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Power of companies to change
Some dissentient shareholders filed a bill on behalf of themselves and the other shareholders, except the directors, for an injunction to prevent such borrowing, as being ultra vires: it was held, by Kindersley, V. C., that the directors had power to raise money in the manner proposed, and an injunction was refused. The Court of Appeal affirmed that decision; but Knight Bruce, L. J., doubted whether such borrowing was an act for which a special resolution was a sufficient authority. Bryon v. Metropolitan Saloon Omnibus Company, 3 De G. & J. 123; 4 Jur. N. S. 1362; 27 L. J., Ch. 685.
(c) As to passing special resolutions, see post, sect. 50 et (d) As to increase of capital, see post, sect. 34.
13. 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 (a).
(a) As to a special resolution, see sect. 50, post.
A company completely registered under 7 & 8 Vict. c. 110, could not alter its corporate name. Reg. v. Registrar of Joint Stock Companies, Re Sheffield R. & C. Ins. Co., 10 Q. B. 839. The 12th section of the 18 & 19 Vict. c. 133, enacted, that no alteration made by virtue of that act in the name of any company should prejudice or affect any right which previously to such alteration had accrued to such company, but every such company should be entitled to all such remedies as they would have been entitled to if no such alteration had been made it was held, that the rights of a company, which had obtained a certificate of complete registration with limited liability, against a surety on a bond entered into with them for
the faithful service of a clerk or an agent in respect of defalcations since the date of such certificate, remained unaffected by the change of name. Groux's Improved Soap Company v. Cooper, 8 C. B., N. S. 800.
Articles of Association (a).
to be pre
14. The memorandum of association may, in the Regulations case of a company limited by shares, and shall, in scribed by the case of a company limited by guarantee or un- articles of limited, be accompanied, when registered, by arti- association. cles of association 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 (b) 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 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.
(a) Examples of memorandums of association and articles of association are given in the second schedule of this act. (b) See post, sect. 22, p. 31.
15. In the case of a company limited by shares, Application if the memorandum of association is not accom- (A)(c). panied 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 sche
Stamp, signature and effect of articles of association (a).
dule hereto, the last-mentioned 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.
(c) See 19 & 20 Vict. c. 47, s. 9.
16. The articles of association shall be printed, they shall bear the same stamp as if they were contained 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 monies payable by any member to the company, in pursuance of the conditions and regulations 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 (b).
(a) This differs from the corresponding sect. 11 in 19 & 20 Vict. c. 47.
(b) A person who has taken shares in a joint stock company must be considered to have actually executed the articles of association of such company, and will be fixed with notice of its contents. New Brunswick and Canada Railway and Land Company (Limited) v. Conybeare, 31 L. J., Ch. 297; 1 De G., F. & J. 578.
17. The memorandum of association and the dum of asso- articles of association, if any, shall be delivered to the registrar of joint stock companies hereinafter association, mentioned, who shall retain and register the
with fees as
same (6). There shall be paid to the registrar in table by a company having a capital divided into shares, (B)(a). 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.
(a) See 19 & 20 Vict. c. 47, s. 12.
(b) The 35th section, post, p. 39, provides a remedy for the improper entry or omission of the entry in the register.
A plaintiff in an action in any of the superior courts may Mandamus. obtain a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested. 17 & 18 Vict. c. 125, s. 68; and see sects. 69-75, 77. The writ will not be granted to compel the specific performance of duties arising merely from a personal contract, as to enforce the execution of a lease from the plaintiff to the defendant in fulfilment of a contract between them. The act has not given to the Court of Queen's Bench the means of making the necessary inquiries, and appears to be confined to such duties as might have been enforced by the prerogative writ of mandamus. Benson v. Paull, 6 Ell. & Bl. But where a company is incorporated by charter or act of parliament, whose duty it is to keep a register of shareholders and to insert therein the names of the proprietors, a mandamus will lie to compel the performance of such duty. Morris v. Irish Land Company, 8 Ell. & Bl. 512. Mandamus has been granted to a judgment creditor to allow the inspection of the register of shareholders. Reg. v. Derbyshire, &c. Railway Company, 3 Ell. & Bl. 784.
A mandamus may be obtained to compel a company to make an entry of the probate of the will of a deceased proprietor, and to register the name and place of abode of the executor as a proprietor of shares in the company; Rex v. Worcester Canal Company, 1 M. & R. 529; to supply the full number of directors in case of vacancies; Thames Dock Company v. Rose, 4 Man. & G. 559; 2 Dowl. N. S. 104; to re
Effect of registration (a).
gister the transfer of shares; Reg. v. Londonderry, &c. Railway Company, 13 Q. B. 998; Reg. v. Wing, 16 Q. B. 645.
The deed of settlement of a company formed and completely registered under 7 & 8 Vict. c. 110, and afterwards under 19 & 20 Vict. c. 47, contained the following clause: "the books wherein the proceedings of the company are recorded shall be kept at the principal office of the company, and shall be open to the inspection of the shareholders every day of the year." The deed provided that separate books should be kept of the minutes of the proceedings at the general meetings of the shareholders, and of the minutes of the proceedings of the directors. A rule having been obtained for a mandamus to the company to grant to a shareholder inspection of the books of the minutes of the proceedings of the company it was held, that the clause gave shareholders only power to inspect the books of minutes of the proceedings at the general meetings, not the book of minutes of the proceedings of the directors. Reg. v. Mariquita Mining Company, Ell. & Ell. 289; 5 Jur. N. S. 725; 28 L. J., Q. B. 67.
Upon application by motion for any writ of mandamus in the Court of Queen's Bench, the rule may in all cases be absolute in the first instance if the court shall think fit, and may be made returnable forthwith, whether in term or in vacation; but time may be allowed to return it, by the court or a judge, either with or without terms. C. L. P. Act, 1854, 17 & 18 Vict. c. 125, s. 76. See further as to mandamus, Selw. N. P. tit. Mandamus; Shelford's Law of Railways, pp. 558-579, 3rd ed.
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 (b), 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 (c), but with such liability on the part of the members to contribute to the assets of the company in the event