the eye of the law a company is a partnership of a special kind, the principal difference being that the shares are transferable without the consent of all the partners. The difference was stated by the late Lord Justice James, in Smith v. Anderson, 15 C. D. 273 (decided in 1880), thus: “An ordinary partnership is a partnership composed of definite individuals, bound together by contract between themselves to continue combined for some joint object, either during pleasure or during a limited time, and is essentially composed of the persons originally entering into the contract with one another. A company or association (which I take to be synonymous terms) is the result of an arrangement by which the parties intend to form a partnership which is constantly changing; a partnership to-day consisting of certain members, and to-morrow consisting of some only of those members along with others who have come in, so that there will be a constant shifting of the partnership, a determination of the old and a creation of a new partnership; and with the intention that, so far as the partners can, by agreement between themselves, bring about such a result, the new partnership shall succeed to the assets and liabilities of the old partnership." Common law joint stock companies were formed in large numbers before any Act for the registration of companies was passed. They were usually constituted by an instrument called a deed of settlement, and there can be no doubt of their validity at common law. See Lindley, 4th ed. p. 191; Smith's Mercantile Law, 8th ed. p. 61; Wordsworth on Joint Stock Companies, 6th ed. p. 247. But after the Registration Act of 1844 (7 & 8 Vict. c. 110), such companies, whether small or large, could no longer be formed, for commercial purposes or profit, by deed merely they were required to register: for the Act was to apply to every joint stock company as thereinafter defined, and the definition included " every partner. ship whereof the capital is divided or agreed to be divided into shares, and so as to be transferable without the express consent of all the co-partners." However, this Act was repealed by the Companies Act, 1862, and the only restriction which that Act places on the common law right to form a company is contained in section 4, which provides that no company, consisting of more than twenty members, shall be formed after the commencement of the Act for the purpose of carrying on any business that has for its object the acquisition of gain, unless it is registered under the Act, or is otherwise formed, as therein mentioned. So that as regards the formation of companies consisting of less than twenty members the common law is restored. The Joint Stock Companies Act, 1857, only allowed the registration of companies (not formed thereunder) where they had been duly constituted by law prior to the passing of this Act," but the Act of 1862 (section 180) allows every company existing at the commencement of the Act, and "any company hereafter formed in pursuance of any Act of Parliament other than this Act, or of letters patent, or being a company engaged in working mines within and subject to the jurisdiction of the Stannaries, or being otherwise duly constituted by law, and consisting of seven or more members," to register. But a company cannot register as a company limited by 66 shares unless it is "a joint stock company as defined by section 181 of the Act, viz., a company having a permanent paid-up or nominal capital of fixed amount.... and formed upon the principle of having for its members the holders of shares in such capital.... and no other persons," or possessed of certain other characteristics therein mentioned. However, a company formed as above mentioned (p. 167, et seq.) comes within this definition; and, as we have already seen, it can, if consisting of less than twenty members, be "duly constituted" by deed of settlement. This is the view which has been taken by the Registrar of Joint Stock Companies, and s. 192 of the Act makes the certificate of incorporation issued by him conclusive evidence that a company is authorised to register. INDEX. ABORTIVE COMPANIES, ACCEPTANCES of bills, as to, 35 ACCOUNTS, as to keeping, 63, 123, 164 adoption at meeting, 45 Table A, as to, 123 ACT OF 1862, meaning of expression. (See PREFACE.) ACT OF 1867, meaning of expression. (See PREFACE.) ACTION for injunction, as to, 108 ADJOURNMENT of meeting, as to, 55, 120 AGENT, power to contract for company, 162 AGREEMENT to take shares, 3 preliminary, 78, 147, 165 adoption of, 87 ALLOTMENT of shares, letter of, 3 of articles, 28, 58 AMALGAMATION AMENDMENTS, what admissible, 48 ANNUAL returns to Registrar, 75 APPLICATION for shares, letter of, 3 for shares, withdrawal, 4 ARRANGEMENTS with creditors, mode of effecting, 107 ARTICLES OF ASSOCIATION, nature of, 2 what companies have, 2 if none, how company governed, 2 right of members to copy, 2 for a private company, 155, et seq. inconvenience of badly framed, 84 registration of, 86. 165 "regulations," meaning in this work, 2 who presumed to know, 2, 109 alteration of, 28, 58 ASSIGNMENTS, form of, 36 ASSOCIATIONS, illegal, 90 registration of charitable and others without the word "limi ted," 95 AUDIT of accounts, as to, 63, 164 Table A, as to, 124 BALANCE SHEET in Table A, 124, 126 BANKRUPTCY of shareholders, as to, 13, 140, 159 BILLS AND NOTES, as to signing, 35 as to accepting, 35 BOARD OF TRADE, applications to, 68, 96 |