313; [1912] 1 K. B. 330; 106 L. T. 185; 76 J. P. 93; 19 Manson, 97-D.

Neglect to Make Returns-Striking_Name off Register-Application to Court to Restore Name.]-Where a company neglects to send to the registrar of joint-stock companies the annual return required by s. 26 of the Companies Act, 1862, as amended by s. 19 of the Companies Act, 1900, and the registrar strikes the name of the company off the register under 8. 7, sub-s. 4 of the Companies Act, 1880, as a defunct company, the court, upon an application under s. 7, sub-s. 5 of the Act of 1880 to restore the name to the register, has no power to impose a penalty as a condition of restoring the name. By s. 7, sub-s. 4 of the Act of 1880, the effect of striking the name of a company off the register is to dissolve the company, but the personal liability of its officers for the engagements made as its agents is preserved, and the mere restoring of the name to the register does not relieve them from that liability. To relieve them from liability the court must make an order under s. 7, sub-s. 5. Brown Bayley's Steel Works, In re, 21 T. L. R. 374.

In September, 1900, a limited company was struck off the register of joint-stock companies on the ground that it had not filed the proper returns with the registrar. At this date the company held an asset of the value of £2,000 which it was about to sell, but in consequence of being struck off the register it was unable to do so. In December, 1901, a contributory and director of the company presented a petition to the court under s. 7, sub-s. 5 of the Companies Act, 1880, as amended by s. 26, sub-s. 2 of the Companies Act, 1900, for an order for the restoration of the company's name to the register, on the ground that it would be just to do so, as otherwise the company's assets would fall to the Crown as bona vacantia. The court granted the prayer of the petition, but ordained the returns to be transmitted to and received by the registrar-the costs in the proceedings incurred by the registrar of joint-stock companies to form a first charge on the assets of the company. Healy, Petitioner, 5 F. 644-Ct. of Sess.

Company's Name Struck off Register— Petition to Restore-Shareholders the Only Petitioners-Company Party to Undertake.]— Where the name of a company has been struck off the register under s. 242 of the Companies (Consolidation) Act, 1908, and a petition to restore is brought by shareholders, the company should be added as co-petitioner in order that they may give the undertakings required by the Board of Trade to make the necessary returns. Wright, Lim., In re, 67 S. J. 577.

Name struck off-Restoration.]-The power given to the court by sub-s. 5 of s. 7 of the Companies Act, 1880, to restore to the register of joint-stock companies the name of a com. pany which has been struck off by the registrar under the provisions of that section, if the court is satisfied that the company was at time of the striking off carrying on business or in operation," applies to the case of a company which at the time of the striking off was carrying on business only for the purpose of

winding-up voluntarily and realising its assets. Outlay Assurance Society, In re, 56 L. J. Ch. 448; 34 Ch. D. 479; 56 L. T. 477; 35 W. R. 343; Hall & Co., In re, 60 S. J. 666.

The winding-up of a company began in 1880, and a call was made in May, 1883. The registrar of joint-stock companies sent notice to the office of the company as required by s. 7 of the Companies Act, 1880, but by an accident the notice could not be delivered and it was returned. In April, 1887, he struck the name of the company off the register. Nothing appeared to have been done by the company between 1883 and 1888, but on petition by the liquidator to have the name restored, and on production of evidence that some debts were still unpaid as also some calls, the court directed the company's name to be restored to the register. Carpenter's Patent Davit Co., In re, 1 Meg. 26.

Restoration of Name to Register.]-Circumstances in which the court made an order restoring the name of a company to the register on the solicitors for the petitioner undertaking forthwith to cause a petition for its windingup to be presented. Langlaagte Proprietary Co., In re, 28 T. L. R. 529.

Petition for Service of.]-As to the proper mode of serving a petition for restoration of a defunct company's name to the register, see Anglo-American Exploration and Development Co., 67 L. J. Ch. 45; [1898] 1 Ch. 100; 4 Manson, 389.

-

Conclusive

Certificate of Incorporation ness.]-Where a company formed in April, 1889, by twelve persons with the primary object of acquiring and carrying on a particular partnership business, had been registered in the same month under Pt. VII. of the Companies Act, 1862, and a certificate given by the registrar under s. 192 of that Act, stating that the company was incorporated as a limited company under the Companies Acts :-Held, that such certificate was conclusive evidence that it was a company authorised to be registered under Pt. VII., even if the company had been formed for the mere purpose of being so registered. R. V. Registrar of Joint-Stock Companies. Er p. Johnston, [1891] 2 Q. B. 598, 611, 613, discussed. Hammond Prentice Brothers, Lim., [1920] 1 Ch. 201; 89 L. J. Ch. 91; 18 L. G. R. 73; 122 L. T. 307.

V.

Discretion of Registrar to Register-" The United Dental Service, Limited."]-Application was made to the registrar of joint-stock companies to register the memorandum and articles of association of a company called

The United Dental Service, Limited," which proposed to carry on the business of practitioners in dentistry. The signatories to the memorandum and articles were all unregistered practitioners in dentistry. The registrar refused to register, on the ground that the object of the company was not lawful :-Held, that the words "United Dental Service were not a description implying that the persons using it were qualified by diploma, &c., to be were registered under the Dentists Act, 1878, and that, consequently, the object of the

or

company was not unlawful. Held, further, that the registrar had no discretion to refuse to register on the ground that, even though not unlawful, the title of the company was calculated to mislead the public into the belief that the persons using the title were so qualified. Bellerby v. Heyworth (79 L. J. Ch. 402; [1910] A. C. 377) and Minter v. Snow (74 J. P. 257) applied. Panhaus v. Brown (68 J. P. 435) commented on. R. v. Registrar of Joint-Stock Companies; Bowen, Ex p., 84 L. J. K. B. 229; [1914] 3 K. B. 1161; 112 L. T. 38; 30 T. L. R. 707-D.

Refusal to Register Name as being Calculated to Deceive -Discretion of Registrar.]— The registrar of companies having refused to register a company under the name of the Water Softening Materials Company (Sofnol), Limited, on the ground that the name nearly resembled that of a company already on the register-Water Softeners, Limitedas to be calculated to deceive, the subscribers to the memorandum of the Water Softening Materials Co. (Sofnol), Lim., applied for and obtained a rule nisi for a mandamus calling upon the registrar to show cause why he should not register the company under that name :Held, that the rule should be discharged, as the court would not interfere by mandamus with the registrar's decision. R. v. Registrar of Companies; Paul, Ex p., 81 L. J. K. B. 914; [1912] 3 K. B. 23; 107 L. T. 62; 19 Manson, 280; 28 T. L. R. 457-D.

Foreign Company-Obligation to File Documents with Registrar-Company Establishing a a place of business" within the United Kingdom.]-A land investment company, incorporated and having its head office in Canada, employed as agents in the United Kingdom certain Scottish legal firms who issued advertisements inviting applications for investment in the company's debentures to be lodged with them, the agents, and instructing that money invested should be paid into a Scottish bank. The debentures were executed in Ontario and issued to investors in this country through the agents. Attorneys of the company in Scotland exercised on its behalf certain powers with regard to transfers of debentures, confirmation, and probate. The company did not own or pay rent for any office, or pay salary to any official, in the United Kingdom, the remuneration of its representatives here being derived solely from commissions and fees of transference :-Held, that the company had not established a place of business in the United Kingdom within the meaning of s. 274 of the Companies (Consolidation) Act, 1908. Lord Advocate v. Huron and Erie Loan and Savings Co., [1911] S. C. 612-Ct. of Sess.

XIX. SHARES AND STOCK.

1. CHARACTER OF PROPERTY, Shares not an Interest in Land.]-Shares in an incorporated company are not an estate or an interest in land within the meaning of the Statute of Mortmain; nor does it make any difference that the Act of Parliament incorporating the company does not contain a

clause declaring the shares to be personal estate. Edwards v. Hall, 6 De G. M. & G. 74; 25 L. J. Ch. 82; 1 Jur. (N.s.) 1189; 4 W. R. 111.

A contract for the sale of shares in a costbook mine is not necessarily a contract for an interest in land, within s. 4 of the Statute of Frauds. Walker v. Bartlett (in error), 18 C. B. 845; 25 L. J. C. P. 263; 2 Jur. (N.S.) 643; 4 W. R. 681. S. P., Powell v. Jessopp, 18 C. B. 336; 25 L. J. C. P. 199; 4 W. R. 465.

Not Goods.]-A share in a mining company is not goods, wares or merchandise, within s. 17 of the Statute of Frauds. Watson v. Spratley, 10 Ex. 222; 2 C. L. R. 1434; 24 L. J. Ex. 53; 2 W. R. 627.

an

Rights and Liabilities of Shareholders inter se.]-A share in a company is not to be regarded as a sum of money settled subject to certain conditions contained in the articles of association; but is to be regarded as interest in the company, measured, it is true, for the purposes both of liability and interest, by a certain sum of money, but impressed also from its inception with the various rights and liabilities contained in the contract entered into by means of the articles of association by all the shareholders inter se, in accordance with s. 16 of the Companies Act, 1862. Borland's Trustee v. Steel Brothers & Co., 70 L. J. Ch. 51; [1901] 1 Ch. 279; 45 W. R. 120; 17 T. L. R. 45.

as

Membership Qualifications Liability for Dues.]-At a meeting on July 8, 1904, of the directors of the Aberdeen Master Masons' Incorporation, Ltd., incorporated under the Companies Acts, S. was admitted as a member of the incorporation. On account of his age, and for other reasons, S. was, in accordance with the articles of association, ineligible for membership, but he accepted membership and acted a member till March 20, 1906, when he sent in a letter of resignation. On June 4, 1906, the incorporation sued S. for payment of dues incurred by him prior to the date of his resignation. S. pleaded that he never was a member of the incorporation, and had consequently never incurred the dues :-Held, that the defender was liable on the ground that he was a member of the incorporation, the objections to his admission being pleadable by the company and by no one else, Lord Kinnear also holding that, whether he was technically a member or not, he was bound by his agreement with the incorporation. Aberdeen Master Masons' Incorporation v. Smith, [1908] S. C. 669-Ct. of Sess.

Choses in Action-Bankruptcy-Order and Disposition.]-Shares in a railway company are choses in action such as to be excepted from the doctrine of reputed ownership by s. 44 (iii.) of the Bankruptcy Act, 1883. Colonial Bank v. Whinney, 56 L. J. Ch. 43; 11 App. Cas. 426: 55 L. T. 362; 34 W. R. 705: 3 Morrell, 207-H. L. (E.).

B. and J. were in partnership as stockbrokers. Some shares in a railway company were bought with partnership money, and

2. SHAREHOLDERS, CLASSES OF.

a. Bankrupt.

Effect of Bankruptcy.]-A shareholder in a company, completely registered, became bankrupt and obtained his certificate. By the deed of settlement the shareholders covenanted that they, or their executors, administrators or assigns, would pay, in manner thereinafter directed, the amount of all calls required to be paid on their shares, and by one of the clauses of the deed no assignees of a bankrupt or insolvent shareholder should be entitled to become shareholders in respect of any shares heid by such bankrupt or insolvent, but the assignees were to be entitled to sell the shares, upon leaving with the secretary the official copy of the document necessary to establish the pankruptcy and the right of the assignees. By a subsequent clause the directors were empowered, where circumstances should require it, to call upon all the shareholders, other than the deceased, or bankrupt, or insolvent shareholders, their executors, administrators assigns, to pay up the calls made on their shares. By subsequent clauses the directors were empowered, in case of the non-payment of calls, by the shareholders, to declare such shares forfeited and sell them, the rights of assignees to prior dividends being preserved to them, with leave also to the shareholders whose shares should be so forfeited, to tender the amount before sale, and to redeem the shares, and to be and become holders of the shares again. After bankruptcy of a shareholder, the directors made a call and sued him for it. The assignees did not take any steps to sell the shares-Held, that on his bankruptcy the shareholder ceased to be a shareholder liable to calls, and consequently that his bankruptcy was a good defence to the action for calls made subsequently. Wylam Steam Fuel Co. Street, 10 Ex. 849; 3 C. L. R. 880; 24 L. Ex. 208.

or

V.

J.

Bankruptcy and certificate are no bar to an action for a call in respect of shares held by a person in a company registered under the Joint Stock Companies Acts of 1856 and 1857, made after the adjudication; the liability in respect of such call not being a liability at the time of the filing of the petition to pay money on a contingency, within the Bankruptcy Act of 1849 (12 & 13 Vict. c. 106), s. 178. General Discount Co. v. Stokes, 17 C. B. (N.s.) 765; 34 L. J. C. P. 25; 10 Jur. (N.S.) 1205; 11 L. T. 422; 13 W. R. 138.

If a shareholder in a company under the Companies Act, 1862, becomes bankrupt and obtains his discharge, but still continues to hold his shares, he is liable to pay calls made in respect of such shares subsequently to the adjudication. Martin's Patent Anchor Co. v.

Morton, 9 B. & S. 183; 37 L. J. Q. B. 98; L. R. 3 Q. B. 306.

The Bankruptcy Act, 1861, s. 154, does not apply to calls. Ib.

The Companies Act, 1862, s. 75, does not apply to the case of a bankruptcy where the bankrupt is discharged before the commencement of the winding up of the company; but only to the case of a bankruptcy pending during the winding-up. Ib.

Disclaimer of Shares, as to, by Trustee.]— See Bankruptcy Act, 1883, s. 55, and Bankruptcy Act, 1890, s. 13; also BANKRUPTCY.

Repudiation by Assignees.]-A shareholder in a company became bankrupt, and obtained his discharge. Afterwards the company was wound up voluntarily. The assignees repudiated the shares, and they remained in the name of the bankrupt. At the time of the bankruptcy no calls were due, and no future calls were proved in the bankruptcy, nor was there anything to show that they were capable of valuation at the date of the bankruptcy Held, that the bankrupt remained liable to the future calls and must be put on the list of contributories. Hastie, Ex p., 38 L. J. Ch. 233; L. R. 4 Ch. 274; 20 L. T. 93; 17 W. R. 302.

Liquidation of Member Order of Discharge-Subsequent Call.]--The liability in respect of calls of a liquidating member of a company where the liquidation proceedings commenced prior to the winding-up of the company, and are pending at the time of the winding-up, is a debt or liability which is not

64

incapable of being fairly estimated," and which is therefore provable in the liquidation. When, therefore, under these circumstances, a company winding up has failed to carry in a proof in the liquidation proceedings of a member of the company for calls, and the liquidating member obtains his discharge, he cannot afterwards be placed on the list of contributories. Furdoonjee's Case (3 Ch. D. 264) discussed and not followed. Mercantile Mutual Marine Insurance Association, In re; Jenkins' Case, 53 L. J. Ch. 593; 25 Ch. D. 415; 50 L. T. 150; 32 W. R. 360.

The

Transfer after Bankruptcy-Title of Trustee or Purchaser.]-The registered holder and owner of fifty shares in a company in 1864 became bankrupt, and the certificates passed into the hands of his assignee, who gave no notice to the company, and took no step. bankrupt died, and the shares were, under one of the regulations of the company, transferred into the name of his widow, who got new certificates from the company and sold fortyfive of the shares to a purchaser, for value, without notice. In 1869, the assignee for the first time (the shares suddenly becoming valuable) made a claim to the fifty shares :-Held, that, as to the forty-five shares, the claim of the purchaser for value must prevail over that of the assignee; but the five remaining shares were ordered to be transferred to him. London and Provincial Telegraph Co., In re; Butler's Case, 39 L. J. Ch. 419; L. R. 9 Eq. 653; 23 L. T. 237; 18 W. R. 597.

c. Executor.

i. Representative Liability. Presumption as to Liability.]—In a company the presumption is, that the executors of a deceased shareholder succeed to the full liability, as well as to the rights of their testator. The deed of settlement is to be looked at, not to see whether it imposes such liability on the executors, but whether it takes it away or limits it. Baird's Case; Agriculturist Cattle Insurance Co., In re, L. R. 5 Ch. 725; 23 L. T. 424; 18 W. R. 1094.

The fact that by the deed of settlement executors are not entitled to the full privileges of shareholders, until they or their nominees have been registered as shareholders, is no proof of an intention to limit their liability in their representative character. Ib.

Therefore, in the case of a company formed in 1845, where, in the opinion of the court, nothing appeared in the deed of settlement to limit the liability of the executors of a deceased shareholder :-Held, that their

liability was not limited to debts incurred before the death of the testator. Ib.

Measure of Representative Liability.]—A person who holds shares as the legal personal representative of the original owner of the shares is only liable to the extent of the assets of the person whom he represents. Evans v. Coventry, 25 L. J. Ch. 489; 2 Jur. (N.s.) 557; 4 W. R. 466.

Articles of Association-Effect of.]-The articles of association of a company provided that a person entitled to a share in consequence of the death or bankruptcy of a member shall not be entitled to . . . exercise the rights and privileges of a member, unless and until he shall have elected to be and shall have been registered as the holder of the share"-Held, that the article in question did not interfere with the rights of deceased shareholders as such, but only with the rights of executors and others in a representative capacity to exercise the privileges of members in their own behalf. Ib.

James v. Buena Ventura Nitrate Grounds Syndicate (65 L. J. Ch. 284; [1896] 1 Ch. 456) applied. Bowling and Wilby, In re (64 L. J. Ch. 427; [1895] 1 Ch. 663), distinguished. Llewellyn V. Kasintoe Rubber Estate, 84 L. J. Ch. 70; ante.

Liability of Deceased Shareholder's Estate.] -The estate of a testator is liable to contribute to the losses of a company of which the testator was at the date of his decease a member, until a new responsibility has been created by a transfer of the testator's shares, in accordance with the provisions of the deed of partnership. Although the executors of such testator

may not have done anything to take such responsibility upon themselves personally, or have clothed themselves with the character of proprietors of the shares, yet they are the undoubted owners of the shares, and are properly included in the list of contributories as such. The profits accruing upon the shares before a transfer would belong to the testator's estate, and therefore any losses must be borne by the deceased proprietor's estate until a new proprietor has been appointed and a transfer duly registered in the company's books. Blakeley's Case; Northern Coal Mining Co., In re, 3 Mac. & G. 726; 16 Jur. 299. Affirming 13 Beav. 133; 19 L. J. Ch. 566.

By a deed of settlement of a public company it was provided, that the company was to continue forty years; that the shares of deceased proprietors should belong to their personal representatives"; but that executors should never be deemed proprietors until they should be duly admitted proprietors, on the approval by the directors, and had executed the deed, &c., and then, but not before," they were to become proprietors, and entitled to receive the dividends :-Held, that upon the death of a proprietor his estate continued liable until a new personal liability had been created pursuant to the deed. Ib.

Calls in Lifetime of Testator.]-The form of declaration given by 8 & 9 Vict. c. 16, s. 26, is not applicable in an action for calls against an executor, where the calls were made in the lifetime of the testator. Birkenhead, Lancashire and Cheshire Ry. v. Cotesworth, 5 Ex. 226; 6 Railw. Cas. 211; 1 L. M. & P. 244; 19 L. J. Ex. 240; 14 Jur. 354.

Executor Contributory though not Proprietor.]-By a deed of settlement of a jointstock company, executors were not to be proprietors -Held, nevertheless, that they were contributories, and might maintain a petition to wind up. Norwich Yarn Co., In re, 12 Beav. 366.

Executrix put on List in representative Character.]-A. B., the proprietor of shares in a joint-stock banking company, died. His executrix produced the probate of his will, and for more than three years received the dividends which accrued on the shares, giving receipts for the same as executrix. By the deed of settlement of the company it was provided, that until certain acts were done constituting the executor of a deceased member or a purchaser of the deceased member's shares a partner in the company, the estate of the deceased member should remain liable :--Held, on winding up the company, that in the absence of any proof that the executrix had done any acts constituting her a member of the company the estate of the deceased partner was liable to contribute, and that the name of the executrix ought to be placed on the list of contributories in her representative character. Gouthwaite, Ex p., 3 Mac. & G. 187; 20 L. J. Ch. 188; 15 Jur. 137. Affirming 3 De G. & Sm. 258.

A testator was a shareholder in a jointstock banking company, which was established under the provisions of the 7 Geo. 4, c. 46, and according to the deed of settlement of