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Power of companies to change
COMPANIES ACT, 1862.
quence, may be altered in the same manner as the other regulations contained in those articles.
It will be observed that "conditions" is the term applied to the requirements of the memorandum of association; "regulations" to the provisions of Table A, or of articles of association.
No alteration in the memorandum not authorized by this section can be made; not even (apparently) in pursuance of an express power in the memorandum. Feilings and Rimington's case, 2 Ch. 714.
A further power of modifying the memorandum is, however, given by the Act of 1867, which enables a limited company to make the liability of its directors unlimited, and enables companies limited by shares to reduce their capital and shares, and to subdivide their shares (30 & 31 Vict. c. 131, s. 8, ss. 9-20, and 21-2).
Under this section directors may, after a special resolution to increase capital by an issue of new shares has been duly passed and confirmed, at once issue the shares. But where a company has not power by its original regulations to reduce capital, two special resolutions are requisite under s. 9 of the Act of 1867. Campbell's case, 9 Ch. 1, in effect overruling the opinion expressed by Kelly, C.B., in Bank of Hindustan v. Alison, L. R., 6 C. P. 222; W. India Steamship Co., 9 Ch. 11, n.
Unauthorized issue of new shares by directors held to be confirmed by company. Sewell's case, 3 Ch. 131.
As to an issue of half shares in absence of a statutory power, and as to estoppel by receipt of dividend, see Hull Flax Co. v. Wellesley, 6 H. & N. 38.
See ss. 28, 29, 50.
XIII. Any company under this Act, with the sanction of a special resolution of the company passed in manner hereinafter mentioned, and with the approval of the Board of Trade, testified in writing under the
hand of one of its secretaries or assistant secretaries, may change its name, and upon such change being made the registrar shall enter the new name on the register in the place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case; but no such alteration of name shall affect any rights or obligations of the company, or render defective any legal proceedings instituted or to be instituted by or against the company, and any legal proceedings may be continued or commenced against the company by its new name that might have been continued or commenced against the company by its former name.
The issue of the certificate of incorporation is necessary to complete the change of name. Shackleford, Ford, & Co. v. Dangerfield, L. R., 3 C. P. 407.
Articles of Association.
to be pre
XIV. The memorandum of association may, in the Regulations case of a company limited by shares, and shall, in the scribed by case of a company limited by guarantee or unlimited, association. be accompanied, when registered, by articles of associa tion signed by the subscribers to the memorandum of association, and prescribing 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 adopt all or any of the provisions contained in the Table marked A in the first schedule hereto; they shall, in the case of a company, whether
Application of Table A.
COMPANIES ACT, 1862.
limited by guarantee or unlimited, that has a capital divided into shares, state the amount of capital with which the company 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 number of members with which the company 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 write opposite to his name in the memorandum of association the number of shares he takes.
See s. 16., Sch. II., Forms B., C., D.; and for additional precedents see Appendix II.
XV. 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 lastmentioned regulations shall, so far as the same are applicable, be deemed to be the regulations of the company in the same manner and to the same extent as if they had been inserted in articles of association, and the articles had been duly registered.
Table B, under the Act of 1856, has in several cases been treated as a code of rules made obligatory by Act of Parlia ment on the company. The exact contrary is the fact: Table B, under that Act, and Table A, under this Act, are simply model forms which a company shows an intention to adopt if it fail to register articles of association. They
have no parliamentary sanction whatever, and bind the
The power to alter the regulations contained in Table A,
The existence of this power would seem altogether to preclude the interference of a court of equity in the internal affairs of a company, except in cases where the company exceeds the objects, as contradistinguished from the powers, of the corporation (see observations, p. 114).
XVI. The articles of association shall be printed, Stamp, sigthey shall bear the same stamp as if they were con- effect of tained in a deed, 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 company 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 moneys payable by any member to the of the conditions and regucompany, in pursuance lations of the company or any of such conditions or regulations, shall be deemed to be a debt due from such member to the company, and in England and Ireland to be in the nature of a specialty debt.
"And all moneys payable," &c. How far a statutory obligation to pay creates a specialty debt, see Cork and
tion of me
tion, and articles of
with fees as
in Table B.
COMPANIES ACT, 1862.
Bandon Rail. Co. v. Goode, 13 C. B. 826, 17 Jur. 555. It seems very difficult to reconcile with that case the decision in Welland Rail. Co. v. Blake, 6 H. & N. 410, 7 Jur. N. S. 373, except on the most unsatisfactory ground that a colonial statute differs from an imperial Act in the nature of the obligation which it creates.
XVII. The memorandum of association and the morandum articles of association, if any, shall be delivered to the registrar of joint-stock companies hereinafter mentioned, who shall retain and register the same: there shall be paid to the registrar by a company having a capital divided into shares, in respect of the several matters mentioned in the Table marked B in 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 capital 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 direct all fees paid 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.
Effect of registration.
XVIII. Upon the registration of the memorandum of association, and of the articles of association in cases where articles of association are required by this Act or by the desire of the parties to be registered, the