MEMORANDA OF ASSOCIATION. INTRODUCTORY NOTES. ANY seven or more persons, associated together for any Mode of formlawful purpose, may, by subscribing their names to a docu- ing company. ment called a memorandum of association, and otherwise complying with the requisitions of the Act in respect of registration, form an incorporated company, with or without limited liability. Section 6 of the Act. If limited liability is desired, the company must be either limited by shares or by guarantee. Section 7 of the Act. The memorandum of a company limited by shares must [Section 8 of the Act] contain the following things: 1. The name of the proposed company, with the word "Limited" as the last word in such name. 2. The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered office of the Company is proposed to be situate. 3. The objects for which the proposed company is to be established. 4. A declaration that the liability of the members is limited. 5. The amount of capital with which the company proposes 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 : shall write opposite to his name the number of shares he 1. The name of the proposed company, with the addition of the word limited as the last word to such name. 2. The part of the United Kingdom, whether England, Ireland, or Scotland, in which the registered office of the company is proposed to be situate. Memorandum of company limited by shares. Memorandum of company limited by guarantee. Memorandum of unlimited company. Registration of memorandum. Section 17. Certificate of 3. The objects for which the proposed company is to be formed. 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 be required not exceeding a specified amount. For a form of such a memorandum, see infra, pp. 98 and 99. If 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. [Section 14 of the Act.] As to this, see further, infra, p. 89. The memorandum of an unlimited company must [Section 10 of the Act,] contain the following things: 1. The name of the proposed company. By Section 17 of the Act it is provided that: "The memorandum of association and the 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." Upon the registration of the memorandum of association, incorporation. and of the articles of association in cases where articles of Effect. association are required by the Act, or by the desire of the parties to be registered, the registrar is to certify under his hand that the company is incorporated, and in the case of a : limited company that the company is limited and 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 be a body corporate by the name in the memorandum of association; capable forthwith of exercising all the functions of an incorporated 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 provided by the Act. Section 18 of the Act. effect of ture, and memorandum. Section 11 of the Act is as follows:-" The memorandum of Stamp, signaassociation shall bear the same stamp as if it were a deed, and shall be signed by each subscriber in the presence 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 subscribed his name and affixed his seal thereto, and there 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 the Act." With regard to the several clauses contained in the memorandum of association : As to the name : Name of This clause is required in every memorandum. The choice company. of the name rests with the subscribers of the memorandum. They are, subject to Section 20 of the Act, free to select any name they like, so, nevertheless, that the word limited shall, in case of a company limited by shares or by guarantee, form the last word of the name. [See, however, infra, p. 78.] Section 20 provides that:-No company shall be registered Section 20. 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 company, through inadvertence or otherwise, is, without such consent as aforesaid, registered by a mame identical with that by which a subsisting company is regis Improper use of name. Names descriptive of locality. "Colonial." Cases in which Court will interfere. tered, or so nearly resembling the same as to be calculated to deceive, such first-mentioned company may, with the sanction of the registrar, change its name, and upon such change being made, the registrar shall enter the new name on the register in 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 proceeding 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 registration of a company by a name which is calculated to deceive, by reason of its identity with or resemblance to the name used by some unregistered company, partnership, or person, will not prevent the Courts from intervening, in a proper case, by injunction, to protect the rights of such lastmentioned company, partnership, or person. As to the principles on which the Court interferes, see the notes to Croft v. Day; "Tudor's L. C. Merc. Law," 563; "Kerr on Injunctions," 474. In The London and Provincial Law Assurance Society v. The London and Provincial Joint-Stock Life Assurance Company, 17 L. J. Ch. 37, the Court refused to interfere by injunction. The absence of the word "Law" in the defendant's name materially influenced the decision. So too in the case of The Colonial Life Assurance Company v. The Home and Colonial Assurance Company, Limited, 33 Beav. 548; 33 L. J. Ch. 741, an injunction was refused. The Master of the Rolls there said: "The object of this application is really to obtain a monopoly of the use of the word colonial. If a company cannot call itself 'Colonial,' it cannot call itself London and Colonial,' or 'Liverpool and Colonial.' It is the exclusive use of the word colonial which the plaintiffs desire to have. "There are three classes of cases which ought to be distinguished one is that of trade marks, where a firm has for a considerable time carried on their trade, using a distinct mark on their goods. In that case if, without any intention to defraud, another person uses that trade mark, this Court will interfere to restrain him. That is not the present case. Another class of cases is where a man sets up business and uses the name of another person. "Again, the name may become the name of a firm by succession, and this Court would interfere to prevent a person using that name, although there might be no existing member of the firm of that name. Such is the case of Messrs. Child & Co. There is a similar class of cases which have been termed symbolical cases, such as the 'Atlas' or the 'Globe' Assurance Company. This is something in the nature of a trade mark. "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. It is obvious such a claim cannot be maintained; it would establish a monopoly of the use of the words 'home' and 'colonial.' Such a contention has never been before advanced. You may find in the Directory "The London Assurance Company,' and 'The London and Liverpool Assurance Company,' The Law Life Company,' and 'The Equity and Law Life Company,' where the same words are used in both cases. So you have the Times' and the Hereford Times;' but no one ever supposed that the Times' newspaper could apply for an injunction. This is a stronger case." An injunction was also refused in the case of the London Assurance Corporation v. The London and Westminster Assurance Corporation, Limited, 9 Jur., N. S. 843; 32 L. J., N. S. 664. See Estcourt v. Estcourt Hop Essence Company, 10 Ch. 276, where the Lord Chancellor was of opinion that an injunction would have been granted but for the plaintiff's laches. It is expedient here to draw attention to a rule made some As to the years ago by the Board of Trade, viz., that the registrar shall word royal. 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. g., where the word "Royal" has been used in connection with property which the company is to acquire, or where permission to use the word has been granted by the Home Office. This rule has been rigorously enforced, and accordingly |