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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
of the same being wound up as is hereinafter mentioned (d); 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 (e).
(a) See 19 & 20 Vict. c. 47, s. 13. 20 & 21 Vict. c. 14, s. 4. Certificate If a company is not authorized to be registered, Turner, L. J., considered it quite clear that the certificate of registration could be of no avail. Re Northumberland and Durham District Banking Company, 2 De G. & J. 371. It was decided that the certificate of the registrar of friendly societies was conclusive evidence of the society being legal. Pare v. Clegg, 7 Jur. N. S. 1136.
(b) A person having paid a deposit applied by letter for Who are and thereby accepted shares in a company, but before any shareholders. acceptance of his application or allotment of shares to him withdrew his application, he was held not to have been a shareholder in the company. Re Cardiff and Caerphilly Iron Company, Re Gledhill, Ex parte Graham, 7 Jur. N. S. 981; 30 L. J., Bank. 42, 861.
A person having received a prospectus of a company, with a printed form of application for shares, filled it up and signed it, requesting an allotment to him of a certain number of shares, and agreeing to accept such shares and to pay the future calls. He paid a deposit on these shares to the company's bankers, and received a receipt for the same. Shares were allotted to him, and a copy of the memorandum of association, with articles of association indorsed, were subsequently sent by the company to the applicant, with a form appended to be filled up by him, stating that he accepted the shares in the company and consented to be registered as a shareholder. He did not return or sign that form, but subsequently applied for interest warrants and share certificates, which were not delivered to him by reason of his omission to return the form of acceptance filled up and signed. His name, however, was entered in the register by the company, and notice of calls was given to him: it was held, in an action against him as a shareholder for calls, that, as he had not signed the written form of acceptance of shares sent him by the company for that purpose, he could not be said to have accepted the shares; for the 19 & 20 Vict. c. 47, schedule (B.) pl. 1; see post, provides that "no person shall be deemed to have accepted any share in the company unless he has testified his acceptance thereof by writing under his hand in such form as the company from time to time directs." The applicant consequently had not become a shareholder, as under sect. 19 of the 19 & 20 Vict. c. 47, acceptance of shares is necessary to constitute him a shareholder, and therefore he was not
formance of agreement to
liable to calls. New Brunswick and Canada Railway and Land Company v. Muggeridge, 4 H. & N. 160; 5 Jur. N. S. 1131; 28 L. J., Exch. 365, Exch. Cham.
It was questioned whether the Court of Chancery will decree specific performance of an agreement to take shares in a comtake shares. pany which were allotted on application. A shareholder in a public company applied to the directors for an allotment of new shares which they were authorized to issue, and signed an undertaking to accept the same or any less number that might be allotted to him, to pay the calls thereon when due, and to sign the articles of association when required. The shares applied for were duly allotted, and in the notification of allotment he was informed that the articles of association must be signed by him, and in default thereof the shares and deposit would be forfeited to the company. The articles of association contained no clause authorizing the forfeiture of shares for such a cause. The allottee having refused to sign the articles of association or to pay the calls which were from time to time made upon the shares, the company filed a bill for specific performance of the undertaking contained in his application for the shares: but it was held, on appeal, that the contract had been varied by the notification of the allotment, and that the bill could not be sustained. The company having delayed filing their bill for two years after the allottee's refusal to sign the articles: it was held, on appeal, that such delay was not in itself fatal to the plaintiff's case. Oriental Steam Company (Limited) v. Briggs, 31 L. J., Ch. 241. Lord Westbury, L. C., observed, the letter of application for shares by the defendant, who was a shareholder, must be taken as an application for shares to which he was not entitled in his character of shareholder. He undertook to accept them or any less number, to pay the calls thereon, and to sign the articles of association. If this had been followed by a simple acceptance there would have been a complete contract. The contract alleged by the company, and the performance of which was desired, was constituted of the proposal contained in the letter and of the answer of the secretary, which was alleged to be an acceptance thereof. That answer informed him that 150 shares had been allotted to him in compliance with his request, and proceeded thus:-" The bankers' receipt must be exchanged, when required, for a share certificate; then the memorandum and articles of association must be signed, and in default thereof (i. e., in default of all or any of the conditions that had been mentioned) the shares and deposit would be forfeited to the company." There had been a great deal of ingenious argument on the interpretation of this letter. First, it was said the last paragraph was an unauthorized addition. His Lordship could not listen to an argument of that kind. If the individual to whom a proposition was made returned an answer by the hand of an
agent, and the agent in that answer embodied, whether with or without authority, certain things accompanying the acceptance which were not warranted by the original proposal, that individual was not at liberty to say that what the agent had added was "not authorized by my instructions, and therefore his acceptance, which was by my direction, must be taken free and liberated from the addition which he had thought proper to make." It was impossible for the person to whom the letter of acceptance was addressed to know how much was authorized and how much was unauthorized, and therefore the whole letter must be taken by the individual who brought forward that letter as the acceptance of a proposal entitling him to the benefit of the contract. Then it was said that what was added to the letter was nothing more than an expression of what the law itself annexed, and therefore it might be brought under the common maxim-Expressio eorum quæ tacite insunt nihil operatur. (See Broom's Maxims, pp. 596, 598, 677, 3rd ed.) That interpretation of the letter would not be accepted; there was no law which would have authorized this addition to be made to a simple contract, viz., that in default of the thing specified being done the shares and deposit would be forfeited to the company. Then it was said that this was nothing more than a mere admonitory or friendly warning to General Briggs, and must not be considered as prejudicing or derogating from the antecedent simple acceptance. The same observation applied to that. It was impossible to say this was an unqualified simple acceptance; but it was extremely desirable, especially in this Court, where such contracts were spelt repeatedly out of letters, to adhere strictly to the rule of the court, that whoever brings forward a contract as constituted of a proposal on one side and an acceptance on the other should show that the acceptance was prompt, immediately given, unqualified, simple and unconditional. His Lordship could not attribute these qualities to this contract, as it was called, and could not therefore hold that it was a binding engagement, which, either in this or any other court, would amount to a binding contract on which an action would be maintained, or for the performance of which his Lordship would be bound to make a decree. The Oriental Inland Steam Company v. Briggs, 31 L.J., Ch. 246.
(c) By common law a corporation had the capacity to pur- Capacity of chase lands for themselves and their successors. Litt. R. 49, corporation 112, 114; 10 Rep. 30 b; 1 Bl. Comm. 478; see post, s. 21, to hold lands. p. 30; Vigers v. Dean, &c. of St. Paul's, L. J. 1849; Q. B. 103. The restrictions on their holding of lands without licence from the crown was imposed by a variety of statutes. See Shelford on Mortmain, 1-21. The power to hold lands given by this and the 191st section, leaves it in doubt whether or not companies incorporated under this act can hold lands without a licence in mortmain. It has been usual in acts of
Power to hold lands under previous acts.
Liability of body corporate.
Copies of memorandum
parliament giving corporations a power to acquire and hold lands to dispense with a licence in mortmain. See 25 & 26 Vict. c. 61, s. 9, pl. 2.
By the 25th section, 7 & 8 Vict. c. 110, a company completely registered was empowered to purchase lands and hereditaments in the name of the company or of the trustees or trustee thereof, as places of occupation for the business of the company, and also (but nevertheless with a licence general or special for that purpose to be granted by the board of trade first obtained) such other lands and hereditaments as the nature of the business of the company might require.
Doubts having arisen as to the meaning of that provision, it was declared by 10 & 11 Vict. c. 78, s. 1, that any company completely registered, being desirous of holding lands, might apply to the board of trade for a licence, who were empowered, if they thought fit, to grant the same.
As to licences to joint-stock companies to hold land in pursuance of last statute, see parliamentary paper, 16th February, 1852, No. 24.
The members or shareholders of a company incorporated under the 19 & 20 Vict. c. 47 and 20 & 21 Vict. c. 14, have no such freehold interest, legal or equitable, in lands held by the corporation as to entitle them to be registered as electors, their rights being confined to a proportionate share in the profits of the company. Bulmer v. Norris, 9 C. B., N. S. 19; 1 K. & G. 321; 7 Jur. N. S. 342; 30 L. J., C. P. 25. (d) See sects. 75, 102, post.
A company formed under this act becomes a body corporate, so that no liability attaches on its members to the creditors of the corporation, whether the company is in operation or being wound up. The creditors' remedy is against the property of the corporation. The liability of the members of a company being wound up will be found in the 38th section, post, pp. 45, 46.
(e) In an action against a company registered under the 19 & 20 Vict. c. 47, for breach of contract to employ and pay for services, the certificates for shares issued under its seal are sufficient evidence as against the company that it is registered. Mostyn v. Calcott Hall Mining Company, 1 F. & F. 334, Willes.
Under resolutions before registration, evidence, if ratified after registration, even though relating to fixtures, the company having taken to and partly paid for them, and resolutions, of which the result had been communicated to the plaintiff, were held evidence of an agreement, but not requiring a stamp. Ib.
19. A copy of the memorandum of association, and articles having annexed thereto the articles of association, to be given if any, shall be forwarded to every member, at his