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Form of appeal.

Rule nisi

granted on appeal how

provided bail to pay the sum recovered and costs, or to pay costs where the appellant was plaintiff below, be given in like manner and to the same amount as bail in error, within eight days after the decision complained of or before execution delivered to the sheriff.

Sect. 39. The appeal hereinbefore mentioned shall be upon a case to be stated by the parties, and in case of difference to be settled by the court or a judge of the court appealed from, in which case shall be set forth so much of the pleadings, evidence and the ruling or judgment objected to as may be necessary to raise the question for the decision of the court of appeal.

Sect. 40. When the appeal is from the refusal of the court below to grant a rule to show cause, and the court of appeal disposed of. grant such rule, such rule shall be argued and disposed of in the court of appeal.

Judgment of

court of appeal.

Powers of court of

peal as to

costs and



Error upon

de novo.

Sect. 41. The court of appeal shall give such judgment as ought to have been given in the court below, and all such further proceedings may be taken thereupon as if the judgment had been given by the court in which the record originated.

Sect. 42. The court of appeal shall have power to adjudge of costs and to order restitution, and they shall have payment the same powers as the court of error in respect of awarding process and otherwise.

Sect. 43. Upon an award of a trial de novo by any one of award of trial the superior courts, or by the court of error, upon matter appearing upon the record, error may at once be brought, and if the judgment in such or any other case be affirmed in error, it shall be lawful for the court of error to adjudge costs to the defendant in error.

Payment of costs upon new trial on matter of


Sect. 44. When a new trial is granted on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the court shall otherwise order. Sect. 45. Upon motions founded upon affidavits it shall be Affidavits on lawful for either party, with leave of the court or a judge, to new matter. make affidavits in answer to the affidavits of the opposite party upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits.

Court of It is to be observed, that by the Chancery Regulation Act, Chancery to 1862, 25 & 26 Vict. c. 42, s. 1, in all cases in which relief or determine legal rights. remedy, within the jurisdiction of the Courts of Chancery (which includes the Court of Chancery of the county palatine of Lancaster) respectively, is or shall be sought in any cause or matter instituted or pending in either of the said courts, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or fact cognizable in a court of common law, on the determination of which the title to such relief or remedy

depends, shall be determined by or before the same courts. See Baylis v. Watkins, 8 Jur. N. S. 1165; Copeland v. Webb, 11 W. R. 134; Re Hooper, Ib. 130. The 2nd section provides that where questions of fact may be more conveniently tried at assizes, issues may be directed.


36. Whenever any order has been made rectifying Notice to the register, in the case of a company hereby re- registrar of quired to send a list of its members to the registrar, of register(z). the court shall, by its order, direct that due notice of such rectification be given to the registrar.

(2) This is new.

37. The register of members shall be primâ facie Register to evidence of any matters by this act directed or authorized to be inserted therein (b).

(a) The words primâ facie are not contained in the 26th section, 19 & 20 Vict. c. 47.

(b) See sect. 25, ante, pp. 32.

Liability of Members.

be evidence (a).

past mem

38. In the event of a company formed under this Liability of act being wound up, every present and past member present and of such company shall be liable (d) to contribute to bers of the assets of the company to an amount sufficient company (c). for payment of the debts and liabilities of the company, and the costs, charges and expenses of the winding-up, and for the payment of such sums as may be required for the adjustment of the rights of the contributories amongst themselves, with the qualifications following, (that is to say,) (1.) No past member shall be liable to contribute to the assets of the company if he has ceased to be a member for a period of one year or upwards prior to the commencement of the winding-up:

(2.) No past member shall be liable to contribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member (e):

(3.) No past member shall be liable to contribute to the assets of the company unless it appears to the court that the existing mem

bers are unable to satisfy the contributions required to be made by them in pursuance of this act :

(4.) In the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member: (5.) In the case of a company limited by guarantee, no contribution shall be required from any member exceeding the amount of the undertaking entered into on his behalf by the memorandum of association (ƒ): (6.) Nothing in this act contained shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members upon any such policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of such policy or contract (g):

(7.) No sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise, shall be deemed to be a debt of the company, payable to such member in a case of competition between himself and any other creditor not being a member of the company; but any such sum may be taken into account, for the purposes of the final adjustment of the rights of the contributories amongst themselves (h).

(c) This is a new provision. See 19 & 20 Vict. c. 47, ss. 62, 63.

(d) See sect. 7, ante, p. 13.

(e) See post, table A. pl. 9, by which a transferor of shares is to continue a holder of such shares until the name of the transferee shall be entered in the register book.

(f) See ante, sect. 9, p. 17.

The unlimited liability of a company under the 25th section of 7 & 8 Vict. c. 110, might be restricted by express provision. (g) A policy of insurance duly executed by three directors

of an insurance company contained a provision that the policy should not be construed to render liable the proprietors of the company beyond the amount of their respective shares, but that the capital stock of the company should alone be liable to answer all claims in respect of the policy. The plaintiff having obtained judgment against the company: it was held, that by the terms of the policy the plaintiff was precluded from taking legal proceedings against the individual subscribers, and could not therefore issue execution against an individual shareholder under 7 & 8 Vict. c. 110, s. 68. Halkett v. Merchant Traders' Ship Loan and Insurance Association, L. J. 1850, Q. B. 59; 13 Q. B. 960; Hassell v. Same, Exch. 525; Durham's Case, 4 Kay & J. 517; Re Athenæum Life Society, Ex parte Prince of Wales Life, &c. Assurance Company, 1 Johns. 80; 5 Jur. N. S. 558; 3 De G. & J. 558; see Talbot's Case, 5 De G. & Sm. 386; Evans v. Coventry, 2 Jur. N. S. 557.

(h) See post, sect. 101, as to the power of the court to order payment of debts by a contributory.



Provisions for Protection of Creditors.

office of company (a).

39. Every company under this act shall have a Registered registered office to which all communications and notices may be addressed: if any company under this act carries on business without having such an office, it shall incur a penalty not exceeding five pounds for every day during which business is so carried on (b).

(a) See 19 & 20 Vict. c. 47, s. 28.

(b) In this and the 19th section a penalty is imposed on the company alone, but in sects. 25, 27, 32, 34, a penalty is imposed on the directors. The mode of recovering penalties is prescribed by the 65th section, post.

situation of

40. Notice of the situation of such registered Notice of office, and of any change therein, shall be given to registered the registrar, and recorded by him until such office (d). notice is given the company shall not be deemed to

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have complied with the provisions of this act with respect to having a registered office.

(d) See 19 & 20 Vict. c. 47, s. 29.

41. Every limited company under this act, whether limited by shares or by guarantee, shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the company is carried on, in a conspicuous position, in letters easily legible, and shall have its name engraven in legible characters on its seal, and shall have its name mentioned in legible characters in all notices, advertisements and other official publications of such company, and in all bills of exchange, promissory notes, indorsements, cheques and orders for money or goods purporting to be signed by or on behalf of such company, and in all bills of parcels, invoices, receipts and letters of credit of the company.

(a) See 19 & 20 Vict. c. 47, s. 30.

42. If any limited company under this act does not paint or affix, and keep painted or affixed, its name in manner directed by this act, it shall be liable to a penalty not exceeding five pounds for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall be liable to the like penalty; and if any director, manager or officer of such company, or any person on its behalf, uses or authorizes the use of any seal purporting to be a seal of the company whereon its name is not so engraven as aforesaid, or issues or authorizes the issue of any notice, advertisement or other official publication of such company, or signs or authorizes to be signed on behalf of such company any bill of exchange (c), promissory note, indorsement, cheque, order for money or goods, or issues or authorizes to be issued any bill of parcels, invoice, receipt or

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