where a bill is promoted by an incorporated company, the shareholders of 
 such company shall not be entitled to be heard before the committee against 
 such bill, unless their interests, as affected thereby, shall be distinct from the 
 general interests of such company. 
 
 But this order is qualified by Standing Order 132, which provides 
 that :— 
 
 In case any proprietor, shareholder, or member of or in any company, asso- 
 ciation, or copartnership shall, by himself or any person authorised to act for 
 him in that behalf, have dissented at any meeting called in pursuance of 
 Standing Orders 62 to 66, or at any meeting called in jiiirsuance of any similar 
 standing order of the House of Lords, such proprietor, shareholder, or member 
 shall be permitted to be heard by the committee on the bill on a petition pre- 
 sented to the House, such petition having been duly deposited in the Private 
 Bill Office.
 
 614 
 
 SPECIAL ACTS. 
 
 EefereoB. 
 Committee. 
 
 Report. 
 Third reading. 
 
 House of 
 Lords. 
 
 Wharncliflfe 
 order. 
 
 With regard to Standing Order 131, it may be mentioned that the 
 holders of preference shares, or of stock of a special character, are some- 
 times allowed a locus standi on the ground that their interests are 
 distinct. 
 
 All questions of locus standi are decided by the Court of Referees. 
 
 "With regard to the committee : 
 
 It lies with the promoters to prove to the satisfaction of the com- 
 mittee the preamble and the propriety of the provisions contained in 
 the bill. The promoters of the bill and such of the petitioners (if any) 
 against it as have been allow^ed a locus standi will be heard by their 
 counsel or agents ; if necessary, witnesses will be examined and cross- 
 examined ; and if requisite, amendments will be made. In due course 
 the committee will report the bill to the House. 
 
 The bill subsequently comes on for third reading, preparatory to its 
 being sent to the House of Lords. When the bill has been read a 
 third time it goes to the House of Lords, and after being read there a 
 first time, it is referred to the Standing Orders Committee, before whom 
 compliance witli such standing orders as have not been previously 
 inquired into, is proved. At this stage also, Standing Order 65 of the 
 House of Lords must be borne in mind. It is as follows : 
 
 In the case of every bill brought from the House of Commons^ iu which pro- 
 visions have been inserted in that House empowering or requiring any company 
 .... formed or registered, under the Companies Act, 1862, .... to do any 
 act not authorised by the memorandum and articles of association .... the 
 examiner shall report as to compliance and non-compliance with the following- 
 requirements : — 
 
 In the case of a company formed or registered under the Companies Act, 
 1862, the bill, as iiitroduced or proposed to be introduced into this House, shall 
 be approved by a special resolution of the company. 
 
 A copy of such special resolution .... shall be deposited in the office of the 
 Clerk of Parliaments. Provided always that if by the terms of such special 
 resolution the bill .... as introduced or proposed to be introduced into the 
 House of Commons, shall have been approved .... subject to such additions, 
 alterations, and variations as Parliament may think fit to make therein, then 
 it shall not be necessary for the purposes of this order to obtain any further 
 approval or consent in respect of any provisions inserted in the bill in the 
 House of Lords : Provided, nevertheless, that it shall be competent for the 
 committee on the bill, if they think fit, having regard to the nature and effect 
 of such provisions, to require any further evidence of the approval and consent 
 to such provisions on the part of the shareholders or members of the com- 
 pany 
 
 In most cases the special resolution having been passed as above 
 [p. filS], a second special resolution is not necessary under the above 
 order, but when, for any reason, such a resolution is necessary, it is 
 usually passed immediately after the third reading of the bill in the 
 House of Commons. 
 
 There is a standing order of the House of Lords similar to Order 75 
 of the House of Commons, supra, j). 013, under which dissentient
 
 INTEODUCTORY NOTES. 615 
 
 members will be heard by the examiner as to compliance with the above 
 order. 
 
 When the examiner has certified comphance with Order 65, tlie 1)ill 
 will come on in due course for the second reading, and if read a second Second 
 time, will be referred to a committee which, in the case of an opposed 'heading, 
 bill, consists of five members. 
 
 The committee examines the provisions of the bill, makes amend- Committee. 
 ]nents, and hears, by their counsel or agents, the parties interested. 
 
 Every petition praying to be heard against the bill is to be presented 
 by being deposited in the private bill office within seven days after the 
 day on which the bill has been read a second time. A petitioner who 
 has not opposed in the other House is not thereby precluded from 
 opposing the bill in the House of Lords. There is a standing order of 
 the House of Lords (10.5), similar to Standing Order 132 of the House 
 of Commons, supra, p. 613. And, accordingly, any dissentient member 
 of the company will be heard by the committee. 
 
 In due course the committee will report the bill to the House, and 
 having been read a third time and passed, it will either be returned to Third reading, 
 the Commons with amendments, or a message will be sent to the 
 Commons that it has been agreed to without amendment. 
 
 Shortly after the bill has been agreed to by both Houses, the royal Royal assent, 
 assent will be given, and thereupon the bill becomes an Act of Parlia- 
 ment. 
 
 Lastly, it may here be observed, that in the foregoing outline of 
 procedure, it has been assumed that the bill originates in the House of 
 Commons. 
 
 The following forms are given as examples of some of the different As to the 
 kinds of Special Acts which companies formed under the Act of 1862 °™'^' 
 from time to time obtain.
 
 SPECIAL ACTS, 
 
 The Portishead District Water Act, 1875. 
 Form 750. Ad dissolving and re-incorporatimj a water-works co formed under tM 
 
 Reconstruction -^^^ ^f 1862. 
 
 Act. 
 
 Acts such as this are frequently obtained by water, gas, and other companies. 
 
 See further, swpra, p. 88. 
 
 Recitals. Whas in the year 1874 certain persons formed themselves into a 
 
 Water Co under the name of The Portishead District Waterworks Co 
 (Limtd), in this Act called " the limtd co," for the ppose of supplying 
 water to and within the parishes, townships, and extra-parochial and 
 other places of Portishead, &c., in the county of Somerset, and such 
 CO was duly registered under "The Companies Act, 1862 :" 
 
 And whas the present share capital of the limtd co consists of 32,000?., 
 divided into 3,200 shares of 10?. each, and the co have not borrowed 
 any money on mtge : 
 
 And whas it is expedient that the limtd co should be dissolved and 
 re-incorporated, and that the co so to be incorporated (in this Act 
 called " the co ") be authorised to supply with water the parishes and 
 places afsd, and to make and maintain the reservoir and other works 
 hereinafter mentd, and that other powers be given and provisions made 
 with respect to their undertaking : 
 
 And whas plans and sections showing the lines and levels of the 
 reservoir authorised by this Act, and also books of reference containing 
 the names of the owners and lessees, or reputed owners and lessees, and 
 of the occupiers of the lands required or which may be taken for the 
 pposes or under the powers of this Act, were duly deposited with the 
 clerk of the peace for the county of Somerset, and are hereinafter 
 respively referred to as the deposited plans, sections, and books of 
 reference : 
 
 And whas the objects afsd cannot be efiected without the authority 
 of Parliamt : 
 
 May it therefore please your Majesty that it may be enacted ; and be 
 it enacted by the Queen's most Excellent Majesty, by and with the 
 advice and consent of the Lords Spiritual and Temporal, and Commons, 
 in this present Parhamt assembled, and by the authority of the same, 
 us follows ; (that is to say,)
 
 FOEMS. 
 
 G17 
 
 1. This Act may be cited as the Portislicad District Water Act, Form 750. 
 
 ^^'^^'- . Short title. 
 
 2. "The Companies Chiuses Consolidation Act, 1845," Parts I., II., provisions of 
 and III. of "The Companies Clauses Act, 1803," "The Lands Clauses certain 
 Consolidation Acts, 1845, 18(J(», and 18(i0," and " The "Waterworks Clauses incorporated. 
 Acts, 1847 and 1803," are (except where expressly varied by this Act) 
 incorporated with and form part of this Act. 
 
 3. In this Act the several words and expressions to which meanings interpretation 
 are assigned by the Acts wholly or partially incorporated herewith have '^^ term?. 
 the same respive meanings, unless there be something in the subject 
 
 or context repugnant to such construction : the expression " Ct of 
 competent jurisdiction," or any other like expression in this Act or any 
 Act incorporated herewith, shall be read and have effect as if the debt 
 or demand with respect to which the expression is used were a common 
 simple contract debt, and not a debt or demand created by statute ; and 
 the expression " superior Cts " shall include county Cts in all cases where 
 the amount of the debt or demand is within the jurisdiction for the 
 time being of county Cts. 
 
 4. The limits of this Act shall l)e the parishes, townships, extra- Limits of Act, 
 parochial and other places of, &c., in the county of Somerset. 
 
 5. From and after the passing of this Act the hmtd co shall be Incorporation 
 dissolved, and the several persons and corporations who immediately ^*'"^P^'^> • 
 before the passing of this Act were members of that co and all other 
 
 persons and corporations who have subscribed to or who shall hereafter 
 become proprietors in the undertaking of the co, and their exs, ads, 
 successors, and assigns respively, shall be and they are hby united 
 into a CO for the ppose hereinafter mentd, and shall be incorporated by 
 the name of the Portishead District Water Co, and by that name shall 
 be a body coi'porate, with peii^etual succession and a common seal, mth 
 power to pchase, take, hold, and dispose of land and other ppty for the 
 pposes of this Act. 
 
 6. The CO shall be established for the ppose of maintaining and from General pui-- 
 
 time to time renewing, extending, and enlarging the existing works of po^esof the 
 ° ° c c n company. 
 
 the limtd co, and for making and maintaining the reservoir and works 
 by this Act authorised, and for supplying Avater by meter or othenvise 
 to and within the limits of this Act, and for selling or letting on hire 
 meters and other materials necessary or desirable for such supply, and 
 for other the pposes of this Act. 
 
 7. Subject to the provisions of this Act, all the undertaking, lands, Present pro- 
 works, erections, buildings, rights, and easemts which immediately \^.^^^ ^^ 
 
 „ ' -p,.. T-ii-T limited corn- 
 
 before the passing of this Act were vested m the limtd co or any person pany vested 
 
 in trust for them, or to which the limtd co were in anywise entled, '° company 
 
 .. 'ii- incorporated 
 
 and all mams, pipes, plant, stock, meters, eiiects, matters, and things by this Act. 
 which have been by them pchsed, provided, laid down, or erected, or 
 which immediately before the passing of this Act were the ppty of the 
 limtd CO, and all moneys, securities, credits, eflTects, and other ppty 
 whatsoever which immediately before the passing of this Act belonged
 
 618 SPECIAL ACTS. 
 
 Porm 750. to the limtd co or to any trustee ou their behalf, and tlie benefit of all 
 
 contracts and engagemts entered into by or on behalf of the limtd co, 
 
 and immediately before the passing of this Act in force, shall be and 
 
 the same are hby vested in the co to the same extent and for the same 
 
 estate and interest as the same were previously to the passing of this 
 
 Act vested in the limtd co or any trustee on their behalf, and may 
 
 according to the provisions of this Act be held and enjoyed, sued for 
 
 and recovered, maintained, altei'od, discontinued, removed, dealt with, 
 
 and disposed of by the co as they think fit. 
 
 Memorandum 8. Subject to the provisions of this Act, the memorandum and articles 
 
 ^"s 1 ti n'^of* ^^ association of the limtd co shall, as to any prospective operation 
 
 tlic limited thereof, be wholly void, and the co and the shareholders shall be 
 
 be"votd^wit]i- ^^G^^pted fi'om all the provisions, restrictions, and requiremts of any Act 
 
 out prejudice which applied to the limtd co and the members thereof as such, but 
 
 HntecedenT *' "^ nothing in this Act contd shall release or discharge any person from any 
 
 breaches liability or obligation in respect of any breach of the provisions of the sd 
 
 thereot memorandum or articles of association incurred before the passing of this 
 
 Act, but such liability or obligation in respect of any such breach shall 
 
 continue, and, save as in this Act otherwise provided, may be enforced 
 
 by or on behalf of the co as nearly as may be in like manner as the same 
 
 might have been enforced by or on behalf of the limtd co if this Act had 
 
 not been passed. 
 
 Nothing to f). Except as is by this Act otherwise expressly provided, everything 
 
 lights and before the passing of this Act done or suffered by or with reference to 
 
 liabilities. the limtd CO, or the members thereof as such, shall be as valid as if the 
 
 CO had not been incorporated, and the sd memorandum and articles of 
 
 association had not been avoided by this Act, and such incorporation 
 
 and avoidance and this Act respively shall accordingly be subject and 
 
 without prejudice to everything so done or suffered, and to all rights, 
 
 liabilities, claims, and demands, both present and future, which, if the 
 
 CO were not incorporated, and the sd memorandum and articles of 
 
 association were not avoided by this Act, and this Act were not passed, 
 
 would be incident to or consequent on any and every thing so done or 
 
 suffered, and with respect to all such rights, liabilities, claims, and 
 
 demands, the co and its shareholders and ppty shall to all intents and 
 
 pposes represent the limtd co and the members thereof as such, and the 
 
 ppty of the limtd co, as the case may be, and the generality of this 
 
 enactmt shall not be restricted by any of the other clauses and provisions 
 
 of this Act. 
 
 Contract* 10, Except as is by this Act otherwise specially provided, all 
 
 prior to Act to , , . i i j^ . i i 
 
 be binding. pchases, sales, conveyances, grants, assurances, deeds, contracts, bonds, 
 
 and agreemts entered into or made before the passing of this Act, by, 
 
 to, or with the limtd co, or any trustees or persons acting on behalf of 
 
 the limtd co, or by, to, or with any other person to whose rights and 
 
 liabilities they have succeeded and now in force, shall be as binding and 
 
 (jf as full force and effect in every respect against or in favour of the co, 
 
 and may be enforced as fully and effectually, as if, instead of the limtd
 
 POEMS. 619 
 
 CO or the trustees or persons acting on behalf of the limtd co, the co had Form 750. 
 been a party thereto. 
 
 11. Nothing in this Act contd shall release, discharge, or suspend Actions, &c., 
 any action, suit, or other proceeding at law or in equity which was pend- ^'^ 
 
 ing by or against the limtd co, or any member thereof, in relation to the 
 affairs of the limtd co, or to which the limtd co, or any member thereof, 
 in relation to such affairs, were parties immediately before the passmg of 
 this Act ; but such action, suit, or other proceeding may be maintained, 
 prosecuted, or continued by or in favour of or against the co (as the case 
 may be) in the same manner and as effectually and advantageously as 
 the same might have been maintained, prosecuted, or continued by or in 
 favour of or against the limtd co, or any member thereof, as if this Act 
 had not been passed, the co and the shareholders therein being in 
 reference to the matters afsd in all respects substituted for the limtd co 
 and its members respively. 
 
 12. Every trustee or other person in whom or in whose name any Trustees of 
 lands, works, buildings, easemts, rights, ppty, or effects belonging to the '^y ^^ ^e 
 limtd co were vested immediately before the passing of this Act, and who indemnified, 
 (being authorised so to do) entered into any bond, covenant, contract, or 
 engagemt in respect of the same, or otherwise, on behalf of the limtd co, 
 
 shall be indemnified out of the funds and ppty of the co against all 
 liability (including costs, charges, and expenses) which he may sustain or 
 incur or be put to by reason of his having entered into such bond, 
 covenant, contract, or engagemt, 
 
 13. From and after the joassing of this Act, and except as is by this Company 
 Act otherwise expressly provided, the co shall in all respects be subject ii°abmtie^ of 
 to and shall discharge all obKgations and liabilities to which the limtd co, limited com- 
 immediately l)eforc the passing of this Act, were subject, and shall ^*'^"^' 
 indemnify the members, directors, officers, and servants of the limtd co, 
 
 and their respive representatives, from all such obligations and liabilities, 
 and from all expenses and costs in that behalf. 
 
 14. All water rates or rents, meter rents, and sums of money which, Recovery of 
 immediately before the passing of this Act, were due or accruing to the ^^f^'^^ ^' 
 limtd CO, shall be payable to and may be collected and recovered by the 
 
 co in like manner as if they had become payable for the like matters 
 supplied or done under this Act. 
 
 15. All persons who, inunediately before the passing of this Act, owed As to payment 
 any money to the limtd co, or to any person on their behalf, shall pay ^^^^^Yvi^^ 
 the same, with all interest (if any) due or accruing upon the same, to the of Act. 
 
 CO, and all debts and moneys which, immediately before the passing of 
 this Act, were due or recoverable from the limtd co, or for the paymt of 
 which the limtd co were, or, but for this Act, would be liable, shall be 
 pd, with all interest (if any) due or accruing upon the same, by or be 
 recoverable from the co. 
 
 IG, Notwithstanding the avoidance of the sd memorandum and Certificates, 
 articles of association, all certificates (until cancelled under the powers ^°-: *? ^^f' 
 of this Act), sales, transfers, and dispositions heretofore made or executed
 
 620 
 
 SPECIAL ACTS. 
 
 Form 750. 
 
 Books, &c., 
 
 continued 
 
 evidence. 
 
 Officers to 
 continue until 
 removed. 
 
 Present 
 registers of 
 members to be 
 continued. 
 
 Capital. 
 
 Vesting of 
 old shares in 
 present share- 
 holders. 
 
 Company sljall 
 call in and 
 cancel existing 
 share certifi- 
 cates and 
 issue new 
 certificates in 
 lieu thereof.' 
 
 under them for and with respect to any shares in the limtd co shall 
 remain in full force, and continue and be available in all respects as if 
 they had not been avoided. 
 
 17. All documts, books, and wi'itings which, if the sd dissolution and 
 avoidance had not taken place, would have been receivable in evidence, 
 shall be admitted as evidence in all Cts of law and equity and elsewhere, 
 notwithstanding such dissolution and avoidance. 
 
 18. All officers and servants of the limtd co who were in office imme- 
 diately before the passing of this Act shall hold and enjoy their respive 
 offices and employmts, together with the salaries and emolumts there- 
 unto annexed, until they shall resign the same or be removed therefrom 
 by the co, and shall be subject and liable to the like conditions, obliga- 
 tions, pains, and penalties, and to the like powers of removal, and to the 
 like rules, restrictions, and regulations in all respects whatsoe\er as if 
 they had been appointed under this Act. 
 
 19. The books kept by the limtd co for entering the names and desig- 
 nations of the members thereof, with the numbers of their shares, and 
 the proper distinguishing nmnber of such shares, shall and may continue 
 to be kept for the same purpose by the co, and shall, until some other 
 register of shareholders shall be provided by the co, be taken and consi- 
 dered as the register of shareholders required to be kept by the Companies 
 Clauses Consolidation Act, 1845. 
 
 20. The capital of the co shall be 48,000/., whereof 32,000/. is in 
 this Act called tlic original capital, and 10,000/. is in this Act called the 
 additional capital, and shall be raised in manner hereinafter mentd, and 
 the original capital shall be divided into 3,200 shares of 10/. each, which 
 shares are in this Act called the " old shares," and the co may convert 
 into stock the whole or any pt of their original or additional capital 
 when fully pd up. 
 
 21. The old shares shall be vested in the several persons who immedi- 
 ately before the passing oP this Act were the registered members of the 
 limtd CO, share for share, in substitution for the existing shares of the 
 limtd CO, and every share so vested shall be subject to the same liability 
 for calls, and subject and liable to the same trusts, powers, provisions, 
 declarations, agreemts, charges, liens, and incumbrances as immediately 
 before the passing of this Act aifectcd the share for which the same is 
 substituted, and so as to give effect to and not revoke any testamentary 
 disposition of or affecting the same. 
 
 22. The CO shall call in and cancel the existing certificates of shares 
 in the limtd co, and issue in lieu thereof certificates in the form and 
 under the conditions prescribed by the Companies Clauses Consolidation 
 Act, 1845, but the holders of such existing certificates of shares shall 
 not be entled to any certificates of proprietorship under this Act until 
 they sliall have delivered up to the co to be cancelled the certificates 
 of proj)rietorship issued to them before the passing of this Act, or shall 
 have proved to the reasonable satisfon of the co the loss or destruction 
 thereof.
 
 FOllMS. 621 
 
 23 — !)0. ^^Miscdlaneuus iyrovisions.'\ Form 750. 
 
 1)1. All costs, charges, and expenses of and incident to the preparing Expenses of 
 Tor, obtaining, and passing of this Act, or otherwise in relation thereto, Act- 
 si i all be pd by the co. 
 
 The above Act is set out rather fully, becaiise it contains many of the common 
 furm claiises which are referred to in the subsequent forms. 
 
 The Brighton Aquarium and Improvements Act, 1869, 
 32 & 33 Vict. c. 88. 
 
 Act dissolving and re-incorporatiny a co formed under llic Act of 1862, Form 751. 
 cind conferring various jmivers. Reconstruction 
 
 Act. Compal- 
 This is another example of an Act for the reconstruction of a company sory powers, 
 formed under the Act of 1862. This Act may be compared with that of the 
 Scarborough Aquarium Company [38 & .39 A'ict. c. 149], in which case the neces- 
 •sary powers were obtained without re-incorporating the company. 
 
 The Act recites (1) that the construction of a marine aquarium on a 
 large scale would be of considerable public utility, as well as afford an 
 agreeable resort and place of recreation to the inhabitants of and visitors 
 to Brighton ; and the registration of Tlic Brighton Marine Aquarium 
 Co, Limtd, in 1868, pursuant to the Act of 18G2 : (2) that it is expe- 
 dient that the co should be authorised to construct a new road and sea 
 wall from the eastern end of the Grand Junction Road at Brighton to 
 the north end of the Chain Pier at Brighton, and to make the improve- 
 rats delineated on certain plans hereinafter described as the amended 
 deposited plans ; and, inasmuch as such new road and sea wall would be 
 a great public improvemt to Brighton, it is expedient that the corpora- 
 tion of the town of Brighton should be empowered to contribute towards 
 the cost of such construction such sum or sums of money and afford such 
 other aid as they think fit, and to borrow the money necessary for that 
 purpose : (3) that it is expedient for the ppose afsd that the Bright- 
 helmstone Suspension Pier Co and the Corporation should be severally 
 and respively empowered from time to time to contract with the co for 
 gTanting to the co certain estates and interests in or right or easemts in 
 or over certain portions of the land belonging to the Brighthelmstone 
 Suspension Pier Co and the Corporation respively and upon such terms 
 as they the contracting parties may agree upon, and to execute all such 
 deeds and to do all such acts as may be necessary or expedient for 
 giving effect to contracts : (4) that plans and sections with -a book 
 of reference have been deposited, &c. : (5) that some of the objects afsd 
 cannot be effected without the authority of Parliamt : It was therefore 
 enacted — 
 
 1. \_Short title.'] 2, \_Incorporation of General Acts.'] 3. [Inlerpre- 
 iation of terms.] 
 
 -t to 12. \_Usual Reconstruction (JIauscs, supra, Form 750.] 
 
 13. Subject to the provisions of this Act, the co may make and main- Power to make 
 tain the roads and other works shown on the amended deposited plans, ^'l'^'^"'^™ ^^
 
 622 
 
 SPECIAL ACTS. 
 
 Form 751. 
 
 to construct 
 works. 
 
 Company to 
 constract the 
 new road 
 and sea wall 
 to the satis 
 faction of the 
 corporation. 
 
 Company to 
 complete the 
 new road and 
 sea wall within 
 two years. 
 
 The new road 
 when com- 
 pleted may be 
 dedicated to 
 the use of 
 the public. 
 
 Powers for 
 compulsory 
 
 in the lines and according to the levels and within the limits of devia- 
 tion shown on the amended deposited plans and sections, and may 
 excavate, construct, arch over, or otherwise cover in caverns, buildings, 
 tanks, tunnels, and air shafts necessary for the pposc of their under- 
 taking, together with all proper works and conveniences connected- 
 therewith ; and for any of the pposes afsd may enter upon, take, 
 appropriate, and use such of the lands delineated on the amended depo- 
 sited plans and described in the deposited book of reference as may be 
 necessary : and the co may erect upon the eastern, western, and southern 
 boundaries of the aquarium site a dwarf wall three feet six inches in 
 height, and an ojien iron fence on the top of such wall two feet six inches 
 in height, making together six feet, and the southern boundary of the 
 aquarium site shall be next to the north side of the new road to be con- 
 structed under the powers of this Act : Provided always, that it shall 
 not be lawful for the co to acquire, otherwise than by agreemt, any 
 lands belonging to the corporation ; but the lands which may be set 
 apart by the corporation, or privileges or rights over the same which the 
 corporation may grant for the pposes of the co, shall be so set apart or 
 granted subject to such conditions as the corporation and the co may 
 agree on, but without pecuniary paymt other than a nominal rent : Pro- 
 vided also, that so far as regards any deviation fi'om the amended depo- 
 sited plans and sections, although within the limits of deviation shown 
 thereon, the same shall only be made with the consent of the corporation, 
 by writing under their common seal : Provided also, that the co shall 
 not acquire any land seaward of the toe of the sea wall. 
 
 14. The CO shall construct the new road shown on the amended de- 
 posited plans, from the eastern boundary of the sd Grand Junction Road 
 marked on that amended deposited plan, which shows the ground plan 
 to and across the north end of the Chain Pier, so as to extend to and 
 communicate, free fi'om all obstructions, with the lands lying to the 
 eastward of the Chain Pier Co's lands, and shall protect the sd new road 
 on the south side thereof by a sea wall as far eastward as the west side 
 of the Chain Pier, and such new road shall consist of a carriage road 
 and footway, which shall be together not less than sixty feet wide, and 
 the sd nevy road and sea wall shall be constructed according to plans to 
 be approved by the corporation under their corporate seal, and shall be 
 completed in all respects to the satisfon of the corporation. 
 
 15. The sd new road and sea wall shall be completed within two years 
 from the passing of this Act, or such extended time (if any) as the cor- 
 poration may under seal agree on. 
 
 IC. So soon as the sd new road is completed to the satisfon of the corpo- 
 ration they may declare the same to be thenceforth dedicated for the use 
 of the public, free from all toll or charge for the use of the same, and 
 the same shall thenceforth be a publ.c highway, subject to the provisions 
 in the next section as to the repair thereof. 
 
 17 to 37. [Miscellaneous p'ovisions.] 
 
 ns. The powers of the co for the compulsory pchasc of lands shall
 
 FOEMS. 623 
 
 not be exercised after the period of two years from the passing of this Form 751. 
 
 -^^^- purchases 
 
 ol). [Period for completion of tcorhs.'] limited. 
 
 40. Nothing in this Act contd shall be held or construed to prevent Companj- may 
 the CO from making such alterations, additions, or improvemts in the ^^^^ &c^Tii 
 aquarium or any ornamental grounds connected therewith as they from aquarium, 
 time to time think fit, but the provisions and restrictions of this Act 
 
 with respect to elevation of buildings, use thereof, and nuisance shall be 
 applicable thereto : Provided nevertheless, that the co shall not make 
 such alterations, additions, or improvemts except on the space and 
 within the limits shown on the amended deposited plans without the 
 consent of the corporation under seal first had and obtained. 
 
 41. \_Power to enter into agreemts v:ith corporation in regard to certain 
 matters.'] 
 
 42. The aquarium and other the works and ppty of the co shall be Protection of 
 deemed public within the meaning and for the pposes of the Acts from 
 
 time to time in force with respect to malicious injuries to public ppty. 
 
 43. In addition to any byelaws which may be made by the co pursuant Tower to 
 to the provisions contd in any of the Acts wholly or partially incorpo- i.^^,.j. 
 rated herewith, it shall be lawful for the co from time to time to make 
 byelaws and regulations for the convenient inspection of the aquarium 
 
 and other works of the co by the public, for the protection of the works 
 and ppty of the co, for preventing the smoking of tobacco in, under, or 
 upon any part of the works of the co ; and for such pposes so much of 
 " The Harbour, Docks, and Piers Clauses Act, 1847," as has relation to 
 byelaws to be made by the undertakers, except so much of section eighty- 
 three as states the objects for which byelaws may be made, shall be in- 
 corporated with this Act. 
 
 44. to 50. [Further miscellaneous clauses.] 
 
 The Crystal Palace Go's Act, 1877, 40 & 41 Vict. c. 117. 
 
 Act dissolving a7id re-incoyyorating a co incorjwrated hj royal charter, Form 752.. 
 and conferring poiver to issue ineference stock taJwig piioritg over Act for 
 
 existing stock. reconstruction. 
 
 Pre-preference 
 
 The necessity for an Act empowering a company formed under the Act of ^''°^'^' 
 1862 to create pre-preferential capital occasionally arises, but in most cases the 
 power can more readily be obtained by a reconstruction [supra, p. 551 et seq.'], 
 or a perpetual debenture stock can be created, which of course takes priority 
 over all shares, whether preference or ordinary. 
 
 The Act recites (1) the formation of the co under a deed of settlemt 
 of 28 May 1852, and charters of 28 January 1853, and 22 December 
 1855, and that Acts of Parliamt relating to the co, and bearing its 
 name, have been passed, and the sd Acts are set forth in a schedule to 
 this Act : (2) that co possessed of large estate, whereon the Crystal 
 Palace has been erected, and is surrounded by gardens and ornamental 
 grounds, and the co are also possessed of freehold or other interests in
 
 624 
 
 SPECIAL ACTS. 
 
 Porm 752. lands, &c. : (3) that it is couvenient that the deed of settlemt and flic 
 charters should be annulled, and that the co should be re-incorporaicd 
 under the Companies Clauses Consolidation Act, 1845, and the Acts 
 amending that Act, and that the powers herein contd be conferred U]juu 
 the CO : (4) that whas the capital stock of the co noAV consists of the fol- 
 loAving sums, namely, a sum of 1,002,G7.5/. ordinary stock, a sum of 
 1(;0,39.5/. preference stock, and a sum of :527,000/. Crystal Palace deben- 
 ture stock, which forms the first charu,-e upon the undertaking of the co : 
 (5) that the sd debenture stock is eutled to interest or dividend at the 
 rate of six p. c, and the sd preference stock is entled to dividend at the 
 rate of seven p. c. p. a., such interest and dividend amounting in the 
 aggregate to 30,848Z. per annum, and the revenue of the co applicable 
 to the paymt of dividend npon the ordinary stock of the co has been 
 insufficient to admit of any such dividend during the past two years : 
 ((■>) that by the sd deed of settlemt (section 10.5) powers were reserved 
 for the absolute dissolution of the co, and in the case of a dissolution 
 the directors are required and empowered to call in, sell, dispose of, and 
 convert into money all such pts of the estate and eflFects of the co (both 
 real and personal) as shall not then consist of money, and it is also pro- 
 vided that the surplus estate and eflects (if any) of the co shall be 
 divided, after paymt of all just demands upon the co, among the share- 
 holders in proportion to their respive shares : (7) that unless some 
 arrangemt can be effected for redeeming the sd debenture and prefer- 
 ence stocks on terms affording to the ordinary stockholders a prospect of 
 increased dividend, it is apprehended that attempts may be made to dis- 
 solve the co in order that their ppty may be realised and divided among 
 the shareholders : (8) that it is believed that, with the object of pre- 
 serving or adapting the Crystal Palace to })poses of general utility, a new 
 debenture stock may be subscribed for at a low rate of interest, which 
 the CO will be wilhng to create, provided the debenture and preference 
 stockholders of the co will consent to the redemption of their respive 
 stock out of money raised in that manner : (9) that it is desired by the 
 holders of the ordinary stock of the co that the amount thereof should 
 be divided into two classes of stock in the manner hereinafter described : 
 (10) that it is also expedient that the co should have power to transfer 
 or demise its undertaking, or any specific portions thereof, from time to 
 time, with such consent and restrictions as hereinafter are prescribed : 
 and (11) that the pposes of this Act cannot be effected without the 
 authority of Parliamt : It was therefore enacted : — 
 
 1. [_Shorf UUp.'\ 2. [^Incorjwration of general Ads.'] 3. \^Interpreia- 
 tian clause.'] 4. [^Deed of settlemt and charters to he void without preju- 
 dice to remedies for antecedent hreaches tharenf] ,5. [Act not to authorise 
 admission by paymt on the Lord's Day.] 
 
 6. Notwithstanding the avoidance of the sd deed of settlemt and 
 charter and supplemental charter, the co shall remain as from the grant 
 of the charter of incorporation, and continue incorporated thereunder 
 until the passing of this Act, and thenceforth under "The Companies 
 
 Company to 
 
 continue 
 
 incorporated.
 
 FORMS. 02 5 
 
 Clauses Consolidation Act, 1845," and the Acts amending the same, by Form 752 
 the name of the " Crystal Palace Co," for the ppose of maintaining the 
 Crystal Palace, &c. 
 
 7. Notwithstanding such avoidance, the co shall remain and be seised Company to 
 aiid possessed of and entled to all the estates, moneys, ppty, effects, |^°™y "j ^ 
 claims, and demands whatsoever, of or to which the co were by virtue of their pro- 
 the annulled deed of settlemt or charters, or otherwise immediately ^'^^'^^'• 
 before the passing of this Act, seised, possessed, or in any way entled 
 
 at law or in equity, subject to all the liabilities, contracts, debts and 
 obligations respectively affecting the same immediately before the pass- 
 ing of this Act. 
 
 8. [All 2Jc^i(ises, sales, conveyances, leases, d-c, to remain in force.} 
 0. [Actions not to abate.} 10. [Debts due to and by the co to be iid to 
 and by tlie co.} 11. [Present officers to continue.'] 12. [Books to re- 
 main evidence.} 
 
 13. It shall be lawful for the co from time to time, with the consent Providing for 
 of three-fifths in value of the stockholders (entled to vote at ordinary of'^ijebenture 
 meetings) being present in person or by proxy at any general meeting and preference 
 or meetings of the co duly convened with notice of the matter, to pass a '^ '^^' 
 resolution offering to redeem the debenture stock of the co by paymt of 
 cash to the holders of such stock, at such rate as the directors may there- 
 after determine, or as may be defined by such resolution, and every such 
 resolution shall name a time and place at w^hich the redemption of the 
 debenture stock shall take effect and be completed if accepted by the 
 proportion of the debenture stockholders, and pursuant to the provisions 
 hereinafter specified : 
 
 1. The directors of the co shall, with all convenient despatch after Meeting of 
 
 the passing of any such resolution as afsd relating to the .stocklioWCTs 
 redemption of the debenture stock, summon a special meeting to consider 
 of the debenture stockholders of the co to consider and resolve redemption 
 upon the same ; and such meeting shall be called by an adver- 
 tisement pubhshed once in each of two consecutive weeks 
 in one or more London daily newspapers, and by a circular 
 addressed to each person appearing from the books of the co 
 to be a registered holder of debenture stock ; and such circular 
 shall set forth a copy of the resolution pursuant to which the 
 offer of redemption is made, and state the rate or price at which 
 it shall have been determined to offer to redeem the debentm-e 
 stock ; and such circular shall be sent by post addressed to or 
 left at the last known or usual place of abode of each such 
 person at least ten clear days before the day fixed for the holding 
 of such meeting, and a statutory declon of the secretary or other 
 officer of the co that such circular has been issued as afsd shall 
 be sufficient evidence thereof. 
 
 2. At any meeting of the debenture stockholders summoned as afsd, Piocedure at 
 
 -, ■, 1 1 1 -I , • 1 ^11 nieeting oi 
 
 the debenture stockholders present m person or by proxy shall debenture 
 proceed to elect a debenture stockholder to preside at such stockholders. 
 
 s s
 
 626 
 
 SPECIAL ACTS. 
 
 Form 752. 
 
 Offer may be 
 declined. 
 
 Offer may be 
 accepted. 
 
 Providing for 
 redemption of 
 preference 
 atock. 
 
 Power to 
 create new 
 debenture 
 stock. 
 
 New debenture 
 stockholders 
 m.ny be em- 
 [)Owcred to 
 
 meetiug, and if more than one-foiu'th in number and value of 
 the debenture stockholders then present in person or by proxy 
 determine against the redemption of the debenture stock upon 
 the terms so offered to them, such offer shall be deemed to be 
 absolutely declined, and shall be of no effect. 
 
 3. If at any such meeting not less than three-fourths in number and 
 
 value of the debenture stockholders then present in person or by 
 proxy determine that the redemption of the debentm'e stock shall 
 be effected upon the terms specified in the circular summoning 
 such meeting, then all the debenture stock of the co subsisting 
 at the passing of this Act shall be redeemed upon those terms 
 and at the place named in the preceding resolution offering to 
 redeem the debenture stock, and at the time therein named, or 
 as soon thereafter as may be convenient, each debenture stock- 
 holder shall deliver up the certificate of his debenture stock for 
 cancellation, and shall be entled to receive instead thereof, on 
 pro\ing his title thereto to the satisfon of the directors, the sum 
 of cash to which he may be entled pursuant to such circular ; 
 and as from the delivery of each certificate of debenture stock 
 in manner afsd such certificate shall be deemed to be cancelled, 
 and the debenture stock represented thereby shall be deemed 
 to be extinguished, and as fi'om the time so named interest 
 or dividend shall cease to be payable on the debenture stock 
 of the CO subsisting at the passing of this Act. 
 
 4. The provisions of this enactmt in reference to debenture stock 
 
 and the holders thereof shall apply and have effect in like 
 manner (midafis mutandis) in reference to the preference stock of 
 the CO subsisting at the passing of this Act and the holders thereof. 
 
 14. In order to raise the money for redeeming the debenture stock 
 and preference stock subsisting at the passing of this Act, or either of 
 them, as in this Act provided, but not until the redemption of such 
 stock or stocks shall have been accepted as in this Act provided, the 
 CO may create and issue a stock, to be called Crystal Palace New 
 Debenture Stock, of an amount sufficient to enable them to effect the 
 redemption of the stocks or stock to be redeemed as afsd, and such 
 new debenture stock shall be entled to dividend at such rate, not 
 exceeding four p. c. p. a., and to such other special rights and privileges 
 (if any) as the co may, by the resolution creating the same, determine, 
 and the dividend on such new stock, if created for the ppose of redeem- 
 ing the debenture stock or the debenture and preference stocks sub- 
 sisting at the passing of this Act, shall be a first charge upon the 
 revenue of the co, and if created for the ppose of redeeming the pre- 
 ference stock alone shall be a charge upon such revenue next after the 
 debenture stock subsisting at the passing of this Act. 
 
 15. The CO may by resolution attach to the new debenture stock a 
 condition that the holders thereof may elect a director or directors of 
 the CO, and (if they think fit) define the qualification of the director or
 
 rOEMS. G27 
 
 directors so to be elected, and the number of the directors of the co Form 752. 
 shall be deemed to be increased by such director or directors. appoint 
 
 16. The CO may also from time to time resolve that all or part of directors, 
 the annual sum by which the interest or dividend of the stock or stocks Application of 
 
 SU.D1 sftvcd, oy 
 
 I'cdeemed shall exceed that of the new debenture stock created for redemption, 
 such redemption shall be applied to any pposes in connexion with the 
 Crystal Palace, and such annual sum shall be appropriated and applied 
 accordingly, 
 
 17. From and after the passing of this Act, the ordinary capital stock Ordinary 
 
 09.111 till 
 
 of the CO, amounting to 1,002,675/., shall be divided in the manner 
 hereinafter provided ; that is to say, one fifth part thereof, namely, 
 200,535?., shall be designated " A stock," and the proprietors thereof 
 shall (subject to the paymt of dividend on the debenture and preference 
 stocks of the co subsisting at the passing of this Act, and to the 
 paymt of dividend upon Crystal Palace new debenture stock, if and 
 when created) be entled to an annual dividend at the rate of seven 
 and a half p. c. out of the divisible profits of the year, but no deficiency 
 of dividend on such " A stock " in any one year shall be made good 
 out of the profits of the co accruing in any subsequent year, and the 
 remaining four-fifths, namely, 802,140/., shall be called " B redeemable 
 stock." 
 
 18. \_Gancelling of existing certificates.'] 
 
 19. There shall be put (by endorsemt or otherwise) upon each cer- Certificates of 
 tificate of " 1\ redeemable stock " a statemt that the same is not entled ^bie stock"'" to 
 to share in the divisible profits of the co, but is redeemable out of surplus contain notice 
 profits upon the terms of " The Crystal Palace Co's Act, 1877." Lue!'"*' ° 
 
 20. [Applicori of revenue.] 21. \^MetJiod of redeeming B stock.] 
 
 22. The proprietors of " A stock " shall have the same voting power As to votes 
 
 after the passing of this Act as the holders of ordinary stock, represented ^l proprietors 
 
 ^ ° *' ' '^ of sued shares, 
 
 by such " A stock," would have been entled to if this Act had not been 
 
 passed ; that is to say, the proprietor of every one pound of " A stock " 
 
 shall be entled to one vote in respect thereof. The proprietors of " B 
 
 redeemable stock" shall not be entled to vote in respect thereof at any 
 
 meeting of the co. 
 
 23. {^Receipt in case of persons not sui juris.] 
 
 24. Save as in this Act expressly provided, nothing in this Act con- Maintaining 
 tained shall prejudice or affect the debenture or preference stocks of the preference^ 
 co, or the rights of the proprietors thereof respively. stocks. 
 
 25. [When first orcUnarii meeting to he held.] 26. {_Numher of direc- 
 tors.] 27. [Qualification of directors.] 28. [Present directors and auditors 
 continued in ofiice.] 
 
 29. The CO may, subject to the provisions hereinafter contd, authorise Transfer of 
 the directors to sell and transfer absolutely, or to demise from time to ^ndertakin;,'. 
 time for any term or terms of years, The Crystal Palace or the lands 
 thereof, or any pt thereof, or any interest therein or in any pt thereof, to 
 any person or body, either for a gross sum or for a rentcharge, or in 
 conson wholly or in pt of fully pd up shares in the capital of any co to 
 
 s s 2
 
 628 
 
 SPECIAL ACTS. 
 
 Form 752. whom the co may agree to make such sale, transfer, or demise, or to 
 admit any person or body to a limtd interest in the Palace or the lands 
 thereof, or any pt thereof ; and the following conditions, amongst others, 
 shall apply to any such sale, transfer, or demise : 
 
 («.) A resolution conferring such authority shall be reduced into 
 writing, and shall be twice read and put to the vote, and shall 
 be carried each time by a majority of at least two-thirds in 
 value of the stockholders present in person or by proxy at any 
 ordinary or special meeting of the co, and being entled to vote 
 thereat, and shall be confirmed by a like majority at a subse- 
 quent ordinary or special meeting to be held after the expiration 
 of fourteen days, but before the expiration of two calendar 
 months next after the meeting at which such first resolution 
 shall have been passed : 
 
 (&.) Every such sale, transfer, or demise shall be subject to such terms 
 and conditions, if any, as shall be expressed by both or cither of 
 the resolutions passed at such meetings : 
 
 (c.) Every such sale, transfer, or demise shall be subject to a primary 
 lien on the pt of proprietors of the debenture stock of the co : 
 
 (d.) All rent reserved and pd in conson of such demise shall lie 
 applied in the manner hinbefore directed with respect to th 
 revenue of the co : 
 
 (e.) Every such demise shall contain covenants for the maintenance 
 and repair of the premes, and also a power of re-entry by the 
 CO in case of non-paymt of rent. 
 
 30. [Expenses of Act.'] 
 
 The schedule contd the titles of the Acts relating to the co. 
 
 The Hailsham Cattle Market Act, 1871, 34 Tict. c. 1. 
 
 Form 753. Act for dissolvhKj and re-incorporcding co, limtd, for continuing and holding 
 Cattle Market ^* cattle market, and for other eposes. 
 
 Act. 
 
 Form 754. 
 
 Act extending 
 objects. 
 
 The Telegeaph Construction and Maintenance Co (Limtd) 
 Act, 1883, 40 Yict. c. 15. 
 
 Act extending the objects of a co formed under the Act o/18G2. 
 
 The Act recites : that the co was established under a memorandum of 
 association bearing date the Gth day of April, 18G4, and by Clause 3 of 
 such memorandum the objects for which the co was established were 
 defined as follows, namely : — &c. : And that doubts have arisen whether 
 the sd objects include the construction, laying down, maintenance, pur- 
 chasing, hiring, letting, selling, working, and use of works and ap^xiratus 
 for the production, transmission, and use of electric, magnetic, or other 
 force and matters incidental thereto, and it is expedient that the sd 
 memorandum should Ijc amended so as to include such objects, but that
 
 FOEMS. 
 
 G29 
 
 ()l)jcct cannot be effected without the authority of Paiiiamt : It was Form 754. 
 therefore enacted : _ ' 
 
 1. IShort title.'] 
 
 2. The third clause of the memorandum of association of the co is Amendment 
 hby cancelled and the followino- clause shall l)c substituted therefor, that °/ tnemoran- 
 
 •' ° ' dum ot 
 
 is to say : (;J) The objects, &c. association. 
 
 3. After the passing of this Act the powers and constitution of the Powers of 
 CO shall be the same as if the objects mentd in the last preceding section )^-,°™|j^'Y *" 
 had been included in the memorandum of association bearing date the as if objects 
 Cth day of April, 1864, but nothing in this Act contd shall aflFect the oriiinll" 
 validity or invahdity of anything done or pending before or at the passing included in 
 
 of this Act. ' memonvn- 
 
 dum of 
 
 4. The CO shall forward to the Registrar of Joint Stock Companies a association. 
 printed copy of this Act, and it shall be recorded by him, and if such A-ct to be 
 copy is not so forwarded within three months from the passing of this ^^°^^*®^^' • 
 Act, the CO shall incur a penalty not exceeding 10/. for every day after 
 
 the expiration of those three months during which the copy is omitted to 
 be forwarded, and every director and manager of the co who knowingly 
 and wilfully authorises or permits such default shall incur the like 
 penalty, and every penalty under this section shall be recoverable sum- 
 marily. 
 
 5. \_Saving rigid s of Postmaster-General.'] 
 G. \_Expenses of Ad.] 
 
 The Standard Bank of British South Africa, Limtd, Act, 
 1881, 44 & 45 Yict. c. 120. 
 
 Ad ejdending the objects of a co formed under the Act of 1SG2. Form 755. 
 
 The Act recites that the co was established under a memorandum of ^c* extending 
 association, dated 13 October, 18G2, whereby the objects for which the 
 CO is established, include " the transacting in the colonies of the Cape of 
 " Good Hope, British KaflFraria and Natal, and in any other colonies or 
 " settlemts in that part of Africa, south of the 23rd parallel of southern 
 " latitude, and where British supremacy has been or may at any time 
 " time hereafter be proclaimed, and under the general superintendence 
 " and control, and in co-operation with a principal establishmt in 
 " London, every kind of banking business" and other business therein 
 described : And that doubts have arisen as to whether the sd objects 
 permit the carrying on of the sd business of the sd co in territories 
 wherein there has been proclamation of, but not the continuance of 
 British supremacy, and it is desirable that the co should have extended 
 powers for transacting its sd business in the colonies of the Cape of 
 Good Hope, and Natal, and in any other colonies, settlemts, or territo- 
 ries, or lands situate in Africa as herein defined ; but the same cannot 
 be effected without the authority of Parliamt : It was therefore 
 enacted : — 
 
 1. IShort title.]
 
 630 
 
 SPECIAL ACTS. 
 
 Form 755. 2. Notwithstanding any clause, matter, or thing in the memorandum 
 Extension f °^ association of the sd co contd, the objects for which the co is estab- 
 powers. lished may include the transacting of its sd business in the colonies of 
 
 the Cape of Good Hope, and Natal, and in any colonies or settlemts, or 
 territories, or lands whatsoever in any part of Afiica as hereinafter 
 defined, and whether British supremacy has or has not been there pro- 
 claimed ; and it shall be lawful for the sd co to carry on its business 
 accordingly. 
 Interpreta- g^ The word " Africa " in the memorandum of association of the sd 
 
 CO and in this Act shall mean and shall be deemed to include all territories 
 or lands situate between the equator and the thirty-fifth parallel of south 
 latitude and between the sixty-fifth parallel of east longitude and the 
 twentieth parallel of west longitude. 
 Expenses of 4, The costs, charges, and expenses of applying for, obtaining, and 
 
 passing this Act shall be pd by the sd co. 
 
 The New Zealand and Australian Land Company Limited, 
 Act, 1877, 40 & 41 Yict. c. 95. 
 
 Form 756. Act for amalijainaUng two conijjcmies formed under the Ad o/18G2, ly the 
 ^^^ZJ .J ^ formation of a new co under the same Act. 
 
 Act. This is an admirable example of an amalgamation Act. The most noticeable 
 
 features are (a) that the amalgamation is to take effect on the registration of a 
 new company under the Act of 1862, so that the amalgamated company remains 
 under that Act ; (6) that the Act is to operate both at home and abroad ; (c) 
 that dissentient shareholders are given a right to retire and claim payment of 
 the value of their shares ; (d) that debenture holders are empowered to claim 
 payment in cash ; (e) that remedies of creditors in New Zealand are carefully 
 preserved. 
 
 The Act recites : (1) that the Canterbury Co was incorporated 28 
 April, 1865, under the Act of 18C2, as a co limtd by shares, having its 
 registered office at Glasgow, and that the objects of that co w-ere the 
 pchase of lands in New Zealand, &c. : (2) that the authorised capital of 
 the co is 500,000/. in 5,000 shares of lOOZ. each, all of which shares have 
 been issued and are fully pd up : (3) tliat co empowered to borrow by 
 its articles : (4) certain special resolutions authorising the borrowing of 
 money and the issue of debentures : (5) that the co, in psuance of the 
 articles of association and the special resolutions before recited, have 
 acquired the properties of the New Zealand and Otago Agricultural and 
 Land Investmt Association, Limtd, and have issued debentures purport- 
 ing to secure in all the sum of 313,509/. 7s. bd. : (G) that the New 
 Zealand Co was incorporated 8 March, 18G2, under the Companies Act, 
 1862, as a co limtd by shares, having its registered office at Glasgow, 
 and the objects of that co, as defined in the memorandum of association, 
 were the pchase of lands, &c. : (7) that the authorised capital of the 
 New Zealand Co is 2,000,000/. in 20,000 shares of 100/. each, of which 
 18,946 issued and 1,184,125/. (being 62/. per share) pd up : (8) power 
 in articles to borrow : (9) special resolution to issue debentures : (10) 
 mtges for 390,000/. to certain persons who by a deed of trust contempo-
 
 FOKMS. 031 
 
 raneous with those indi-es of mtge the mto;ees declared themselves trus- Form 756. 
 tees for the debenture holders by whom the amounts intended to be 
 secured were actually advanced : (11) that the New Zealand Co issued, 
 as pt of the transactions intended to be carried out by the last-mentd 
 indres of mtge and declon of trust, mtge debentures for the sum of 
 S88,400/. : (12) special resolution, for reduction of capital of New Zea- 
 land Co not yet confirmed : (1.3) further resolution as to borrowing : 
 (14) that in pursuance of the special resolution last mentd the New Zea- 
 land Co have issued further debentures representing an amount of 
 120,350/. or thereabouts, and the total amount borrowed as afsd, exclu- 
 sive of the sd sum of 388,400/. (or so much thereof as now remains 
 unpaid), does not exceed the amount of the unpaid subscribed capital of 
 that CO : (1 5) that the two companies have been in operation for many years, 
 and they are respively possessed of large estates, funds, and ppty, real 
 and personal, which are estimated to be of nearly equal value in propor- 
 tion to the amount of pd-up capital in the respive companies : (16) that the 
 operations of the two companies are to a large extent carried on in the same 
 districts and with similar objects, and their interests are in a great 
 measure identical : (17) that it is intended that a co to be called the 
 New Zealand and Australian Land Co, Limtd, shall be formed and 
 registered under the Companies Acts, 18G2 and 1867, with a memorandum 
 of association in the form set forth in the schedule to this Act, with 
 relative articles of association, to the intent that the two companies may 
 be amalgamated, and that the shareholders in the two companies may 
 become shareholders in the co so to be incorporated : (18) that share- 
 holders in each of the two companies, being registered holders of more 
 than three-fourths in value of the shares in the two companies respively, 
 have in writing expressed their intention of exchanging the shares 
 held by them for shares or stock of equivalent amounts in the co to be 
 registered as afsd : (19) that it is expedient that the two companies be 
 authorised to amalgamate their undertakings without the necessity of 
 liquidating their affairs under the Companies Act, 1862, but with such 
 reservation of the rights of the creditors of the New Zealand Co as 
 against the uncalled capital of that co as is hereinafter provided for : 
 and (20) that the objects of this Act cannot be effected without the 
 authority of Parliamt : It was therefore enacted — 
 
 1. Short title. — Act to commence and take effect as at and from 
 the day of the registration of the memorandum of association of the 
 CO which is intended to be formed by the amalgamation of the two 
 companies, which period is hereinafter referred to as " the time of 
 amalgamation." 
 
 2. Notwithstanding the definition of " the time of amalgamation " Accounts of 
 hinbefore contained, the profits and losses of the two companies, as date^from ** 
 appearing in the accounts of the two companies, as from the 31 March, 3lst March, 
 187 1 ;, shall for pposes of dividend and for all other matters of account 
 
 be deemed the profits and losses of the co. 
 
 3. [Intei'pretafio/i of terms.^
 
 63-2 
 
 SPECIAL ACTS. 
 
 Form 756. 
 
 Dissolution of 
 the two com- 
 panies. 
 
 Primary lia- 
 bility of tlie 
 company not 
 to be affected 
 by continuing 
 liability of the 
 New Zealand 
 Company. 
 
 4. At and from the time of amalgamation the two companies shall, 
 ~ subject to the provisions of this Act, be and the same are hljy dis- 
 solved, and this Act shall be reported to the Registrar of Joint Stock 
 Companies for Scotland, who shall make a minute accordingly in his 
 books of the dissolution of the two companies, in the same manner as 
 if this Act were an order of the Court made in psuance of the 111th 
 section of the Companies Act, 1802. 
 
 5. \_3Iemorandmn and articles of association of the two companies to he 
 void, without prejudice to remedies for previous 'breaches.'] 
 
 G. All the ppty of the two companies, whether in Xew Zealand or 
 elsewhere, and all their rights, subject to the debentures, kc, vested in 
 the CO. The production of a copy of this Act purporting to be printed 
 by the Queen's printers, and of a certificate of the Registrar of Joint 
 Stock Companies for Scotland of the registration of the memorandum 
 of association of the co (which certificate he is hby required to give), 
 shall be conclusive evidence of the vesting of the undertakings and 
 ppty of the two companies respively by way of amalgamation in the 
 CO under this section, whether the same be situated in N"ew Zealand, 
 Victoria, Queensland, New South Wales, or any other pt of Her 
 Majesty's dominions ; and a minute of the production of such copy of 
 this Act and of such certificate, or of a notarial copy thereof, shall be 
 a sufficient record of such vesting by way of amalgamation as may be 
 required to be made in any office for the registration of deeds, land 
 register, or transfer records in New Zealand, Victoria, Queensland, New 
 South Wales, or any other pt of Her Majesty's dominions. 
 
 7. \_The two companies to subsist for certain 'pposes, e.g., to e.rccvie any 
 deeds requisite.'] 8. [jVothing to affect pirevious rights and liabilities.] 
 9. [Debts and claims of the two companies reserved.] 
 
 10. The liability of the co created by the two last preceding sections 
 shall not be affected by the reservation of the rights of the creditors of 
 the New Zealand Co, as against the uncaUed capital of that co herein- 
 after contd, but the assets of the co shall be deemed the primary 
 fund for the paymt of all liabilities, claims and demands, debts and 
 moneys due, as well from the New Zealand Co as from the Canterbury 
 Co, at the time of amalgamation ; and the reservation of the rights of 
 the creditors of the New^ Zealand Co, as against the uncalled capital of 
 that CO, shall be deemed a collateral and additional security for the 
 paymt of the liabilities, claims and demands, debts and moneys due 
 from the New Zealand Co at the time of amalgamation. 
 
 11. \_All deeds, conveyances, S,-c., to he valid and of fall force.] 
 
 12. [Causes and rights of action reserved.] 13. \_AcMons not to abate.] 
 14. [Submissions and awards relating to the two companies not to he 
 affected.] 15. [Officers of the two companies to he accountable for books, 
 &c.] k;. [Officers, &c., of the two companies to he officers, A;c., of the 
 CO.] 17. [Books, &c., to he evidence.] 18. [Certificates, <ir., to remain 
 in force.] 19, [Present register of members to he continued.] 20. General 
 saving of rights and claims.]
 
 FORMS. 
 
 033 
 
 21. The production of a copy of this Act purporting to he priuted hv Form 756. 
 the Queen's printers sliall be a sufficient authority to the Registrar of company may ^ 
 Joint Stock Companies for Scotland to register the co by the name be registered 
 of the " Xew Zealand and Australian Land Co Liratd," notwithstanding ifew^^aiaml 
 the provisions of the 2oth section of the Companies Act, 18G2. &c., Land 
 
 22. The shares, both ordinary and preference, issued in lieu or ^°™P^°y- 
 satisfon of shares in the two companies respively shall be deemed to be jeemed a con- 
 paid up in accordance with the provisions in that behalf contd in the tract made in 
 memorandum of association of the co set forth in the schedule hto, and j^g^ti^n 2^\f'^ 
 this Act shall he deemed a contract, determining that such shares shall tlio Oompanies 
 be so held within the 25th section of the Companies Act, IHiiT, and a '^ ' ' ' 
 copy of this Act purporting to be printed l)y the Queen's printers shall 
 accordingly be filed with the Registrar of Joint Stock Companies for 
 Scotland, at or before the issue of such shares, and such Registrar is 
 
 hby required, npon request and paymt of the usual fees, to file the same 
 accordingly. 
 
 23. ISharelioIders in ilie Itco coijijjanies io hecome sliareholders in the 
 co.'\ 24. \_S1iarps of co to he subject to the same trusts, &c., as sJmres of 
 the two companies.'] 
 
 2;j. Notwithstanding the amalgamation, separate registers may be Separate 
 kept of the several shares, mtge debentures, debentures, and bonds of {^q^J!*^,^'' Ytl. 
 the two companies respively. shares, &c. of 
 
 20. \_Co. to issue new certificates, and may require old certificates to jg t'le two com- 
 exchanr/ed.] 
 
 27. Nothing in this Act contd shall prevent or restrain the co, if Conversion of 
 they think fit, from converting under the provisions of the Companies st^J^.^ ^^ ° 
 Act, 1802, their capital into stock. 
 
 28. If any person or corporation holding shares in either of the two Riglit of/lis- 
 companies at the time of amalgamation shall, within twelve calendar jj^l^^jg^j^^j^^^"^^*^' 
 months of the time of amalgamation, leave at the registered office of the either of the 
 CO a notice in writing expressing his unwillingness to become a share- paniesTo be 
 holder .in the co, such dissentient shareholder may at any time within paid out. 
 such twelve calendar months require the co to pchase the interest held 
 
 by him at a price to be determined in manner hereinafter raentd, and 
 the CO shall, within GO days of receiving such requisition, comply with 
 such request, and the share and interest so purchased shall be dealt with 
 in such manner as the directors may determine. 
 
 29. The price to be pd for the pchase of the interest of any such dis- ^lo^^e of 
 sentient shareholder as afsd may be determined hj agreemt, but if the price™^°"^° 
 parties differ with respect to the same such difference shall be settled by 
 arbitration, according to the provisions of the Companies Clauses Con- 
 solidation (Scotland) Act, 1840, Avith respect to the settlemt of disputes 
 
 by arbitration. 
 
 30. The debts and liabilities of the two companies respively which are Providing f >r 
 secured on mtge debentures, debentures, or bonds, and are subsist- cTebentoe/Tf' 
 ing at the time of amalgamation, shall be a charge on the assets and dissolved 
 undertaking of the co, if and so far as the same constituted a charge on '^°™i^^^'^'^-
 
 634 
 
 SPECIAL ACTS. 
 
 Form 756. 
 
 Power to 
 borrow. 
 
 Right of 
 debenture 
 holders of 
 two com- 
 l)anies to be 
 paid in cash. 
 
 Remedies of 
 creditors of 
 New Zealand 
 Company 
 against un- 
 called capital 
 of that com- 
 pany. 
 
 Inspection of 
 register of 
 members of 
 New Zealand 
 Company. 
 
 This Act not 
 to prevent 
 
 the assets or undertaking of the co by which the same were originally- 
 incurred, but not further or otherwise, and such mtge debentures, 
 debentures, or bonds shall be as valid and effectual in relation to the co 
 as if they had been granted by the co instead of by the two companies 
 respively, and shall retain a like priority of charge (in all cases where 
 they operate as a charge) on the undertakings of the two companies 
 respively, with all the rights, privileges, and remedies belonging to or 
 incident to such mortgage debentures, debentures, or bonds respively, 
 and for the pposes of such priority, rights, privileges, and remedies, the 
 undertaking of each of the two companies respively, so loug as any of 
 their mtge debentures, debentures, or bonds subsist, shall be deemed a 
 separate undertaking. 
 
 31. Any sum to be borrowed by the co shall be postponed to the 
 mtge debentures and debentures of the two companies respively sub- 
 sisting at the time of amalgamation. 
 
 32. In case any holder of a debenture or mtge debenture of either 
 of the two companies shall, within twelve calendar months of the time 
 of amalgamation, leave at the registered office of the co a notice in 
 writing expressing his desire to be pd the principal and interest due to 
 him upon such debenture, and shall deliver up such debenture to the co, 
 accompanied by such evidence of his ownership thereof as the directors 
 shall reasonably require, the co shall, within sixty days after the date on 
 which such notice shall be delivered, and upon the debenture being can- 
 celled, pay to the holder of such debenture or mtge debenture the priu- 
 cipal and interest due on such debenture or mtge debenture up to the 
 time of paymt. 
 
 33. In the event of the co being wound up while any liability, claim, 
 demand, debt, or money which shall be due from the New Zealand Co 
 at the time of amalgamation shall remain unsatisfied, then, notwithstand- 
 ing the dissolution of the New Zealand Co and its amalgamation with 
 the Canterbury Co under the provisions of this Act, every person who 
 at the time of amalgamation shall be a present or past member of the 
 New Zealand Co shall be liable to contribute towards paymt of the debts 
 and liabilities of the New Zealand Co remaining unsatisfied at the time 
 of the winding up of the co, in the same manner and with the same 
 qualifications as if the New Zealand Co had been wound up under the 
 Companies Act, 18G2, by virtue of an order made on a peton presented at 
 the time of amalgamation. 
 
 34. The register of members of the New Zealand Co, showing the 
 names of the persons entered on such register at the time of amalgama- 
 tion, shall ])0 preserved by the co safe, unaltered, and undefaced, and 
 shall be open to inspection in manner provided by the 32nd section of 
 the Companies Act, 1862, aud the penalties for refusing inspection or 
 copies thereof prescribed by that section shall if and when incurred be 
 pd by the co. 
 
 35. Nothing in this Act contd shaU be deemed to prevent the co from 
 modifying its memorandum of association, in conformity with the pro-
 
 FORMS. 635 
 
 visions of the Companies Acts, 18G2 and 1867, or any statutory modifi- Form 756. 
 cation thereof, or to interfere with the operation of the provisions in the alteration of 
 table marked (A.) in the First Schedule to the Companies Act, 18G2, if memorandum 
 no articles of association are registered by the co in conformity with the association! 
 provisions of section 14 of the Companies Act, 1862, or to prevent the co 
 registering articles of association, in conformity with that section, or to 
 prevent the co from altering all or any of the regulations of the co contd 
 in the articles of association, or in the sd table marked (A.) in the First 
 Schedule to the Companies Act, 18C2, in conformity with section 50 of 
 that Act or any statutory modification thereof. 
 
 36. \_Ex2m1ses of Ad.'] 
 
 37. This Act shall be deemed and taken to be a Public Act, and shall '^^^^ ^^* *° 
 
 extend to the 
 
 be judicially taken notice of as such by all judges, justices, and others colonies and 
 
 in the United Kingdom and in the sd colonies, and their dependencies, ^° '^*^ judicially 
 
 ? -^ taken notice 
 
 Without being specially pleaded. of. 
 
 The schedule contains the memorandum of association of the new co. 
 
 The Baexet District Gas axd Water Act, 1872, 35 & 36 
 Vict. c. 189. 
 
 Act for armilgamaUnfj three com2)anies 1)]) dissolving and re-incor- Form 757. 
 
 iwrating them. Another 
 
 Amalgamation 
 This was an Act for tlie amalgamation of three companies. Of these^, one Act. 
 was incorporated by Act, and the others were limited companies. The fol- 
 lowing is an epitome of the Act : 
 
 1. Short title. 2. Incorporation of General Acts. 3. Interpretation Epitome of 
 Clause. 4. Limits as to gas. 5. Limits as to water. 6. Schedules ^ ' 
 to be deemed pt of Act. 7 and 8. Dissolution of the three companies 
 and incorporation of members as a new co. 9. Pt V. of the Railway 
 Clauses Act, 1863 \_relating to amalgamation'] to operate as if the three 
 companies were railway companies, and as if the resjsive memorandums 
 and articles of the two limtd companies were special Acts. 10. As to 
 moneys due to or from the three companies on revenue account. 11. 
 Expenses of amalgamation. 12. Indemnity to trustees. 13. Arrangemts 
 as to share capital of the three companies specified in schedules to have 
 effect. 14. Continuance of trusts of stock, &c. 15. Xew certificates. 
 16 to 39. Subdivision of shares, borrowing, directors, &c. 40. Power to 
 pchase certain lands by agreemt. 41. As to construction of gas works. 
 42 to 70. Miscellaneous provisions as to supply of gas and water, rents, 
 &c. 71. Costs of Act. Schedules.
 
 630 
 
 SPECIAL ACTS. 
 
 Form 758. 
 
 Modifying 
 regulations, 
 . and authorising 
 return of 
 capital. 
 
 Interpretation. 
 
 Division of 
 capital of 
 Company 
 into shares of 
 jtlO each. 
 
 The Colonial Co (Lbitd) Act, 1881, 44 Yict. c. 10. 
 
 Act suMividing sluires ; authorising conversion into frcference and ordi- 
 narg, authorising rppagmt of cajjitccl ^jr? in advance of calls and 
 modifging regulations. 
 
 The Act recites : incorporations of co under the Companies Act, 1802, 
 with a capital of 2,000,000/., divided into 4o,0()0 shares of 507. each : 
 And that 36,819 shares have been issued, of which 7,300 have been for- 
 feited for non-paymt of calls or otherwise, and on the remaining 29,510 
 of the sd shares the sum of 20/. has been called up and pd, and on GOO of 
 such shares the sum of 29/. 10,s. has been pd in advance of calls, and on 
 73 of such shares the sum of 11/. has been pd in advance of calls, so that 
 the pd-up capital is 680,883/. and the unissued capital is 159,050/. : 
 And that the co have not power to issue any pt of their original capital 
 as preference shares, and doubts are entertained as to the extent of their 
 power to cancel shares : And that it is expedient to make such provision 
 as is in the Act contd for the conversion of the existing shares in the co 
 into shares of smaller amount, and to authorise the co to issue preference 
 shares, and to remove such doubts as afsd : And that, owing to the 
 nature of the co's business, the amount of profit in one year as compared 
 with another is subject to considerable fluctuation, and it is frequently 
 difficult to estimate the amount of profit available for dividend in any 
 given year, and it is therefore expedient that the dividend upon 
 preference capital of the co should be cumulative, and not contingent 
 upon the profits of each year : And that these objects cannot be attained 
 without the authority of Parliamt : And that a copy of the bill for this 
 Act has been sent to every member of the co, and members holding 
 28,172 shares out of the whole number of 29,519 shares issued and not 
 forfeited, have signified their assent to the promotion of the bill, and no 
 memlier has signified dissent : It was therefore enacted and be it enacted 
 by the Queen's most Excellent Majesty by and with the advice and 
 consent of the Lords Spiritual and Temporal and Commons in this 
 present Parliamt assembled, and by the authority of the same, as 
 follows : — 
 
 1. \_Short title.'] 
 
 2. In this Act — 
 
 The expression " the directors " means the directors of the co, and 
 includes any managing director or directors or committee to whom 
 the powers by this Act conferred on the directors may be delegated 
 by the directors ; 
 
 The expression " share " or " shares " means a share or shares in the 
 capital of the co. 
 
 3. Every 50/. share in the co is hby divided into five shares, each of 
 the nominal amount of 10/., and the memorandum of association of the 
 CO is hby altered accordingly, and five of such shares of 10/. eacli are 
 hby substituted for each 50/. share, and as regards every 50/. share issued
 
 FOEMS. 637 
 
 and not forfeited l^efore the passing of this Act, the sum of 4/. shall be Form 758. 
 
 deemed to have been pd up on each of the 10/. shares sul)stituted for such 
 
 ij()l. share, and any moneys which have l)een pd beyond 2(i/. on any 507. 
 
 share shall be divided into fifths, and one such fifth shall be deemed to 
 
 have lieen pd in advance on each of the 10/. shares substituted for such 
 
 ^0/. share. 
 
 4. Consequent alteration of register and books to be made. 
 
 5. In the case of each 50/. share for which five 10/. shares are snbsti- Saving of 
 tuted by this Act, such five 10/. shares shall (whether or not converted rivhtsTn 
 as hereinafter provided) to all intents and pposes represent such 50/. respect of 
 share, and be subject and liable to the same trusts, power, provisions, 
 declarations, agreemts, charges, liens, and incumbrances as immediately 
 before the passing of this Act affected such 50/. share, and so as to give 
 
 effect to and not to defeat or prejudice any testamentary or other disposi- 
 tion of or affecting the same. 
 
 0. Subject to the provisions of this Act the directors may from time Po'^'ei- to 
 to time agree with any holder of not less than five 10/. shares, with not 
 less than 4/. pd thereon, that, in conson of the paymt hereinafter mentd 
 any set or sets of five of such shares shall be converted into two 10/. 
 ordinary shares fully pd up, and bearing dividend on the full amount pd 
 up, and three lo/. preference shares bearing such preferential dividend as 
 hereinafter mentd. 
 
 7. (1) Xot more than one-half of the 10/. shares for the time being Provisions as 
 issued shall be converted under the powers of this Act : 
 
 (2 ) The option of conversion shall be offered (as from time to time 
 the directors may think expedient) by notice to the members of the 
 CO holding at least one set of five ordinary shares not fully paid up in 
 proportion (omitting fi-actions) to the number of such shares held by 
 each member respively : 
 
 Provided that no offer shall he made to any member who according 
 to such proportion would not be entled to an offer to convert at least one 
 set of five shares : 
 
 (3) A member who does not within one month after receipt of 
 such notice, or such other period as may be specified in the notice, 
 signify in writing his acceptance of the offer made by the directors, 
 shall be deemed to have refused the same, and thereupon the option 
 offered to such member may be offered to any member or members of 
 the CO, at the discretion of the directors ; and wdiere any member accepts 
 the offer of the directors as to some, but not all of the shares included 
 therein, the option as to the balance may be similarly offered at the 
 discretion of the directors : 
 
 (4) There shall be pd to the co in respect of every set of five shares 
 converted under the powers of this Act at the time of acceptance of the 
 •option of conversion, or at such other time or times as may be fixed by 
 the directors, such sum as will suffice to pay up in full two of the shares 
 converted, and such additional sum (if any) by way of premium, as the 
 directors may in the notice giving the option of conversion have fixed,
 
 638 
 
 SPECIAL ACTS. 
 
 Form 758. 
 
 Further pro- 
 visions in 
 case of mem- 
 bers who 
 have paiel 
 moneys in 
 advance of 
 calls. 
 
 Dividend on 
 
 preference 
 
 shares. 
 
 Power of 
 directors to 
 accept pay- 
 ment in full 
 of preference 
 .shares. 
 
 As to future 
 issues of 
 .^harcs. 
 
 which sum or sums may be recovered by the co in Kke manner as a 
 call duly made on the holder of such shares : 
 
 (5) On paymt to the co of the sum or sums required to be pd in 
 Issuance of this section, every set of five shares not fidly paid up in 
 respect of which such paymt has been made shall he converted into two 
 10?. ordinary shares fully pd up, and bearing dividend on the full amount 
 pd up, and three 107. preference shares bearing such preferential divi- 
 dend as hereinafter mentd, and with such sum pd up thereon as was 
 pd up at the time of conversion on the shares converted into such 
 preference shares. 
 
 8. (1) Where any member of the co has before the passing of this 
 Act pd any sum or sums in advance of calls on all or some of his shares, 
 the directors may, if they see fit, at any time within six months after 
 the passing of this Act, return to him the moneys so pd in advance of 
 calls : 
 
 (2) If the directors see fit to exercise the power afsd, then any such 
 member shall be entled (notwithstanding any other provision of this 
 Act) to have any set or sets of five of his shares (not exceeding one- 
 half of his shares on which a sum or sums has or have been pd in 
 advance of calls as afsd) converted into two ordinary shares fully pd up, 
 and three preference shares fully pd up, on his applicon within 
 fourteen days after receipt of notice by him of the directors' intention 
 to exercise the power afsd, and on paymt of such sum as will suffice to 
 pay up in full every set of five shares so converted : 
 
 (3) Every such sum may be deducted by the directors from the 
 moneys payable to any member by them under this section. 
 
 9. Power to issue new share certificates, &c., for pposes of con- 
 version. 
 
 10. The holders of the preference shares under the foregoing pro- 
 visions of this Act shall be entled to a preferential dividend of six 
 p. c. p. a. on the amount for the time being pd up on the preference 
 shares held by them respively, with the right to resort to the net profits 
 of any subsequent year to make up any deficiency in such dividend in 
 any preceding year, but such dividend shall in no case carry interest as 
 against the co. 
 
 11. The directors may from time to time as they think expedient in 
 the interests of the co accept paymt fi"om any holder of preference 
 shares in the co of the amount for the time being unpaid on all or any 
 of such shares, or of any pt of such amount. 
 
 12. Subject to the foregoing provisions of and so as not to affect any 
 preference given by this Act, any shares issued subsequently to the pass- 
 ing of this Act may with the sanction of a special resolution be issued 
 with such preferential right to dividend and at a premium or otherwise 
 as the directors may from time to time in the interests of the co think 
 expedient. 
 
 13. 100 forfeited shares to be cancelled. 
 
 14. No call shall exceed the sum of one pound per share, and article
 
 FOEMS. G39 
 
 nine of the articles of association of the co is hereby altered ac- Form 758. 
 cordinglj. Limiting 
 
 15. Any notice required to be given for any of the pposcs of this Act ^mKiuntof 
 may be given in manner prescribed by the regulations of the co, and the ,. 
 regulations of the co with respect to notices shall apply as if they were 
 herein enacted. 
 
 IG. Article forty-nine of the articles of association of the co is hereby Votes to 
 cancelled, and every member of the co who has been duly registered at "^^^^^ e^cli 
 
 sii^rGiiolciGr 
 
 least three months previously to any meeting shall at any poll have one i.^ entitled, 
 vote in respect of each entire amount of twenty pounds of capital whether 
 ordinary or preference or partly ordinary and partly preference of the co 
 then actually pd up on shares standing in his name either in paymt of 
 calls made or in advance beyond the sums actually called for or otherwise 
 under the provisions of this Act. 
 
 17. The words " Five hundred shares whetiicr ordinary or preference Qualification 
 or partly ordinary and partly preference " are liliy substituted for the 
 
 words " One hundred shares " in article fifty-eight of the articles of 
 association of the co. 
 
 18. The memorandum and articles of association of the co shall, save General 
 so far as they are expressly altered Ijy this Act and Avithout prejudice to '"'^^"^°- 
 the powers of alteration given by the Companies Acts, 18G2 to 1880, 
 continue in full force and effect. 
 
 19. [Costs of Act] 
 
 The Tasmania^ Main Line Eailway Act, 1877, 40 & 41 Yict. 
 
 c. 92. 
 
 Act autliorismg a co formed under the Act of 1862 to create dehetifures Form 759. 
 
 raiiking in priority to existing debentures. Power to 
 
 This is an interesting example of the mode in which Parliament occasionally . 
 enables a company, with the consent of a large majority of the parties inter- 
 ested, to create a charge taking priority over inciimbrances already existing. 
 
 The Act recites : (1) the formation of the co in 187u under the Com- 
 panies Acts, 18G2 and 18G7 : (2) that by a contract dated 15 August, 
 1871, l)etween the Governor of the sd Colony of Tasmania of the one 
 pt and the co of the other, the co agreed to construct, work, and main- 
 tain a railway between Hobart Town and Launcestou, and by the sd 
 contract the sd governor guaranteed to the co interest at the rate of 5 
 p. c. p. a. upon the money actually expended in and for the pposes of the 
 construction of the sd railway, up to and not exceeding G50,000?, during 
 the period of construction therein mentd, and for a period of thirty 
 years from the opening of the entire line for traffic, subject as therein 
 mentd : (3) that by the memorandum and articles the capital of the co 
 was fixed at 1,000,000/. in 100,000 shares of 10/. each, and the directors 
 of the CO were authorised to raise and borrow with the approval of 
 general meeting : (4) that the directors had issued perpetual debenture 
 bonds payable to bearer to the amount of G 50,000/., bearing interest at
 
 640 
 
 SPECIAL ACTS. 
 
 Form 759. 
 
 Power to 
 debenture 
 bond and 
 .stock holders 
 and company 
 to make 
 agreement. 
 
 5 p. c. p. a., the paymt of ■which interest was made a first charge on the 
 ■ whole earnings and revenue to arise from the railway, including the 
 interest guaranteed to the co by the Governor of Tasmania as afsd ; and 
 that subsequently the directors issued debenture stock to the amount 
 of 50,000/., bearing interest at the rate of 6 p. c. p. a., but without pre- 
 judice to the debenture bonds above referred to : (5) that the co have 
 constructed the railway and the same is now being worked, but the 
 Governmt of Tasmania have refused to pay the interest provided for 
 Ijy the recited contract, on the ground that the railway has not been 
 constructed and is not being worked in accordance therewith, and that 
 the CO have therefore been unable to j)ay interest on the debenture 
 bonds : (6) that it is expedient in order to enable the co to do certain 
 farther works on the railway, and to discharge certain liabilities, that 
 they should be empowered to raise further money, to an amount not 
 exceeding 100,000/., Ijut the same can only be raised on the security of a 
 portion of the interest guaranteed by the sd Govemmt, and now pay- 
 al)le to the holders of the debenture bonds created as afsd : (7) that it 
 is expedient that with the consent of the holders of the last-mentd 
 bonds, to be signified as hereinafter prescribed, the co should be em- 
 powered to attach to a further amount of debenture bonds or stock, not 
 exceeding lnO,000/., a preferential interest as hereinafter jDrovided, and 
 that the interest now jjayable on the existing debenture bonds should be 
 reduced to the extent hereinafter mentioned : (8) that it is expedient 
 that with the consent of a sufficient majority of the holders of the sd 
 existing debenture bonds and debenture stock the paymt of the interest 
 now overdue thereon, and of that which shall become due during a 
 certain period, should be delayed, and the coming due of the principal 
 which has been caused by the non-paymt of the interest should be 
 Avaived : (0) that the greater portion of the capital expended in the con- 
 struction of the railway has beeii raised by means of the debenture 
 bonds and the debenture stock, and it is expedient that the holders of 
 debenture bonds and debenture stock of the co should, as hereinafter 
 mentd, be empowered to vote at all meetings of the shareholders of the 
 CO, and should be eligible as directors of the co : and (10) that the 
 pposes afsd cannot 1)C effected without the authority of Parliamt : It was 
 therefore enacted as follows : 
 
 1. [_SJwrt title of Act.] 
 
 2. Any agrecmt to carry into effect the pposes of this Act must be in 
 writing and must — 
 
 First, be approved by the votes of three-fourths in amount of such of 
 the holders of the co's perpetual debenture bonds for ()50,000/. 
 and G p. c. debenture stock for 50,000/. (voting together) as shall 
 be present in person or by proxy at a general meeting of such 
 holders, to be convened by the Board of the co by one week's 
 previous notice by advertisemt in the Times, Daibj News, and 
 Standard newspapers, or at any adjournmt thereof : 
 
 Second, be duly signed by or on behalf of the co, and by the holders
 
 FOEMS. 641 
 
 of not less than three-fourths in amount of the sd perpetual Form 759. 
 debentm-e bonds for 050,000/., and by the holders of not less than 
 three-fourths in amount of the sd G p. c. debenture stock 
 for 50,000/., or by the duly authorised agents of such holders 
 respively. 
 3. An agreemt approved and executed, as in the preceding section Provisions 
 mentd, may provide for all or any of the things hereinafter in this ° ^^ggy^g^t^ 
 section mentd, with, under, and subject to such terms, provisions, con- 
 ditions, and limitations as may be contd in the sd agreemt, and such 
 determination, subject as afsd, shall be binding upon and enure to 
 the benefit of the co, and all persons now or hereafter holders of or 
 interested in the sd perpetual debenture bonds and G p. c. debenture 
 stock, whether they shall have executed the sd agreemt or not ; that is 
 to say, 
 
 (A.) That from and after any day to be named in the sd agreemt, the Reduction of 
 interest payable on the sd G50,000/. perpetual debenture bonds J^^^i^^g.^ture'' 
 shall be reduced from such date and for such period, on such bonds. 
 conditions and to such rates, as may be prescribed in such 
 agreemt, such reduction of interest not being more than 1?. 
 per 100/. per annum : 
 (B.) That the co may fi'om time to time issue, on such terms as they Issue of 
 shall think fit, such further amount or amounts of debenture ^^^0^^^ of 
 bonds or debenture stock, perpetual or not, as the directors of debenture 
 the CO shall think fit, not exceeding in the whole 100,000/., ^^^^^_ 
 and may attach thereto such a rate of interest, subject as here- 
 inafter mentd, as they shall think fit, and that the principal 
 and interest of the sd bonds shall, if and so far as so deter- 
 mined by the sd agTeemt, be secured by a first mtge or charge 
 upon the co's railway, rolling stock, plant, machinery, and 
 other accessories thereof, upon such terms and conditions as 
 the CO may agree upon with the persons advancing the money ; 
 and if so determined and agreed, the sd mtge or charge may 
 include the whole or any pt of the earnings and revenue to 
 arise from the railway, including the interest guaranteed by 
 the sd Governmt as afsd ; provided that the aggregate 
 amount of the interest so attached shall not exceed a sum 
 equal to the aggregate amount of the reduction in the interest 
 payable to the holders of the perpetual debenture bonds for 
 G50,000/. so determined as afsd, and any such mtge and charge 
 shall take effect according to the tenor thereof, in priority to 
 the rights of all the holders of or persons interested in the sd 
 perpetual debenture bonds and G p. c. debenture stock : 
 (c.) That there shall be cut off and deposited in the hands of trustees Funding of 
 the coupons now due and unpaid on the sd perpetual debenture gxll^ting °" 
 bonds, and those to become due during such period as shall be debenture 
 prescribed by the sd agreemt, not being longer than to the end 
 of 1878, and that the same, and the interest now due and to 
 T T
 
 642 
 
 SPECIAL ACTS. 
 
 Form 759. 
 
 Scheme of 
 distribution. 
 
 Application of 
 special capital. 
 
 Eight of 
 debentiuc 
 holders to 
 vote and to 
 be elected as 
 directors. 
 
 Saving rights 
 of Government 
 of Tasmania. 
 
 1)ecome due for the corresponding period on the sd G p. c. de- 
 benture stock, shall not be payable for such period as may be 
 so determined, not later than the last-nicntd date, and that the 
 falling- due of the principal of the sd per])etual debentures and 
 C p. c. delientiire stock occasioned l)y the nonpajnit of the 
 coupons and interest already due shall be suspended for such 
 time as may be so determined : 
 (d.) That the scheme of distribution of the proceeds of sale of the 
 railway or other ppty of the co contd in the first schedule to 
 this Act shall take effect. 
 4. The capital to which any special interest shall be assigned under 
 the last preceding section shall be expended only upon completing the 
 railway (if and so far as the same has not been so completed) in accord- 
 ance with, and in or towards satisfon of, the contract between the Tas- 
 manian Governmt and the co, and in such other expenditure upon the 
 railway and its equipmt, and in discharging the liabilities of the co, as 
 the board of the co shall think desirable. 
 
 T). If and so soon as an agreemt shall be approved and executed, as 
 mentd in section 2, the provisions in the second schedule hto for giving 
 votes to the debenture holders, and making them eligible as directors, 
 shall become aud be pt of the regulations of the co, and a copy of them 
 shall thereupon be filed l)y the board of the co with the Registrar of 
 Joint 8tock Companies, and such filing shall )je conclusive evidence 
 that the sd agreemt has come into force. 
 
 G. Nothing contd in this Act shall lirejudice, limit, or interfere "vvith 
 any of the rights, powers, privileges, or interests of the GoA'ermnt of 
 Tasmania under the contract in this Act recited, or otherwise however. 
 7. [As io costs of the Act.^ 
 
 The first schedule contains provisions for distributing the proceeds of 
 sale ; and the second schedule contains a series of clauses purporting to 
 alter the articles of the co so as to give the deljcnture holders votes, &c. 
 
 T]iE London Tkamways Co, Limtd (Pchase) Act, 1873, 3G & 37 
 
 Vict. c. 204. 
 
 Form 760. Act cmthorisimj two iramway companks mcorporcdcd hj special Act to sell 
 their uncleitaJchujs to a co formed viider the Act of 1862. 
 
 Transfer of 
 imdcrtakin; 
 
 Acts providing' for the sale or transfer of the undertaking of a company 
 incorporated by special Act to a company formed under tlie Act of 18G2j are by 
 no means uncommon.
 
 INDEX. 
 
 Note. — The italics refer to the Precedents: the rest to the notes. 
 
 ACCIDENT COMPANY, 
 
 ohjccts of, 90, 91 
 xmlkics, 313, 317, 320 
 
 ACCOUNTS, 
 
 clauses in memorandum as to, 78 
 clatoscs in articles as to, 160, 179 
 clauses in articles as to audit of, 137 
 of off. liq., form of 439 
 
 (tffidavit vcrifijing, 440 
 
 certificates of allowance, 442 
 
 ACCOUNTS AND INQUIRIES, 
 
 in action by debenture holders, 403 
 where trust deeds, 407 ct seq. 
 
 ACTIONS, 
 
 by debenture holders, orders in, 403 
 
 liberty to bring and proceed with after winding-up order as to, 494 
 
 orders c/iving, 495 et seq. 
 liberty to off. liq. to bring and defend, 457, 458 
 • on behalf ' when allowable, 364, 367 
 2)oweriii articles for directors to bring, 154 
 restraining and staying in winding up as to, 489 
 security for costs, orders as to, 403 
 transfer after winding-up order as to, 493 
 
 orders for transfer, 494 
 ultret vires proceedings to restrain, 394 et seq. 
 vjrits in various, 338 
 
 ACTS OF PARLIAMENT, 
 
 power ill memorandum to apply for, 87, 88 
 See also "Special Acts." 
 
 ADJOURNMENT, 
 
 clause in articles as to, 137 
 
 ADJUSTMENT, 
 
 rights of contributories, 166, 189 
 
 ADMINISTRATORS, 
 
 clause in articles as to, 127 
 
 ADOPTION, 
 
 agcnfs liability on contract to be discharged o)?, 11 
 clauses in articles as to adopting contract, 115 
 
 effect of such clauses as to, 115 
 contract by cornxmny effecting, 30, 31 
 'power in monorandum to effect, 85 
 preliminary contract as to, 1 
 when company bound by adoption, 115, 188 
 of acts of promoters, 188
 
 6U INDEX. 
 
 ADVERTISEMENT, 
 
 for claims of debenture holders, 407 
 
 of ineeting of debenture holders, 414 
 
 of meetings in winding up, 515 
 
 of meetings to consider Arrangement, 588, 594, 599, 601, 602, 607 
 
 of order a,p2)ointini off. liq., 434 
 
 of resolutions to wind iq), 529 
 
 winding-uj) order, 432 
 
 AFFIDAVITS, 
 
 compromise, with a view to, 511 
 
 fitness of off', liq., 433 
 
 formal parts of , 418 
 
 'proving debts in winding -up, 470 et scq. 
 
 verifying accounts of off. liq., 440, 442 
 
 us to off. liq.^s remuneration, 445, 446 
 
 AGENTS, 
 
 appointment of, as to, 61 
 
 power to sub-delegate, 148 
 contracting for compan}', authority of, 4 
 for intended company, liabilitj' of, 3 
 proviso limiting liability of, 3 
 liability on adoption, 5 
 
 AGEEEMENT [Sec also Contracts.] 
 adoption of, by compa7iy, 30, 31 
 adoption of, mode, 30, 115 
 arbitration clause in, 21 
 business, for, sale of, 25 
 business, for sale of to pirivate company, 338 
 completion, 8 
 completion abroad, 28, 33 
 conditional on approval of Court, 55 
 debejitures, to issue, 27 
 filing, as to, 3, 10 
 
 inspection of premises, clause as to, 28 
 inanager, appointinff, 57 
 mines, for sale of, 28 
 notices as to service of, 30 
 jmtent, for sale of, 16 
 sale, for, forms of, 9 et scq 
 seal not requisite, 3 
 secretary appointing, 58 
 ship, for sale of, 32 
 signature for co., 4 
 syndicate, 56 
 preliminary as to, 1 
 'preliminary, forms of, 9 et scq. 
 promoter, by, to form company, 34 
 rescission, power in contract, 8 
 various forms [See Table of Contents]. 
 
 ALLOTMENT OF SHARES, 
 
 2}0wer of directors in articles, 116 
 
 notice of, 210 
 
 efiect of notice of, 247 
 
 ALTERATION, 
 
 of articles of association, 
 
 power to eHect, 193 
 
 resolutions for, ib. 
 of name, 201 
 
 AMALGAMATION, 
 
 meaning o' word, 572 
 modes of effecting, 573 
 power in memoraMdum, 87 
 advantages of, 572 
 agreements on, jiractice as to, 74
 
 I^fDEX. 615 
 
 AUALGAliATlO^— continued. 
 debts on, provision for, 575 
 directors of amalgamated co., as to, SiFo 
 compensation to officers on, 576 
 notices, sufficiency of, 576 
 what companies can effect, 576 
 name of amalgamated co. , as to, 576 
 invalid agreement for, as to, 577 
 dissentients, as to, 577 
 ngrcemciits on, 578, 580 
 resolutions on, 580, 581 
 special Acts for, 627 et scq. 
 clause in numorandwin, as to, 87 
 ■injunction restraining invalid, 396 
 
 AMBIGUOUS STATEMENTS 
 in prospectus, as to, 232, 235 
 
 "AND REDUCED," 
 
 orders dispensing vntk nvord^, 378 
 
 APPEALS, 
 
 liherty to off. liq., 462 
 
 notice of motion on, 519 
 
 orders on, 462, 521 
 
 o^rder allowing off. liq.'s costs of, 517 
 
 practice on, 520 
 
 steujing proceedings pendA>ig, 522 
 
 APPLICATION, 
 
 fo'r shares, letters of, 246 
 
 as to withdrawal, 247 
 
 for debentures, 277 
 
 when applicant bound by, 247 
 
 APPOINTMENT, 
 
 of rnamtgcr, agreement as to, 57 
 if secretary, agreement as to, 58 
 of officers, mode of effecting, 60 
 
 AQUARIUil COMPANY, 
 
 special Acts o/", 621 
 
 ARBITRATION, 
 
 clause in agreement, 21 
 effect of, 22, 23 
 clause in articles as to, 165 
 poioer of directors in regard to, 131 
 liherty in winding up to refer to, 459 
 liberty to proceed with in winding up, 459 
 on reconstruction as to, 552, 564 
 valuation, when an, 25 
 
 ARRANGEMENTS UNDER THE ACT OF 1870, 
 
 sanction of court requisite, 583 
 
 nature of those commonly sanctioned, 583 
 
 staying winding up, may provide for, 583 
 
 new company, may provide for, 584 
 
 meetings with a view to, 585 
 
 majority, what sufficient, 583 
 different classes of creditors, as to, 584 
 
 secured creditors, may be bound, 584 
 
 debenture holders, as to, 584 
 
 rights of members on, 585 
 
 sale to new company, as to, 584 
 
 modification of, as to, 585 
 
 procedure, best course of, 585 
 
 advertisement of meetings, 588 et seq. 
 
 petition, how to be framed, 594, 600
 
 646 INDEX. 
 
 ARRANGEMENTS UNDER THE ACT OF lS70—conthuml 
 applications, how to be intituled, 588 
 
 for sail- of assets to 2Kr so lis paying a composition, <Lc., 588 
 
 for staying winding up, creation of nciv first charge debentures, t£r., £89 
 
 for staying winding up, debenture holders to give time, <i-c. , 589, 592 
 
 composition with creditors, 588 
 
 orders in regard to — 
 
 meetings, to convene, 699 et seq. 
 
 sanctioning scheme, 594 
 
 for debenture holders to accept debentures of another co., 606 
 whether within the Act, 607 
 
 advertisements of meetings, 597, 601 
 
 for lease of tmdertaking, d;c., 596 
 
 for reconstruction by sale of assets to ncio co., 597, 598, 60D, 607 
 jyetitions to satiction, 594, 595 
 notices of meetings, 599, 601, 602 
 
 ARTICLES OF ASSOCIATION, 
 Table A., when it applies. 111 
 form adopting, 172 
 advantages of, 111 
 when necessary, ibid. 
 alteration as to effecting, 193 
 contract, not a, within s. 25 of Act of 1S67, 12 
 copy, members entitled to, 72 
 foriii of, usual., 114 
 
 guarantee, suitable for company limited, by guarantee, 174 
 registration of, 63 
 execution, mode of, 93 
 effect of, 112 
 
 cannot authorise ultra vires act, 112 
 as to agreement not to alter, 339 ct seq. 
 notice of contents, members have, 115, 241 
 miscellaneous clauses, 180 et seq. 
 of private company, 339, 352 
 
 ARTIZANS' DWELLINGS, 
 
 objects of CO., 101 
 
 ASSURANCE, 
 
 sale of business of life, 53 
 
 ATTORNIES, 
 
 poivcr to apipoint, 154, 186 
 
 AUDIT 
 
 of accounts of company, clause in articles, 161 
 certificates of, 162 
 
 BALANCE SHEET, 
 
 clause in articles as to, 161, 351 
 necessary before dividend, 169 
 
 BANKING COilPANY, 
 
 objects of, 92 
 
 BANKRUPTCY, 
 
 representation ofcomixiny in, 154 
 of shareholder, as to, 127 
 liberty for off. liq. to proceed in, 457, 465 
 to go in and prove, 388 
 scJtcmes of arrangement for sale of assets to co., 45, 50 
 when feasible, 50 
 
 BEARER, 
 
 share warrants to, 128 
 debentures to, 250, 265 
 coupons to, 263
 
 INDEX. C17 
 
 BILLS OF EXCHANGE, 
 
 what companies power to accept, 86 
 iKncer to accept in memorandum, 86 
 liberty to off. liq. to accept, 4.88 
 memorandum on, 488 
 
 BILL IN PARLIAMENT, 
 
 poiccr to 2"'omoie, 88 
 
 when company may promote, ibid. Sec also brEClAL Acts. 
 
 BILL OF SALE, 
 
 debenture may be a, 261 
 trust deed, whether a, 261, 279 
 
 BOARD OF TRADE, , , t • •. t f -cj 
 
 associationsregistered without J:he word 'Limited, as to, /S 
 
 licence to omit icord ' limited,' j 9 
 objects of some associedions, 106 cl seq. 
 
 BOILER INSURANCE, 
 
 jjolicy, 325 
 
 BONUS SHARES, 
 
 as to issue, 40, 48 
 
 BOOKS, 
 
 where to be kept, 161_ 
 access to bi/ vendors, 27, 563 
 orders for delivery to off. liq., 448 
 orders for destruction on dissolution, 52^ 
 
 BORROWING, 
 
 power in mciiwrandum, 83 
 claiises in articles as to, 131 
 in action by debenture holders, 412 
 in winding wp, 451 
 directors' poicer, 260 
 excessive as to, 131 
 
 BREACH OF TRUST, 
 
 order in actions against directors, .j9y 
 orders against directors under s. 165, 500 
 
 BREWERY COMPANY, 
 
 objects of, 97 
 
 directors accountable for, 145, 399, 509 
 
 BUILDING COMPANY, 
 
 objects of, 101 
 
 BUSINESS, . „, .^n 
 
 agreements for sale of going, i, 24, 5bU 
 
 commencing, time tor, 116 
 
 power to acquire, 82 
 
 poicer to sell, 82 
 
 purchase of, clauses in articles as to, 180 
 
 vendor not to carry on in competition, 9 
 
 YE-LAWS, 
 
 power for directors to make, 15o 
 power in Acts for company to maJce, 623 
 
 CALLS, . ., ,,« 
 
 clauses as to in artu-les, 118 
 mode of making, 99, 118
 
 Ci8 INDEX. 
 
 CALLS — contimicd. 
 notice of, 211 
 enforcing, mode of, 118 
 payment in advance, 120 
 in winding up, as to, 461 
 orders enforcing, in winding up, 467, 53 
 
 CANCELLATION" 
 
 of agreement, provisoes for, 12, 505 
 of capital, power to effect, 131 
 
 jjetition to effect, 370 
 
 resolutions to effect, 199 
 stamps, mode of, 5 
 
 CAPITAL, 
 
 increase, clauses in articles as to, 129, 208 
 increase of, notice of, 217 
 increase, fees on, 73 
 memorandum, as to specifying in, 70 
 reduction, jJOiver in articles, 131 
 reduction, resolutions as to, 199 
 procedure in regard to, 371 
 uncalled, mortgage of, 132, 260 
 uncalled, debenture charging, 264 
 
 CASH, 
 
 meaning of, in s. 25 of Act of 1867, 12 
 
 CERTIFICATE 
 
 of incorporation, 
 
 when to be granted, 64 
 
 effect, 70 
 
 form, 227 
 of title to shares, 
 
 object of, 223 
 
 law relating to, 223 
 
 clauses as to, in articles, 117 
 
 forms of 225 et scq. 
 by debenture trustees, 269 
 in respect of ore, 19 
 auditors, 162 
 chief clerk's, 
 
 in debenture action, 415 
 
 that off', liq. has given security, 437 
 
 of allovMiice of off. liq.'s accounts 441 
 
 that winding up complete, 442 
 ijrovisional, of debentures, 277 
 
 CHAIRMAN, 
 
 clauses in articles as to, 149 
 declaration by, as to, 192 
 
 CHAMBER OF COMMERCE, 
 
 as to registration of, without the word "limited," 78 
 objects of, 108 
 
 CHOSE IN ACTION, 
 
 rules as to assignment of, 248 ct seq. 
 
 CLUB, 
 
 objects of, 106 
 
 licence, whether requisite, 106 
 
 COAL AND IRON COMPANY, 
 oljects of, 103 
 
 COFFEE TAVERN COMPANY, 
 
 objects of, 98
 
 INDEX. 649 
 
 COLLIERY, 
 
 sale to company iu baukniptcy, 45 
 
 €OLOXLVL, 
 
 loa'ii and agency (■onipany, ohjcds, 94 
 register, as to, 186 
 
 COLONISATION COMPANY, 
 objects of, 102 
 
 COMMENCING BUSINESS, 
 
 time for, 116 
 
 COMMISSION, 
 
 to directors, prospectus should disclose, 237 
 clause in articles as to, 155 
 
 COMMITTEES, 
 
 poivcr for directors to appoint, 150 
 appoinfiHcnt in iciiulin/j up, 484 
 
 COMMON SEAL, 
 
 clause in articles as to, 156 
 
 COMPANY, 
 
 incorporation, Iioav effected, 64 
 
 is a person distinct from members, 336 
 
 C03IPETIT10N, 
 
 vendor not to compete vMli company, 9 
 
 COMPOSITION, 
 
 with creditors of company, as to, 588 et serj. 
 nrra/iujcmcnts providAng for, 588 et seq. 
 
 COMPROMISE, 
 
 directors' poiccr of, 154 
 action against directors, 394 
 in winding up, 
 
 practice as to, 511 
 
 affidavit of contributory, 512 
 
 orders confirming, ibid., 394, 513 
 
 COMPULSORY RETIREMENT, 
 
 provision in articles of private conipany, 343 
 
 CONCESSION, 
 
 arjro-rtient by promoter to 'pjurclwse, 32, 43 
 judgment setting} asidx sale of, 388 
 
 CONDITIONAL 
 
 agreement, 55 
 
 CONSENT, 
 
 by Hi. to registration of coiapa.ny, v:itli name of liquidating company, 249 
 
 CONSOLIDATION OF SHARES, 
 
 clanse in articles as to, 131 
 resolution for, 198 
 
 CONSTRUCTION, 
 
 as to interest dming, 89 
 railway contract, 43 
 
 CONSTRUCTIYE TRUSTEE, 
 
 nature of, 239 
 limitation, 239
 
 650 INDEX. 
 
 CONTRACT, 
 
 (if ado'ption, 30, 31 
 
 adoption, mode of effecting, 2, 115 
 
 agent, by, when binding on company, 3 
 
 clause in articles as ^o, 116 
 
 consideration, wliether the word ' contract ' imports, 1 1 
 
 paid-up shares, as to tiling, 3, 11 
 
 result of not filing, 13 
 
 ordr,- to rectify -register, icherc contract not duly filed, 401 
 jjoicer in memorandum to enter into, 85 
 preliminary, 1 
 
 prospectus, as to specifying in, 242 
 ■rescission, 2)0wcr of, in contract, 10 
 seal, when to be imder, 5 
 not iinder seal, testimonium clause, 5 
 stamps, 5 
 supplemental, 1 
 valuation, for sale at a, 26 
 verbal, when binding on companj', 4 
 
 CONTRACT AND FINANCIAL COMPANY, 
 objects of, 92, 193 
 
 CONTRIBUTION, 
 
 by parties to breach of trust, 16S 
 
 C0NTRIBUT0RIE8, 
 
 calls Oil, as to, 464 et scq. 
 practice, as to, 461 
 costs in disputed cases, as to, 461 
 debts of, enforcimj jjayment, 467 
 detective to discover, liberty to employ, 464 
 d/ivideiuls to, orders for, 465 
 liberty to attend, 483 
 meetings in winding up, as to, 515 
 settling the list, practice as to, 461 
 sunwions to vary certificate, 462 
 orders rectifying list, 462 
 summons to strike name of list, 391 
 
 CONA^ERSION, 
 
 of business into private company, 32 
 
 CONVEYANCE 
 
 on sale, duty on, 336 
 agreement may be, 6 
 hy liquidator, 537 
 
 CO-OPERATIVE STORES, 
 
 objects of, 99 
 
 COTTON-SPINNERS, 
 
 objects, 97 
 
 COSTS, 
 
 of forming company, agreement as to, 29 
 security for, orders against company, 403 
 of winding-np petition, as to, 516 
 ordered to be paid by ojjlcial liq., 116, 519, 520 
 official liq.'s, in winding up, as to, 516 
 
 order for taxedion, 517 
 
 ajfidarit as to costs received on compromises, 518 
 
 certificates of taxing master, 518 
 
 order gioiiig liberty to jMy, 459 
 
 COUNCIL, 
 
 provisions as to, in articles, 177
 
 INDEX. 651 
 
 COUNTY COUKT, 
 
 reference of wiiuUng up to. All 
 restraining action in, 490 
 
 COUPON, 
 
 to dcbentiiri', forms of, 264 
 effect of, 255 
 
 CREDITORS, 
 
 'petition resfrained icJierc claim disputed, 402 
 in Avinding up — 
 
 (iffidm-its 2}roving debts, 469 ci seq. 
 cerlifieede of chief clerk (is to, 474 
 del.)ts incnrred by off. iiq. 
 (iffidcivit as to, 477 
 orders ((s to payment, 47S 
 dividends to, 476 
 liberty to bring actions, 495 
 
 orders giving, 496 
 lihertj] to attend, 483 
 lihertij to 'prove after time expired, 475 
 meetings in winding up, as to, 515 
 order varyi'iig certificate, 474 
 representative, as to appointing, 484 
 'restraining proceedings bg, 490 ct seq. 
 practice as to restraining, 489 
 secured, as to, 480 
 orders declaring rights, 479 ct seq. 
 
 s%iimnons to ad'mit, 473 
 comprromises ivith, 514 
 Crown debts to he -paid, 478 
 
 CROSS EXAMINATION 
 
 on affidavits, practice as to, 501 
 
 CROWN, . . ,. ,_„ 
 
 order for payment, debts due to, tn tomding vp, 47b 
 
 CUMULATIVE DIVIDEND, 
 
 meaning of term, 181 
 
 DEBENTURES, 
 
 advertisements as to, 407, 414 
 
 liberty to bri-ng action after poinding up order, 49^ 
 
 as to borrowing in such actions, 412 
 
 as to sales in sucli actions, 410 
 
 as to receivers and managers in actions by hoiders, 409 
 
 action on lielialf, 232 
 
 ' to bearer,' as to, 250 et sec[. 
 
 form of, 264 
 to bearer with power to register, 255 
 
 form of, 264 
 Bills of Sale Act, as to, 261 
 bonus shares, as to, 40 
 certificate as to, in action, 315 
 
 charging uncalled capital, as to, 260 ■ 4. o^- 
 
 as to condition accelerating time for payment ni certain events, 24. 
 conditions usual, 2.65 
 
 contract to accept, 29 •/••/■ ^ a 
 
 contract to issue 2)aid-iip shares in satisfaction oj, 40 
 
 coupons, as to form of, 264 
 
 nature of, 255 
 
 as to directors' power to issue, 260 
 
 covenant limiting issue, 274 
 
 discount, issuing at, as to, 261 
 
 discount, issuing at, 261 
 
 drawings, 'redeemable by, 270 
 
 exchange, 2}rovision as to, 268, 269 
 
 floating security, 25S
 
 ^oH INDEX. 
 
 DEBENTURES— coH(!iJiHC(Z. _ 
 
 foreign land, as to charging, 257 
 
 forms, ordinar}', as to, 264 ct seq. 
 
 form, disadvantage of the old, 248 
 
 ifKarcmtecd, 269 
 
 interest after default, 265 
 
 improvements in form, 249 
 
 meetings of holders, in actions, 407, 414 
 
 power in deed to convene, 294 
 mortgage debentures, as to, 258 et seq. 
 ■tiiortfjagc debentures, form, of, 264 
 mortgage, without trust deed, 258 ct seq. 
 negotiable, whether by law merchant, 254 
 negotiability, how far characteristics can be annexed, 250 et seq. 
 order, payable, to, 271 
 orders in action by holders, 
 
 declarations of charge, 404 — 416 
 
 accounts and inquiries, 404 et seq. 
 
 tvhere trust deed, 404 
 
 liberty to attend in xoiiuling np, 483 
 
 sale out of court, 406 
 
 sales, 410 
 
 receivers and matutgers, 405, 408 
 
 bonvtving by receiver, 412 
 
 attorney, receiver to (tppoint, 413 
 
 meeting of holders, 414 
 
 advertisement for meeting, 414 
 
 advertisement for claims, 407 
 
 for 'payment of dividend, 415 
 
 /o'/' distribution of cash, 415 
 order for off. liq. tx> co?icur in sales by trustees, 455 
 order declaring rights of, in winding up, 480 et seq. 
 perpetual, 273 
 advantages of, 274 
 jtower to issue, company's, 259 
 
 directors', 260 
 pa/ri passu clause, 258 
 patents, as to charging, 256 
 
 'private Act authorising creation of debenticres to be co first charge, G39 
 'pros^Kctus of, 278 
 provisional certificate, 277 
 
 provisions in tritst deeds as to 'meetings of debenture holders, 294 
 poiccr to holder to excJiange, 268 
 register of, 132, 262 
 to 'registered holder,' as to, 255 et seq. 
 'to registered holder,^ form of, 272 
 registration of bill of sale, 261 
 resolutions as to isstir, 202 
 secured by trust deed, form of, 264 
 ships as to charging, 256 
 as to stamps on, 263 
 trust deed, secured by, as to, 283 et seq. 
 trust deed for securing, 283 
 nncalled capital, 260 
 tcrit in action, 364 
 
 DEBENTURE STOCK, 
 
 jrrospectus of, 278 
 certificate of title to, 279 
 practice as to issue, 279 
 conditions of issue, 280 
 
 DEED OF SETTLE:\IENT, 
 
 of private eo III puny, 352 
 
 DEFERRED SHARES, 
 
 clauses in articles as to, 180 et seq. 
 vendors to fucve, 19 
 
 DEFINITIONS, 
 
 clause in articles as to, IH
 
 INDEX. 653 
 
 DELEGATION, 
 
 directors, jwiccr of, 148 
 
 DEPOSIT, 
 
 company, what is a, S3 
 
 receipt of money on, ])oivcr as to, 83 
 
 on foi-matiou of life assurance company, 90 
 
 DETECTIVE, 
 
 llhirty to employ, to discover contrihutori<:s, 464 
 
 DIRECTORS, 
 
 appointment by articles, as to, 141 
 breach of trust, orders in action for, 315 
 clauses in articles, as to, 141 ct seq. 
 commission on profits, 184 
 contracting with company, as to, 144 
 delegating power to contract, 4 
 disclosure, how to make, "241 
 dividends out of capital, liability of, 171 
 (jcneral iwwers of, in articles, 151 
 effect of, ibid. 
 liability for loss, 168 
 liability on contract for company, 5 
 liability in respect of prospectus, 233 cl sej-p 
 indemnity, clause as to, 167 
 injunction against exclusion, 395 
 'laanagiwi, clauses in articles as to, 147 
 may lend to company, 131 
 wdcr against, fm- breach of trust, 399, 507 
 wdcr compromising action against, 394 
 
 powers of, 151 
 povxr for directors to appoint, 141, 349 
 'jjoiver'in articles to contract with compamj,^ 144 
 prospectus should disclose commission, 277 
 jjroceedings of, 148 
 
 proxy, voting by, 351 
 
 qualification of, as to, 142, 144 
 
 qualification shares, order to refund monies rcccuxd from promoters, M^ 
 
 removal, as to, 147 
 remuneration, as to, 143 
 
 remuneration, clauses as to, 143 
 
 resignation, as to, 142 
 
 resolution without meeting, 150 
 
 rotation of, clauses in articles as to, 145 _ 
 
 sureties, orders as to, in poinding ^tp, 417 
 
 vacate office, in what events, 144 
 
 DISCHARGE 
 
 of official Uquidalor, 447 
 
 DISCLOSURE 
 
 by promoter and directors, how to be made, 241 
 
 DISCOUNT, 
 
 contract to issue shares at a, 39 
 debentures, as to issuing at, 132, 151 
 
 DISCOVERY, 
 
 under s. 115, 505 
 in winding up, 498 
 
 DISPUTED DEBT, 
 
 restraining vnndincj- up petition, 402 
 
 DISSENTIENT ,.-, r a . ^«« / 
 
 member, rights of, on sale under s. 161 of Act, 556 ct sc<i.
 
 65i INDEX. 
 
 DISSOLUTION ORDERS, 
 practice as to, 52 i 
 orders for, 525 ct scq. 
 order to destroy books on, 525 
 orders for division of ccssets on, 526 
 unclaimed dividends, order as to, 526 
 
 DISTRESS, 
 
 as to injunction restraiuiiig, 493 
 
 orders restraining, 493 
 
 lihrrtij to levy in windhuj up. 496 
 
 DISTRIBUTION 
 
 of assets in specie, clause as to, 166 
 
 DIVIDENDS, 
 
 da use in articles as to, 157 
 
 (jiiarantec agreement, 18, 41 
 
 injunction restraining 2}^''y''^i(^''it out of capiUd, 365, 3D8 
 
 jiind out of capital, directors ordered to repay, 509 
 
 ])iiyaljle only out of profits, 171 
 
 out of capital ultra vires, 169 
 
 lialiility of directors, 171 
 
 'uyirrants, form of, 218 
 
 in specie, as to, 158 
 
 DIVISION OF SHARES, 
 
 clause in articles as to, 131 
 resolutions to effect, 199 
 
 DOCK COMPANY, 
 
 objects of, 97 
 
 DOCUMENTS, 
 
 discovery and inspection, 499 
 inspection under s. 156 of Act, 500 
 
 orders for, 499 ei seq. 
 notices to irroducc, 503 
 notices to admit, 603 
 
 DAVELLINGS COMPANY 
 objects of , 101 
 
 ELECTRIC LIGHT, 
 
 objects of comjjany, 196 
 
 engineer, agreement a.pipoiiitlng, 59 
 
 ENGINEER, 
 
 objects of comimny, 97 
 
 EQUITIES, 
 
 when company cannot set up against debenture holder, 250 
 
 ESTOPPEL, 
 
 the doctrine of, 252 
 
 by issue of certificate, 13, 223 
 
 EVIDENCE, 
 
 on winding-up petition, 419 
 in winding up, 501 
 time to flic, 463, 473 
 
 EXAMINATION UNDER s. 115 OF ACT, 
 
 summons to attend, 505 
 practice as to, 504 
 urders appointing coxtrdiiicrs, 506 
 orders to attend, 506
 
 INDEX. 655 
 
 EXCHANGE, 
 
 objects of companij, 105, 109 
 
 EXECUTIOX, 
 
 restraining, 491 
 stajdug, 520 
 
 EXECUTORS, 
 
 transfer of shares by, as to, 127 
 
 EXPULSION, 
 
 clause cts to, ill arliclcs, 179, 343 
 law as to, ibid. 
 
 EXTRAORDINARY GENERAL MEETINGS, 
 
 clauses in articles as to, 133, 212, ct seq_, 
 
 EXTRAORDINARY RESOLUTION, 
 
 nature of, 529 
 
 notice before, 191 
 
 for irtiidiiig uj>, notice, 529 
 
 FIDUCIARY AGENT, 
 
 profit by, rule as to, 145 
 
 FILING, 
 
 contract as to paid-up shares, 10, 15 31 
 
 FINANCIAL COMPANY, 
 
 objects o/i 92 
 
 FIRE INSURANCE COMPANY 
 
 objects of, 91 
 policy of, 309 
 
 FLOATING SECURITY, 
 nature of, 258 
 debentures declared a, 265 
 
 FOREIGN LAND, 
 
 debentures charging, as to, 256 
 
 FOREIGN MANAGEMENT 
 
 clauses as to, 185 
 
 FOREIGN REGISTRATION, 
 
 jiower as to, 86 
 
 FOREIGN SEALS ACT, 
 
 clccuses as to, 186 
 
 FORFEITURE OF SHARES, 
 
 clauses in articles as to, 121 
 
 notices as to, 211 
 
 right of directors, 122 
 
 order for rectification of register tvlicrc forfeiture improper, 401 
 
 injunction restraining, 394 
 
 FOSS V. HARDOTTLE, 
 the rule in, 367 
 
 FOUNDERS' SHARES, 
 
 agreement as to issue, 36 
 promoters sometimes take, 33 
 clauses in articles as to, 183, 189
 
 656 INDEX. 
 
 FRAUD 
 
 in prospectus, 233, 286 
 
 FUTURE CALLS, 
 
 validity of mortgage of, 261 
 
 GAIN, 
 
 what companies arc formed for, 91 
 
 GAS WORKS COMPANY, 
 
 objects of, 105 
 
 GAZETTE, 
 
 notices of winding up in, as to, 432, 52^^ 
 forms of, 529 
 
 GENERAL MEETINGS, 
 
 clauses in articles a^ to, 132 
 must be held every year, 133 
 notice after requisition, 215 
 notices as to, 134, 212 et seq. 
 quorum, as to, 135 
 proceedings at, clauses as to^ 135 
 
 GENERAL WORDS, 
 
 effect of, 68 
 
 as to excluding cjusclcm gencrh construction, 84 
 
 GOODWILL, 
 
 what passes by, 25 
 
 GUARANTEE, 
 
 comjiany limited bj', as to, 69 
 
 company, memorandum of, 76 
 
 dcbentiores secured by, 269 
 
 law society limited by, 77 
 
 when memorandum to contain, 69 
 
 objects of comjmny, 91, 92 
 
 of i)rotits by vendor, validitj' of, IS 
 
 vendor (jives, 18, 41 
 
 power for company to give, 82, 83 
 
 of profits, clause as to, IS 
 
 security of off. liq., 435 
 
 policy, 328 
 
 HANDS, 
 
 show of, as to, 136 
 
 HIDE AND SKIN, 
 
 objects of company, 198 
 
 HOTEL COMPANY, 
 
 objects of, 100 
 
 IMPLIED CONTRACT 
 to carry on business, 61 
 
 INCOME BOND, 
 form of, 275 
 
 INCOME TAX, 
 
 how assessed, 219 
 
 INCORPORATION, 
 
 certificate evidence of reojularitv, 7>
 
 INDEX. 657 
 
 INCREASE, 
 
 capital, fees on, 73 
 claicies ill artklcs as to, 129 
 
 notice, of, 217 
 
 rcsoltttioiis for, 191 it «'/. 
 under Act on 879, 208 
 
 INDEMNITY, 
 
 directors, clauses as to, 167 
 to directors, power to <jive, 155 
 
 INFANT, 
 
 subscriber of mcmoranduin, 71 
 transfer of shares of, as to, 127 
 
 INJUNCTION, 
 
 restraining the advertising of a person as directoi', 244 
 actions and prGceediiujs, as to, 489 
 application to Parliament, 610 
 imitation of i/ompany's name, 64 
 amalgamation, 396 
 exclusion of director, 61, 395 
 forfeiture of shares, 394 
 holding of meeting cd proper time, 395 
 infringement of preference sluircholder^ riejhts, 397 
 rnvnlid sale under s. 161, 397 
 notice of motion to disi^harge, 493 
 2)ayment of dividend out of capital, 398 
 2mrchasc of companif s ovm shares, 398 
 rejection of votes, 395 
 winding-up petition, 402 
 
 INSPECTION, 
 
 mines, clause as to, 28 
 contract offered for, 241 
 order in windiiig up, 499 
 
 INSTALMENTS 
 
 on shares, pajjmtnt o/',116 
 
 INSURANCE, 
 
 marine, objects of compoinj, 90 
 
 INTEREST 
 
 on calls in arrear, 119 
 during construction, 89, 171 
 
 INTERNAL AFFAIRS 
 
 of company, rules as to non-interference in, 367 
 
 INVENTION, 
 
 sale of patented, 17 
 
 INVESTMENT, 
 
 in memorandum., power of, 83 
 objects of compoMg, 95 
 
 ISSUE, 
 
 meaning of, in s. 25 of Act of 1867, 13 
 
 JOINT HOLDERS OF SHARES, 
 liability of, 117 
 
 JUDGMENT. >S'cc Orders. 
 
 JUDGMENT CREDITOR, 
 
 wiiuling-up petition oJ\ 375 
 
 U U
 
 658 INDEX. 
 
 LANCASTER TALATINE COURT, 
 petition in, 383 
 
 LAND, 
 
 limited right to liold in certain cases, 81 
 
 LAND COMPANY, 
 
 objects of, 80 
 
 LANDLORD, 
 
 distress in winding up, 497 
 
 LAW SOCIETY, 
 
 articles of, 174 
 memorandum of, 79 
 objects of, 107 
 
 LEASE, 
 
 off. liq. libciitj to grant, 458 
 
 LENDING MONEY, 
 
 jiower, 83 
 
 LETTERS PATENT, 
 
 agrechient for sale of 16 
 
 LIABILITY 
 
 of person contracting for intended company, 2 
 
 proviso limiting, 3 
 
 of agent, clause cliscJiarging, 9 
 
 of person signing contract ' for ' company, 5 
 
 clai'sc in mcinora7idam, 69 
 
 LIBRARY COMPANY, 
 
 objects of, 100 
 
 LICENCE. 
 
 patented invention, as to, 17 
 lijnited, to omit word, advantages, 79 
 form of, 80 
 
 LIEN, 
 
 clauses in articles as to, 122 
 
 of solicitors, none on debenture trust deed iu certain c;i.se.>. 202 
 
 on company's books, 448, 516 
 
 LIFE ASSURANCE COMPANY, 
 amalgamation of. as to, 374 
 agreement for sale of business, 53 
 deposit re(iuisite on registration, 89 
 objects of, 89 
 
 pefifioyi ■iijwn transfer of business, 374 
 transfer of business, law as to, ibid, 
 reducing contract, as to, 375 
 
 LIMITATION, 
 
 period as regards promoters, 239 
 
 'LIMITED,' 
 
 licence to omit from name, 79 
 form of licence, 80 
 objects if societies, 106 
 
 LIQUIDATED DAMAGES, 
 
 clause as to, in contract, 9 
 
 LIQUIDATOR, 
 
 conveyance by, 537 
 
 LOAN AGENCY, 
 
 objects of co7n])a}ty, 9i
 
 INDEX. 059 
 
 LOAN cli:d, 
 
 objects of compa luj, 100 
 
 LOCAL BOARDS, 
 
 jwwcr to appoint, 185 
 
 LONDON GAZETTE, 
 as to notices in, 529 
 
 LONDON STOCK EXCHANGE, 
 
 rules of, 116, 217 
 
 LOSSES, 
 
 cJanses in articles, 165 
 cancelling lost capital, 170, 200 
 
 MAJORITY, 
 
 rights of, 367 
 
 fraud on part of, ibid. 
 
 MANAGEK, 
 
 agreement appointinc^, 58 
 clauses in articles as to, 185 
 Jinn to act as, 349 
 
 MANAGING DIRECTOR, 
 
 clauses in articles as to, 147 
 
 MARINE INSURANCE COMPANY, 
 objects of, 90 
 2)olicies of, 330, 331 
 
 MARRIED WOMEN, 
 transfer of shares, 126 
 
 MECHANICAL ENGINEERS, 
 
 objects, 97 
 
 agreement for sale of business, 7 
 
 3IEETINGS, 
 
 ill winding up, as to, 515 
 
 ill actions of debenture holders, 413 
 
 rlai/.se-^ in articles as to, 133 
 
 of delienture holders, tmst deed, 294 
 
 MEMBERS, 
 
 annual return of, 113 
 
 MEMORANDUM, 
 
 what sufficient to bind companj' under Statute of Frauds, 5 
 
 MEMORANDUM! OF ASSOCIATION, 
 
 agreement that s/iares taken by vendor to be deemed 2M id up, 31 
 
 common forms for vsc in, 75 et seq. 
 
 capital as to stating, 69 
 
 copy of, members entitled to, 72 
 
 efiect of subscription, 71 
 
 execution and stamping of, 64 
 
 forms of, 75, <t seq. 
 
 liability of subscriber, 71 
 
 of limited company, of, as'to, 62, 75 
 
 of company limited by guarantee, 76 
 
 objects, as to statements in, 66 
 
 registration of, 63 
 
 registration of, effect of, 64 
 
 infant subscribers, 71 
 
 of unlimited company, of, as to, 81 
 
 ■writing, may be in, 70 
 
 u u 2
 
 6G0 INDEX. 
 
 MINES, 
 
 sale of, agreement for, 28 
 
 MINING COMPANY, 
 
 objects of, 102 
 
 MINORITY, 
 
 when court will interfere at suit of, 305 
 
 MINUTES 
 
 ufproceccliiujs, as to, 150 
 provisions of Act as to, ibid. 
 
 MISFEASANCE, 
 
 orders under s. 165 in respect of, 507 et seq. 
 
 MISREPRESENTAT I ON 
 
 in prospectus, liability of directors, 233 
 
 MORTGAGE DEBENTURE ACT, 
 
 references to, 68 
 
 MORTGAGE DEBENTURES, 
 Act as to issue, 83 
 law as to, 259 et seq. 
 the different kinds, 255, 264 
 
 MORTGAGES, 
 
 at/reenient by company to undertake, 26 
 
 order as to, in lainding u}), 480 ct seq. 
 
 rights of, in winding up, 481 
 
 poxeer in memorandum as to, 83 
 
 ■provisions in articles as to, 131 
 
 register of, as to, 132 
 
 of uncalled capital clause in articles, 132 
 
 MOTION, 
 
 ■notice of , for mal parts, 418 
 
 MUTUAL INSURANCE COMPANY, 
 
 objects of, 91 
 
 NAME OF COMPANY, 
 
 cliange, mode of eftectiug, 65 
 
 consent by liq. to 'registration by compamfs name, 249 
 
 as to taking name of company in course of dissolution, 65 
 
 not to be identical with existing, 64 
 
 injunction to restrain imitation, 65 
 
 'limited,' licence to omit, 65 
 
 form of licence, 79 
 memorandum, to be specified in, 64 
 ■resoliUion to change, 201 
 ' royal ' not allowed, 65 
 
 NEGOTIABLE INSTRUMENTS, 
 
 what companies power to issue, 86 
 
 how far debentures can be made, 250 et seq. 
 
 NEWSPAPER, 
 
 objects of company, 98 
 
 NOMINEES, 
 
 paid-up shares, issuing to, 11 
 
 NON-DISCLOSURE, 
 
 repudiating shares for, 230, 234
 
 INDEX. 661 
 
 l^OTICE OF REGULATIONS, 
 who deemed to have, 187 
 
 NOTICES, 
 
 to admit documents, 503 
 
 f'fjrecincnt as to service, 30 
 
 allot idcitl of shares, 210 
 
 authentication of, 163 
 
 of call, 211 
 
 clauses in articles as to, 163, 179 
 
 to company, how to be given, 163 
 
 eijuitable right in shares as to, 117 
 
 of motion, furiiial parts of, 418 
 
 Oil forfeiture of shares, 121 
 
 of general inecting, clause as to, 134 
 
 increase of capital, 217 
 
 h)j 'laembers convening meeting, 215 
 
 iniscellaneous forms of, 210 et scq. 
 
 office, sitnatioH of, 216 
 
 productioib of documents, 503 
 
 to registrar of Joint Stock Companies, 216 ct seq. 
 
 special resolution of, 217 
 
 time, computation of, in, rer/ard to, 165 
 
 NUMBERS OF SHARES, 
 
 as to stating in contract, 12 
 
 OBJECTS, 
 
 clauses, 82 et scq. And sec Tablk OF CoNTKXT.s, " Memoranda. 
 
 memorandum to state, 66 
 
 general words, \ise of, in stating, 67 
 
 present mode of stating, 66 
 
 interpretation, 68 
 
 power to extend invalid, 68 
 
 ultra vires, what is, 66 
 
 sjKcial Acts e;rtending, 628, 629 
 
 OFFICE, 
 
 memorandum to state situation, 62, 66 
 jtoticc of situation, 216 
 
 OFFICERS, 
 
 as to appointing, 60 
 
 as to compensation on dismissal, 61 
 
 OFFICIAL LI(,)., 
 
 accounts of, fomi, 439 
 
 order directing, 433 
 
 suuvmons to proceed on, 439 
 
 affidavit verifijlng, 440 
 
 summons for time to leave, 442 
 
 certificates of allowance of, 441 
 
 liberty for executors to attend taking, 442 
 
 liberty for surety to attend taking, 443 
 
 liberty to issue attachment for not bringing in, 443 
 advertisement of time to appoint, 432 
 advertisement of appointment, 434 
 affidavit of fitness, 433 
 appointing, orders, 433, 434 
 borrou:ing, orders as to, 451 ct seq. 
 carrying on the business, 
 
 orders as to, 449 ct seq. 
 
 'monthly accounts, 449 
 
 local banking account, 449 
 costs of, as to, 516 
 taxation orders, 516, 517
 
 G62 INDEX. 
 
 OFFICIAL TAQ.—coaUiiucd. 
 dtschanjc of, 442 
 accept bills, 488 
 proceed in bankncpfcy, 465 
 i-eeeiver in action, Avlien appointed, 409 
 liberty to 
 
 ajipuiut aaciits abroad, 458 
 
 power of attorney, to execute, 459 
 
 debtors, sue, 457 
 
 defend action, 458 
 
 inventory, to have made, 457 
 
 lease, (J runt, 458 
 
 ■nuuuKjer, to continue, 456 
 
 office, to take, 456 
 
 tciuler for property, 455 
 
 sue, promoters, 393 
 
 sales, to effect, 453 
 
 surveyor, to ernpjloy, 456 
 
 valuable, return, 460 
 removal, 
 
 orders fm; 417 
 
 practice as to, ibid. 
 resignation, 
 
 order on, 447 
 remuneration, 
 
 summons as to, 443 
 
 regulation of, 443 
 
 priority of, 444 
 
 payments on account, 447 
 
 affidavit as to, 445 
 
 order to assess, 446 
 
 ord,er for monthly alloioance, 447 
 
 order for payment, 447 
 security of, as to, 434 
 
 summons to settle, 434 
 
 bond of guarantee company, 435 
 
 certificate as to, 437 
 
 orders reducing, 438 
 
 practice as to reducing, 438 
 
 order enforcing, 439 
 
 as to vacating, 438 
 solicitors of, as to appointment, 434 
 
 OPINION, 
 
 as to stating in prospectus, 244 
 
 ORDERS. Sec p. 386 et seq. 
 
 in actions by debenture holders, 404 ct seq. 
 
 and Sec under " Debknturks." 
 against directors for breach of trust, 399 
 
 on compromise in action against directors for recovery of secret profits, 394 
 corifir^niag reduction of capital, 373 
 directors to refund secret jjrofits, 391, 393 
 liberty for liq. to sue pivmoters, 393 
 jrromoters to refund secret proft, 390 
 rectifying register, 400 
 rescinding contracts to talcc sJmres, 390 
 setting aside sale of concession, 391 
 setting aside sale of mines, 390 
 restraining dividend out of capital, 398 
 protecting preference shares, 397 
 restraining winding-iip 2>ctition, 402 
 
 ORDINARY GENERAL MEETINGS, 
 
 clauses in a.rticlcs as to, 133 et seq. 
 
 OUTGOINGS, 
 
 ojiportioiiment, 11
 
 INDEX. 663 
 
 PAID-UP SHARES, 
 
 luuus oil, to debenture holders, 40 
 validity of coutiact to issue by way of bonus, 40 
 contract as to, filing, 10 
 contreict to rcetify mistake, 4 
 supplemental contraet as to, 37 
 contraet to issue in satisfaction of debt, 37 
 ■oi'der to reetlfy register cind file contract, 401 
 contract as to, result of not filing, 13 
 contract as to, when to be filed, 10 
 tiicraorandum, taken by, to he deemed, 32 
 nominees, issue to, 11 
 sub'contrccct as to issue, 37 
 vendors to hold for certain period, 28 
 
 FARI PASSU CLAUSE, 
 as to insertion, 258 
 by deed of settlement, 357 
 
 PARTNERSHIP, 
 
 jmivcrfor compa,nij to go into, 82 
 
 PATENTS, 
 
 objects of company to work, 85, 97 
 agreement for sale of, 16 
 new law as to, 17 
 
 PERPETUAL DEBENTURES, 
 
 nature of, 258 
 form of, 273 
 
 PETITIONS, 
 
 costs of order in vjinding up to pay, 425, 426 
 
 reduetimi of capital, 369, 370 
 
 to sanction arrangciaents, 594, 600 
 
 to stay loimling up, 384 
 
 transfer, orders for, 427 
 
 winding up, compulsory, 375 et seq. 
 
 under supervision, 381 
 
 to Palatine Court, 383 
 
 to Stannaries, 383 
 
 ivinding up, orders on, 420 et seq. 
 
 life assurance, reduction of contracts as to, 375 
 
 life assurance, transfer of business, 374 
 
 injimction to restrain toinding up, 402 
 
 ivinding tq), order for transfer, 427 
 
 PLACING SHARES, 
 
 power to remunerate, 83 
 
 PLATE GLASS, 
 
 jwlicy insuring, 327 
 
 POLICIES, 
 
 life, skeleton form, 296 
 
 life, miscellanrous, 297, 298 
 
 for wife and children, 298 
 
 as to chari,'ing assets with policies, 297 
 
 life, conditions as to — 
 
 misrepresentation, 301 
 
 indi.spictabilify, 301 
 
 error a.s to age, 302 
 
 la2)se, 302 
 
 rencical after la'pse, 302 
 
 usual provisions as to, 303 
 
 not forfeitable, 303 
 
 reccij)ts for 2rreviiu7ns, 303 
 
 residence and travel, 303 
 
 occupation, 304 
 
 military and, naval proceedings, 304 
 
 forfeiture of premiums, 307
 
 GOl INDEX. 
 
 POLICIES— co/((;«iM«Z. 
 
 payment intu Gourt, 307 
 
 application of bonuses, condition, 307 
 
 limit of time for claim, 308 
 
 surrender, conditions as to, 308 
 
 Jire insurance, 309 
 
 h.azardous occupations, as to, 305 
 
 travel fj-ccdom from restriction, 305 
 
 suicide, us to, 306 
 
 instalments, premiums hy, 306 
 
 jyroof of death as to, 306 
 
 trustee's receipts as to, 307 
 
 power for trnstecs to surrender, 307 
 accident, ordinary, 313 
 railway accident, 317 
 marine accident, 317 
 employer's liahiJity, 317 
 live stock, 320 
 Jiorsc insurance, 322 
 transit insurance, 323 
 So//fr, 325 
 yyA^/<; //;r^s^s, 327 
 hail, 327 
 
 guarantee of honesty, 328 
 marine, 330, 331 
 unlimited company, of, 300 
 
 etlect of provisions, 301 
 
 POLL, 
 
 clause 2/;. articles, 136 
 ?noc?c oftakiny, 137 
 
 POWER OF ATTORNEY, 
 
 liberty to company to execute, 459 
 
 lit^uidators to execute, 459 
 receivers, 413 
 
 POWERS OF DIRECTORS, 
 
 adoption of ayrcemenf, as to, 115 
 allotment of shares, 116 
 commenciny business, 116 
 ycneral, in articles, 151 
 
 eti'ect of, iftiV/. 
 specific, clause in articles conferring^ 152 ci se^'. 
 
 advantages of, i&z<?. 
 
 PRE-EMPTION 
 
 of shares, right given to members, 341 ei scj. 
 
 PREFERENCE SHARES, 
 
 clauses in articles as to, 130 
 
 cumulative dividend, as to, 181 
 
 injunction protecting, 397 
 
 power in articles to create, 110 
 
 power to create, what sufficient, 195 
 
 resolutions creating, 196 
 
 riglits of holders, 181 
 
 statements as to, in articles, 181 
 
 vendors to allow to ordinary shares a, preference, 19 
 
 clause giving jirrfercnce in whuling up, 189, 196 
 
 mentioning in memorandum, as to, 70 
 
 redemptiou, as to, 183 
 
 infringing riglits of, 193 
 
 iiijunetiort tu protect, 397 
 
 PRELIMINARY CONTRACT, 
 nature of, 1, 
 
 proceedings with a view to, 1 
 forms of, 7 et seq. 
 clause i/i articles as to, 115
 
 INDEX. 665 
 
 PEELIMINAllY EXPENSES, 
 agreement to })ay, 34, 35 
 2)0wer for directors to pay, 153 
 
 PRIVATE COMPANIES, 
 nature of, 334 
 
 iiulucemciits to formatiou, 334, 335 
 the two plans, 335 
 conversion of business into, 335 
 two plans of formation, 337 
 (ujrccmcnt for sale to, 338 
 articles of association of 339, 352 
 deed of settlement of, 352 
 comindsory retirement clauses, 344 
 forfeiture for comjKtition, 347 
 restriction of issue of shares, 340 
 as to directors, 347, 348 
 as to managing directors, 348 
 managers, 349 
 
 jwwer to aiiimint and remove directors, 349 
 director's' rejntineration, 350 
 instruction of directors for, 350 
 alteration, 350 
 rotation, 350 
 voting hy 2>ro.vy, 350 
 limitations of liability, 354 
 members no power to bind, 354 
 second plan as to s. 25 of Act of 1867, 357 
 7viU giving 'power to form, 358 
 
 PROFIT, 
 
 guarantee hj vendor, 18 
 slmra to manager, 60 
 ascertaining for dividends as to, 169 
 share to jwliey-holders, 297 
 
 PROFIT DEr.ENTUHES, 
 
 nature of, 275 
 form of, ibid. 
 
 PROMOTERS, 
 
 who are, 237 
 
 vendor, clause in agreement as to, 20 
 preliminary expenses, agreement to pay, 34 
 vendor at liberty to remunerate, 20 
 remuneration of, 33 
 
 points to be borne in mind, 33 
 clause as to remuneration, 188 
 when entitled to payment, 188 
 founders, shares to, 34 
 concrssiiiii, agreement for sale of, 32 
 syndieiitr agreement, 56 
 
 nature of, 57 
 company instead of syndicate to eftect, 93 
 liability on prospectus, 237 
 fiduciary character and consequences, 239 
 liberty to of. liq. to sue, 394 
 orders in actions against, 390 — 393 
 
 PROMOTION, 
 
 power in memorandum, 83, 86 
 
 PROSPECTUS, 
 
 advertising, agreement as to, 34 
 ambiguous statements in, 231, 235 
 contracts must specify, 242 
 careless language in, danger of, 231 
 of debentures, 276 
 as to disclosure by, 241
 
 CCG INDEX. 
 
 TROaVECTV^—contuiual. 
 
 disclosure how to be made by, 241 
 
 form of, 245 
 
 liability of company in respect of, 231 
 
 liability (jf directors in respect of, 233 
 
 liabib'ty t)l' promoters for, 237 
 
 liability of vendor in respect of, 240 
 
 as to misrepresentations in, 387 
 
 opinion, as to stating in, 244 
 
 as to stating company's objects in, 245 
 
 preparation of, 228 
 
 may give a light to rejjudiatc shares, 230 
 
 som-ce of information should be stated in, 244 
 
 Stock Exchange, rules as to, 245 
 
 rROYISIONAL CERTIFICATE, 
 
 of debentures, 278 
 
 PROVISIONAL OFFICIAL LIQUIDATORS, 
 
 motion or summons for cqjpointmcnt, 428 
 jiractice as to appointment, 428 
 orders ajijwintinr/, 429 ct seq. 
 inrrymg on business, orders, 429 
 occount, order to bring in, 431 
 costs, taxation of, order, 430 
 discJiarging, orders, 430 
 
 TROVISIONAL ORDERS OF BOARD OF TRADE, 
 electric light, 96 
 gasworks, as to, 105 
 waterworks, as to, 105 
 power to apply for, 87 
 
 PROXIES, 
 
 cl((uscs in articles, as to, 138 
 as to stamping, 140 
 
 PUBLIC HALL COMPANY, 
 
 objects of,99 
 
 PUBLIC WORKS, 
 
 objects of company, 93 
 
 concession agreement to transfer, 43 
 
 construction contract, 43 
 
 QUALIFICATION 
 
 of directors, 
 
 clauses in articles as to, 142 
 
 cases as to, ib. 
 share wari'ants, when, 128 
 
 QUORUM, 
 
 of general meeting, clause in articles as to, 3 
 if meeting of directors, 148 
 course where none possible, 191 
 
 RACE COURSE, 
 
 objects of company, 99 
 
 RAILWAY COMPANY, 
 
 objects of foreign, 104 
 
 RATES, 
 
 order for 'iHujment in winding up, 478
 
 INDEX. 667 
 
 RATIFICATION, 
 
 ddusrs as to, til articles, 115 
 ividract, of, by company, 30 
 mode of etfectinj:^, by company, 30 
 of acts of promoters, 188 
 ultra vires act, none of, 66 
 
 RECEIPTS, 
 
 jwiacr of directors to give, 154 
 
 RECEIVERS AND JIANAGERS. 
 
 in actions by debenture liolders, 408 
 orders ajrpointiiig in action, 405, 408 ct seq. 
 liberty to borrow, 412 
 liberty to call viectings, 413 
 
 RECITALS, 
 
 that memorandum and articles have been prepared, 7 
 
 tliat vendor entitled to patents, 16 
 
 as to formation of comjiaay, 7 
 
 in trust deed for securing debentures, 283 
 
 in reconstruction agreements, 559 
 
 in amalgamation agreements, 578 
 
 in conveyance by liquidator, 537 
 
 in special Acts, 616 
 
 RECONSTRUCTION, 
 
 modes of effecting, 551 
 
 cases in which expedient, 552 
 
 procedure, course of, 553 et seq. 
 
 new company generally takes name of old, 554 
 
 sale must be to a company, 555 
 
 or to agent for intended co. , 555 
 
 may be to foreign co., 555 
 agreement may provide for direct allotment of shares to members, 555 
 distribution of shares on, as to, 555 
 dissentients, rights of, 552, 556, 557 
 
 summons to determine, 557 
 
 funds to pay, whence to come, 558 
 
 security for, as to, 558 
 notices, how to be framed, 558 
 agreement, as to filing, 559 
 remuneration of liqs., as to, 559 
 articles qualifying rights of dissentients, as to, 559 
 invalid resolutions, as to confirming, 559 
 company not formed under Act of 1862, may effect, 559 
 where compulsory or supervision order has been made, 559 
 agreements on, 560 ct seq. 
 dissentients, notice by, 564 
 shares, part paid up may be accepted, 555 
 injunction rcMraining invalid sale under s, 161, 396 
 imder arrangement Act, 597 ct seq. 
 
 RECTIFICATION OF REGISTER, 
 orders for, 3f 8 , l) ? 9-^ ^ 
 
 practice as to, j?0| N 3H //^yp 
 
 REDEMPTION OF SHARES, 
 
 clause in articles, 183 
 
 REDUCTION OF CAPITAL, 
 
 advertisement of order, 373 
 
 clauses in articles, as to, 131 
 
 orders confirming, 372 
 
 orders dispensing with uvrds ^'and reduced," 373 
 
 petitions, as to, 369, 370 
 
 practice, 371 
 
 form of minutes, ZT 2 
 
 resolutions as to, 199 ct seq.
 
 608 INDEX. 
 
 EEGLSTEE, 
 
 of mortgages, 262 
 
 of dehcnture holders, 272 
 
 REGISTER OF MEMBERS, 
 
 rectification of, practice as to, 400 
 orders rectifi/iiu/, 400 et seq. 
 of mortgages to be kept, 262 
 
 REGISTERED OFFICE, 
 
 memorandum to state situation, 62 
 notice of situation, 66 
 
 REGISTRAR, 
 
 annual return of members to, 216 
 
 REGISTRATION, 
 
 of documents, fees payable on, 73 
 
 REGISTRATION OF EXISTING COMPANIES, 
 
 forms for use in, 206 
 
 under the Act of 1879, forms on, 208 
 
 REMUNERATION, 
 
 of directors, as to, 143 
 
 clauses as to, ibid. 
 
 of official liq., as to, 443 et seq, 
 
 if promoter, clauses in articles as to, 164 
 
 promoters of, as to, 188 
 
 REMOVAL, 
 
 of official liqs., orders on, 447 
 
 RENT, 
 
 order for payment in vAnditig up, 477 
 liberty in winding iip, to dAstrainfor, 496 
 
 REQUISITION 
 
 for general meeting, clause as to, 133 
 form of, 215 
 
 RESCISSION, 
 
 power of, in preliminary contract, 10, 31, 562 
 
 RESERVE FUND, 
 
 power to establish, 153 
 
 RESIGNATION 
 
 (f directors, clause in articles, 142 
 of directors, as to, 142 
 of offi. liqs., orders on, 447 
 
 RESOLUTION 
 
 of directors, when to he eciuivalent to resolution of general meeting, 150 
 
 special, nature of, 190 
 
 extraordinary, nature of, 191 
 for registration of existing company, 206 
 under Act of 1879, 208 
 
 various forms of, 193 et seq. 
 for winding up, 529 
 
 RETIREMENT, 
 
 compulsory, of members, 179 
 
 RETROSPECTIVE, 
 
 operation of Act, 357 
 
 RETURN 
 
 of meuibcrs to registrar, 133 
 of capital, as to effecting, 371
 
 INDEX. G69 
 
 REVIVOR 
 
 of petition, 424 
 
 ROTATION OF DIllKCTORS, 
 
 clautics hi aiiicles us to, 145 
 
 'ROYAL,' 
 
 as to use in name, 65 
 
 SALE, 
 
 agrcirnicnts for, 7 ct scq. 
 power of, in memoranda in, 82, 84 
 lib actions by debenture holders, 410 
 ill vjindiiiif lip, 452 ct scq. 
 
 SALE UNDER s. 161 OF ACT, 
 clause in articles as to, 166 
 
 SCHE]»IE OF ARRAN(iEMENT, 
 
 under the Act of 1870, 588 et scq. 
 under the Banknqitni Act, 45, 50 
 
 SCHOOL COMPANY, 
 
 objects of, ion 
 
 SCOTLAND, ^ » . rA^ 
 
 order for examination in, under s. 127 of Act, o07 
 
 SCRIP CERTIFICATES, 
 
 as to, 277 
 
 SEAL, 
 
 contract under, wliutlier a deed, 3 
 clause in articles as to, 156 
 
 SECRECY, 
 
 clause as to, 181 
 
 SECRETARY, 
 
 agreement appointing, 58 
 clause ill articles as to, 156 
 
 SECURITY 
 
 of official liquidator, 434 
 
 SECURITY FOR COSTS, 
 
 (Hjiiipany may be called ou for, 403 
 orders for, 403 
 
 SERVANTS, 
 
 dismissal, 43 
 
 SERVICE 
 
 of 'petition, orders, 421 . . ,. • ao' aqu 
 
 vf suiiivionscs, ci-c, ill winding up, in and out of jurisdiction, 48o, 480 
 perfsonal, specific performance of, not enforced, 43 
 
 SET-OFF, 
 
 as to contributory, 467 
 as to creditor, 469 
 
 SHARES, 
 
 application for, 246 
 
 clause in articles as to allotrnenf, 116 
 
 when contract to take binding, 247 
 
 discount, issue at, 38 
 
 instahiients to be paid, 116
 
 *>70 INDEX. 
 
 SHARES— coniimicd. 
 
 (nests not to be recognised, 117 
 certijimtcs of, 225 
 
 injunction restraining ultra y'vces forfeiture, 394 
 injunction restraining ultra vires purchase, 398 
 preference, ponrr to issue, 129, 181 
 jiower to take in other comjmnies, 86 
 purchase of company's own, 88, 116 
 rescission of fraudxdent contract, 386 
 
 SHARE WARRANTS, 
 
 clauses in articles as to, 128 
 resolution as to conditions cf issue, 203 
 stamp on, 203 
 form of, 226 
 
 SHERIFF, 
 
 iirdcrs resin lining sales by, 491 
 
 SHIPOWNER COMPANY, 
 
 objects of, 103 
 agreement for sale to, 32 
 
 SHOW OF HANDS, 
 
 as to taking, 136 
 
 SOCIETY, 
 
 objects of, 174 
 
 SOLICITORS, 
 
 clause in articles as lo, 156 
 
 no lien on debenture deed of, acting for all parties, 262 
 
 of off. liq. as to appointment, 434 
 
 orders on, to deliver company''s books to off. liq., 516 
 
 SPECIAL AC'i'S, 
 
 power in memorandum to apply for, 88 
 
 cases in which companies apply for, 88, 609 
 
 for re-incorporation, as to, 609 
 
 injunctions to restrain application for, when gi'anted, 610 
 
 procedure in applying for, 609 ct seq. 
 
 first charge drbentare stock, authorising issue, 623 
 
 'xtendAng objects, 629 
 
 irnuilgamation for, 630 
 
 authorising the issue of debentures ranking in 2)riorify Id rreisfing incum^ 
 
 branccs, 639 
 giving special 2wwcrs to Aqimnum Company, 621 
 authorising transfer of tramways to com2)any, 642 
 
 SPECIAL EXAMINER, 
 
 orders appointing, 502 et seq. 
 
 with interpreter, ibid, 
 iinlerfor u'itness to attend, 503 
 
 SPECIAL RESOLUTION, 
 
 alteration of articles by, 193 
 
 whether amendment permissible, 213 
 
 lopy, member entitled to, 113 
 
 as to increase of capital, 194 
 
 nature of, 190 
 
 notice to be given to Registrar, 207 
 
 form of notice Id llegislrar, 217 
 
 notices of 'meetings, 212 
 
 preferen(;e shares, as to creation of, 198 
 
 for tviniling up, notices, 529 
 
 SPECIE, 
 
 dirisidii of assets in, 87, 166
 
 INDEX. 671 
 
 SPINNING COMPANY, 
 
 objects of, 97 
 
 STAMPS, 
 
 cancellation of adhesive, 5 
 
 on conveyance, 336 
 
 on debentures, as to, 263 
 
 on registration of documents, 73 
 
 STANNARIES, 
 
 jjcfidoii in, for viiuling V}), 383 
 
 STATIONERS, 
 
 objects of, 98 
 
 STATUTORY DECLARATION, 
 
 on registrafioii of existing cowpany, 207 
 
 STAYING AC^TIONS, 522 
 
 STAYING AVINDING UP, 
 
 petition for, 384 
 orders for, 522, 593 
 
 STOCK, 
 
 conversion of shares into, clauses in articles as to, 128 
 resolution to convert slmres into, 198 
 
 STOCK EXCHANGE, 
 
 as to rules, 247 
 copy of rules, 184 
 
 SUBDIVISION OF SHARES, 
 
 clause in articles as to, 131 
 resolutions for, 198 
 law as to, 198 
 
 SUBSCRIBEl.', 
 
 memorandum of, liability of, 71 
 
 SUMjMONS, 
 
 formal parts (f, or(linar)j, 417 
 originating, 541 
 inlscethi nfi-iv.s, 417 et seq. 
 
 SUPERVISION. 
 
 Sec WlNDIXfi Ul> UNDER SUPERVISION. 
 
 SUPPLEMENTAL CONTRACT, 
 
 adopting preliminary contract, 1, 30 
 
 SURRENDER OF SHARES, 
 
 clause in articles as to, 153 
 
 SYNDICATE, 
 
 agreement, 56 
 company, as to, 93 
 
 TABLE A, 
 
 when it applies, 111 
 
 articles adopting in part, 172 
 
 special resolution that it shall no longer apply, 194 
 
 TESTIMONIUM CLAUSE, 
 
 M'here contract not under soal, 5 
 
 TRADE PROTECTION, 
 
 objects cfsocicfJifor, 108
 
 G72 INDEX. 
 
 TRAI^tWAYS, 
 
 objects of comiKinij, 105 
 
 TRANSFER, 
 
 of petition, ordci", 427 
 of actions, 493, 494 
 
 TRANSFER OF SHARES, 
 
 chinscs in (irtidcs as to, 123 
 
 ibiiu of, 124 
 
 ]irivate coiiipanj', iu, as to, 341, 355 
 
 liglits of members as to, 123 
 
 riyJit vf jirr-etitptioii to /iicmbcrs, 341 
 
 closing, books, 12(5 
 
 TRANSMISSION OF SHARES, 
 clauses ill articles as to, 127, 343 
 
 TRUST DEED 
 
 /(;/• securing clebcnturcs, 283 
 reference in debenture to, 268 
 as to securing debenture stock, 279 
 order to carry into execution, 364 
 
 TRUSTEE 
 
 for intended company, liability of, 2 
 power for company to be, 84 
 
 TRUSTEE RELIEF ACT, 
 
 as to paying policy moneys into Court under, 307 
 
 TRUSTS 
 
 not to be recognised, 117 
 
 ULTRA VIBES', 
 cases of, 66 
 
 alteration of articles, 193 
 ratiKcation of, not possible, 66 
 actions on behalf in case of, 364, 367 
 writs in actions, 364 
 orders to restrain, 396 et scq. 
 
 UNCALLED CARITAL, 
 
 as to debentures charging, 260 
 clause in articles as to charging, 132 
 
 UNCLAIMED DIVIDENDS, 
 
 in iri ruling- up, order as to, 523 
 practice as to, 524 
 
 UNDERTAKING, 
 
 mortgage of the, as to, 258 
 
 UNLIMITED COMPANY, 
 memorandum as to, 63 
 form of, 81 
 registration under Part VII. of Act of 1862, 207 
 
 VACANCIES, 
 
 directors inaij act nolicitJistandi/Kj, 91 
 director's, fllinrj up, 143, 147 
 
 VALUATION, 
 aale at a, 26 
 when sale at a, enforceable, 26
 
 INDEX. 673 
 
 VENDORS, 
 
 sfiares postponed as regards dividnuh, 19 
 shairs to hold for certain 'period, 28 
 subscribing memorandum, 72 
 
 VOTES OF MEMBERS, 
 
 clauses in articles as to, 137 
 rights in regard to, 137 
 wjnndion against refusal, 394 
 
 WAREHOUSEMAN, 
 
 agreement for sale of business, 24 
 
 WARRANT, 
 
 share to bearer, 128 
 dividend, 219 
 
 WATERWORKS COMPANY, 
 
 objects of, 96 
 
 WINDING UP (COMPULSORY), 
 
 advertising the order, 432 
 
 a^nending petition, order, 422 
 
 actions and proceedings, as to staying and restraining, 489 
 
 orders, 490 et seq. 
 order for transfer of action, 493 
 actions, liberty to creditors to bring, 494 
 
 orders giving, 495 ct seq. 
 advertisement of petition, 419 
 affidavit, farmed facts of , 418 
 affi,davit in support of jieMtion, 420 
 affidavit of service ofjietition, 420 
 affidavits with a vicio to com2)ro7nise, 511 
 affidavit in support ofj)etition, 420 
 appeals, as to, 520 
 bank, local, 451 
 
 books, orders enforcing delivery of, 448 
 borroicing, orders authorising liq,, 430, 451 
 calls, orders as to, 465 et seq. 
 
 practice as to, 464 
 carrying on business, 
 orders as to, 449 
 practice as to, 428 
 eases where orders commonly made, 428 
 clauses in articles as to, 166 
 co7npro/nise, affidavit with a view to, 511 
 form of agreement as to, 513 
 orders confirming, 513, 514 
 concurrent petitions, 426 
 contributories, liberty to attend, 483 
 contributories, practice as to, 461 
 list of contributories, orders as to, 462 
 
 adjusting rights of, 166 
 costs of2)etition, order, 423, 425, 426, 516 
 costs of off. liq. taxation and payment, 516 
 costs, security for, 403 
 county court, reference to, 427 
 cross-examination on affidavits, notice, 501 
 
 practice as to, 501 
 crown debts, oi-der for payment, 479 
 creditors, practice as to, 475 
 
 affidavits by, jnvving debts, 469, 470, 471 
 
 certificede of, 474 
 
 dividends to, 475 
 
 inquiry what securities given. 453, 482 
 
 landlord, liberty to distrain, 496 
 
 liberty to attend, 483 
 
 liberty to prove after time eo'inrcd, 475 
 
 order varying certificate, 476 
 
 X X
 
 674 INDEX. 
 
 WINDING UP (COMPULSORY)— t"o)i</n/(e(?. 
 creditors, practice as to — 
 secured, as to, 480 
 
 secured, declaration, of ■rights, 481 
 
 summons by, to admit, 473 
 
 liberty to proceed, 495 
 debts incurred by off. liq., 
 
 affidavit as to, 477 
 
 orders for payment, 477, 478 
 debts enforci7ig payment in, 467 
 discovery and inspection of documents, as to, 498 
 
 orders for, 498, 499 
 dismissal of company's servants, 61 
 dismissal of 2Ktition, order for, 423 
 dissolution orders, 524 
 distress, liberty to levy, 497 
 distribution of assets in, 166 
 distribution in specie, 166 
 dividends unclaimed, order as to, 523 
 examination under s. 115, 504 
 executions, orders restraining, 491 
 
 jiractice as to, 489 
 injunction restraining 2)Tesentation of petition, 402 
 inspectio7i under s. 156 of Act, 499 
 liberty to attend, 483, 484 
 lien, solicitor's, 516 
 
 meetings of creditors and contributories, as to, 515 
 misfeasance, order as to, 507 
 mortgagees, orders as to, 480 et scq. 
 motion, notice of, 418 
 notice of jietition, 419 
 
 official liquidator, sec Official Liquiuatoii. 
 order as to service of summonses, &e. 
 
 within thejiirisdic/tini, 485 
 
 02U of the jurisdiction, 486 
 
 substituted, 488 
 petition for, by judgment creditor, 375 
 policy holder, 377 
 debenture holder, 378 
 siinple contract creditor, 379 
 camjiion/ itself, 380 
 in Palatine Court, 383 
 in Stannaries, 483 
 proceedings under s. 165 for misfeasance, &c., 
 practice, 507 
 
 orders against directors, 507 el seq. 
 provisional liquidators, orders as to, 428 ct scq., and sec PftOVisiONAL 
 
 Official Liquidators. 
 removal of goods, order restraining, 492 
 I'ent, order to i)ay, 477 
 rates, 478 
 
 revivor of picHHon, order for, 424 
 sales of property, 
 
 orders as to, 455 
 
 conditional contracts, orders confinning, 410, 455 
 
 off. lifi. to concur in sale by trustees for debenture holders, 
 sales by execution creditors, restraining, as to, 455 
 secured creditors, as to, 480 
 security for costs, 403 
 solicitor of otf. licp, 434 
 service of petition, 421 
 service of summons, d-c, 485 
 standing over of2}ctition, order as to, 422 
 
 practice as to, 423 
 staying, order, 522 
 special examiners, orders as to, 501 
 summon.^ to proceed, 417 
 transfer of petition, 427 
 withdrawal of petition, practice as to, 423 
 withdrawal of j)ctition, order for, 423
 
 INDEX. 675 
 
 WINDING UP (UNDER SUPERVISION), 
 
 accounts of liq., as to, 548 
 
 actions restraining, as to, 547 
 
 actions, &c., liberty to bring and take, 547 
 
 advertising, order, as to, 432 
 
 applications to court, practice as to, 492 
 
 contributories, practice as to, 548 
 
 cofitti of liq., order to tax, 549 
 
 practice as to, ibid. 
 creditors, practice as to, 548 
 dissolution, order to convene final meeting, 550 
 
 practice as to, 550 
 liqtoidators, orders as to, 546 
 liquidcdor, removed, 546, 549 
 liquidator, remuneration of, 548 
 remunerfdion. of liq., 548 
 orders for, 545 
 
 efiect of, 546 
 practice in, ibid. 
 restraining actions, as to, 547 
 solicitor of liq., order as to, ibid. 
 
 WINDING UP (VOLUNTARY), 
 
 accounts of liq., order as to, 482 
 
 practice as to, 482 
 actions and proceedings, as to restraining, 535 
 applications under s. 138, as to, 541, 542 . 
 
 oreler giving liberty to apply, 443 
 ccdls,formof, 531 
 
 7iotic(; of, 532 
 
 orders enforcing, 532, 533 
 compromises, practice as to, 531 
 contributories as to, 530, 531 
 
 notice as to settling list, 530 
 
 enforcing payvicnt of debts due from, 533 
 conveya'iice by liq., form of, 537 
 
 practice as to, 538 
 costs of liq. summons to tax, 539 
 
 practice as to, 539 
 creditors as to, 536 
 
 sicmmons to adjudicate, 536 
 
 order for inquiry as to, Ibid, 
 
 dividends to, ibid. 
 dissolution proceedings, 544 
 
 notice of final meeting, 543 
 
 notice to registrar. 544 
 
 books, as to disposal of, ibid. 
 
 \w order for winding up, after, 545 
 extraordinary resolution for, 
 
 Avhat notice requisite, 529 
 
 form of notice, 528 
 liquidators, as to resolutions appointing, 528 
 
 resolutions apimnting, 528, 563 
 liquidator, accounts of, as to, 539 
 liquidator, removal of, 540 
 liquidator''' s remimeration, 538 
 liqtiidcdor, taxation of costs, 539 
 meetings, in course of, 54 
 motion, notice of, in, 541 
 
 practice as to applications by, 541, 542 
 notices with a view to, 527 ct scq. 
 remuneration of liq., resohdions, 538 
 
 practice as to, 539 
 removal of liq. order-^for, 540 
 resolutions with a vicvj to, 528, 563 
 sales Ijy liquidator, as to, 537 
 
 order for, 455, 542 
 summons on, 531 
 
 practice as to applications by, 531 
 summons, order giving liberty to ap)ply, 543
 
 676 INDEX. 
 
 WITNESS, 
 
 order to attend, 503 
 notice to produce, 501, 503 
 cross-examining, 501 
 
 WITNESSES, 
 
 cross-exaniination of, as to, 501, 503 
 notice to produce, ibid. 
 order to attend, 503 
 
 WRITS, 
 
 shares, rescission of contract, 361 
 rescission and damages, 361 
 shares, misrejrrescntations, damages, 362 
 shares, fraud , daiimgcs, 362 
 to set aside fraudidc id assignment of mines, 362 
 to recover bribe from directors, 363 
 
 promoters, ibid, 
 debentures, to enforce, 364 
 ultra vires agixement, ibid, 
 ultra vires resolutions, 365 
 dividend out of capital, restraining, ibid, 
 exchuling director, injunctions, 366 
 
 THE END. 
 
 BRADBURY, AONKW, & CO., PRINTERS, WHITEKICIARS.
 
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