Form 16. Agreement to specific sum for loss of office. It follows from this case that if a company made such an agreement, and then passed into liquidation, the agent could not prove for damages. Compare the above case with Gilbert's case, 26 L. T. 467, where an agent was allowed to prove for commission, which, but for a voluntary winding up, he might have earned. It is very common expressly to fix by agreement the compensation to be payable to the agent in case his agency shall be terminated by the company. Thus, in Logan's case, 9 Eq. 149; 14 W. R. 273; Logan was by the articles appointed managing director of a company, at 8001. per annum, and a commission on profits. Logan's Case. 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 misconduct, 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 claimed to prove for three years' salary. Romilly, M.R., said: "I think Mr. Logan is entitled to prove against the company for the amount claimed by him. It is part of the contract between Logan and the company that if Logan is deprived of his office the company are to pay him a sum equal to three years' salary, provided the removal from office is not occasioned by gross misconduct. That is a contract to be construed most strictly against the company; and I think that Mr. Logan is entitled to his claim, without any deduction being made, as in Yelland's case (supra, p. 43); for, suppose that while the company was a going concern, they had wished to remove him, because they wished to have a better man as manager, they would have had to pay him three years' salary, and he might have engaged himself to another company the very next day." See also Shirreff's case, 14 Eq. 417; 20 W. R. 966. It will be observed that the claim in Logan's case was rested on the clause in the articles. Query whether this would now be considered a contract binding on the company, Eley v. Positive, &c., Co., 1 Ex. Div. 88. An express contract ought to be made after the incorporation of the company. 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, "5,0007. 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 5,000l., 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. MEMORANDA OF ASSOCIATION. INTRODUCTORY NOTES. SECTION 6 of the Act of 1862 provides that : 6. Any seven or more persons associated for any lawful purpose may, by sub- Mode of scribing their names to a memorandum of association and otherwise complying forming with the requisitions of this Act in respect of registration, form an incorporated company. company, with or without limited liability. And section 7 provides as follows: 7. The liability of the members of a company formed under this Act may, Mode of according to the memorandum of association, be limited either to the amount, if limiting liaany, unpaid on the shares respectively held by them, or to such amount as the bility of members may respectively undertake 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 company limited by shares, section 8 provides that: members. 8. Where a company is formed on the principle of having the liability of its Memorandum members limited to the amount unpaid on their shares, herein-after referred to as a of association company limited by shares, the memorandum of association shall contain the of a company limited by following things; (that is to say,) (1.) The name of the proposed company, with the addition of the word (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, (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 : (2.) That each subscriber of the memorandum of association shall write opposite to his name the number of shares he takes. For form of such a memorandum, see infra, p. 60. As to the memorandum of a company limited by guarantee, section 9 of this Act provides as follows : shares. 9. Where a company is formed on the principle of having the liability of its Memorandum members limited to such amount as the members respectively undertake to contri- of association bute to the assets of the company in the event of the same being wound up, hercin- of a company limited by guarantee. Memorandum after referred to as a company limited by guarantee, 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 (2.) The part of the United Kingdom, whether England, Scotland, or Ireland For form of such a memorandum, see infra, p. 61. 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. 55. 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 on of association the liability of its members, herein-after referred to as an unlimited company, the memorandum of association shall contain the following things; (that is to say,) (1.) The name of the proposed company : of an un limited company. Registration Effect of registration. (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, For form, see infra, p. 67. With regard to the registration 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, 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. Copies of tables B. and C. will be found infra, p. 58. As to the effect of registration, section 18 of this Act provides that : 18. 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 Registrar shall certify under his hand that the company is incorporated, and in the case of a limited company 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 be a body corporate by the name contained 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 is hereinafter mentioned: A certificate of the incorporation of any company given by the Registrar 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 memorandum, section 11 of this Act provides as follows: of association. 11. The memorandum of association shall bear the same stamp as if it were a Stamp, signadeed, and shall be signed by each subscriber in the presence of, and be attested by ture, and one witness at the least, and that attestation shall be a sufficient attestation in effect of Scotland as well as in England and Ireland: It shall, when registered, bind the memorandum 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 this Act. With regard to the several clauses contained in the memorandum of association : As to the name : company. This clause is required in every memorandum. The choice of the Name of 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. 48.] 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 company, through inadvertence or otherwise, is, without such consent as aforesaid, registered by a name identical with that by which a subsisting company is registered, 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. Section 20. The registration of a company by a name which is calculated to Improper use deceive, by reason of its identity with or resemblance to the name used of name. 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 last-mentioned company, partnership, or person. As to the principles on which the Court interferes, see the notes to Croft v. Day, in Tudor's L. C. Merc. Law, 563; and Kerr on Injunctions, 474. But in most of the reported cases against companies injunctions have been refused. See The London and Provincial Law Assurance Society v. The London and Provincial Joint Stock Life Assurance Company, 17 L. J. Ch. 37; The Colonial Life Assurance Company v. The Home and Colonial Assurance Company, Limited, 33 Beav. 548; 33 L. J. Ch. 741; The London Assurance Corporation v. The London and Westminster Assurance Corporation, Limited, 9 Jur., N. S. 843; 32 L. J., N. S. 664; The Merchant Banking Company of London v. The Merchants Joint Stock Bank, 9 C. D. 560; The London and County Banking Company v. The Capital and Counties Bank; mentioned in the last case. See also 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. 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 word 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. It is obvious such a claim cannot be maintained; it would establish a monopoly of the words 'home' and 'colonial." " It is expedient here to draw attention to a rule made some years ago 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.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. The Board of Trade has not any right or authority to make this rule, but it has been rigorously enforced, and accordingly there are comparatively few companies on the register having names which include the word referred to. However, the "Royal" Alhambra and the "Royal" Aquarium appear to have found favour with the authorities. Before finally settling on a name and getting documents printed, it is generally desirable to ascertain from the Registrar of Joint Stock Companies that no objection exists to the proposed name. Section 20, as above mentioned, p. 47, prohibits the registration of a second company with the same name as a subsisting company, "except in any case where such subsisting company is in course of being dissolved and testifies its consent in such manner as the registrar requires.” |