Registrar may require evidence as to nature of company. On registration of banking company with limited liability, notice to be given to customers. Exemption of certain companies from payment of fees. Power to com name. of the reign of his late Majesty King William the Fourth, chapter sixty-two. 187. The registrar may require such evidence as he thinks necessary for the purpose of satisfying himself whether an existing company is or not a joint stock company as hereinbefore defined (a). (a) s. 181. 188. Every banking company (a) existing at the date of the passing of this Act which registers itself as a limited company shall, at least thirty days previous to obtaining a certificate of registration with limited liability, give notice that it is intended so to register the same to every person and partnership firm who have a banking account with the company, and such notice shall be given either by delivering the same to such person or firm, or leaving the same or putting the same into the post addressed to him or them at such address as shall have been last communicated or otherwise become known as his or their address to or by the company; and in case the company omits to give any such notice as is hereinbefore required to be given, then as between the company and the person or persons only who are for the time being interested in the account in respect of which such notice ought to have been given, and so far as respects such account and all variations thereof down to the time at which such notice shall be given, but not further or otherwise, the certificate of registration with limited liability shall have no operation (B). 189. No fees shall be charged in respect of the registration in pursuance of this part of this Act of any company in cases where such company is not registered as a limited company, or where previously to its being registered as a limited company the liability of the shareholders was limited by some other Act of Parliament or by letters patent. 190. Any company authorized by this part of this Act to pany to change register with limited liability shall, for the purpose of obtaining registration with limited liability, change its name, by adding thereto the word "limited." 191. Upon compliance with the requisitions in this part of this Act contained with respect to registration, and on pay ment of such fees, if any, as are payable under the Tables marked B. and C. in the first schedule hereto, the registrar shall certify under his hand that the company so applying for registration is incorporated as a company under this Act, and in the case of a limited company, that it is limited, and thereupon such company shall be incorporated, and shall have perpetual succession and a common seal, with power to hold lands (a); and any banking company in Scotland so incorporated shall be deemed and taken to be a bank incorporated, constituted, or established by or under Act of Parliament. (a) s. 18. Certificate of existing comregistration of panies." Certificate to be evidence of compliance 192. A certificate of incorporation given at any time to any company registered in pursuance of this part of this Act shall be conclusive evidence that all the requisitions herein with Aet. contained in respect of registration under this Act have been complied with (a), and that the company is authorized to be registered under this Act as a limited or unlimited company, as the case may be, and the date of incorporation mentioned in such certificate shall be deemed to be the date at which the company is incorporated under this Act (8). (a) But see s. 188, as to a banking company. (B) Conf. s. 18. property to 193. All such property, real and personal, including all Transfer of interests and rights in, to, and out of property, real and per- company. sonal, and including obligations and things in action, as may belong to or be vested in the company at the date of its registration under this Act, shall on registration pass to and vest in the company as incorporated under this Act for all the estate and interest of the company therein. under this Act not to affect obligations 194. The registration in pursuance of this part of this Act Registration of any company shall not affect or prejudice the liability of such company to have enforced against it, or its right to enforce, any debt or obligation incurred, or any contract entered into, by, to, with, or on behalf of such company previously to such registration. incurred pre viously to registration. This section has no application to the case of a pure contributory. Liability of The right of contribution is founded on the contract of partnership; contributory. Continuation of existing actions and suits. Liability of contributory. Effect of registration under Act. and if a previously unlimited company has been registered with limited liability, that contract is one which excludes all liability to contribute beyond the amount of the shares. This Act contains no provision similar to the 116th section of the Act of 1856, which saved the rights of creditors as against the company and the members of the company after registration. Therefore, where a company with unlimited liability was registered with limited liability, and subsequently ordered to be wound up, members, who had been members before the liability was limited, but whose shares were fully paid up, could not be made contributories in respect of debts incurred previous to the registration (a). As to members who have not become members of the registered company, see note to next section. 195. All such actions, suits, and other legal proceedings as may at the time of the registration of any company registered in pursuance of this part of this Act have been commenced by or against such company, or the public officer or any member thereof, may be continued in the same manner as if such registration had not taken place; nevertheless, execution shall not issue against the effects of any individual member of such company upon any judgment, decree, or order obtained in any action, suit, or proceeding so commenced as aforesaid; but in the event of the property and effects of the company being insufficient to satisfy such judgment, decree, or order, an order may be obtained for winding up the company. A shareholder in an unregistered company which, after he has parted with all his shares, is registered, remains liable for all debts incurred by the unregistered company while he was a shareholder in it, for he has never become a member of the registered company, and is therefore not within the case cited in the note to the last section (b). 196. When a company is registered under this Act in pursuance of this part thereof, all provisions contained in any Act of Parliament, deed of settlement, contract of copartnery, cost-book regulations, letters patent, or other instrument constituting or regulating the company, including, in the case of a company registered as a company limited by guarantee, the resolution declaring the amount of the guarantee, shall (a) Re Sheffield and Hallamshire, &c., Society, Fountain's Case, 6 N. R. 75; 11 Jur. (N.S.) 553; 13 W. R. 667; 34 L. J. (Ch.) 593. (b) Lanyon v. Smith, 3 B. & Sm. 938; 2 N. R. 118; Harvey v. Clough, 2 N. R. 204. be deemed to be conditions and regulations of the company, in the same manner and with the same incidents as if they were contained in a registered memorandum of association and articles of association; and all the provisions of this Act shall apply to such company and the members, contributories, and creditors thereof, in the same manner in all respects as if it had been formed under this Act, subject to the provisions following; (that is to say,) (1.) That Table A, in the first schedule to this Act shall not, unless adopted by special resolution (a), apply to any company registered under this Act in pursuance of this part thereof: (2.) That the provisions of this Act relating to the numbering of shares (B) shall not apply to any joint stock company whose shares are not numbered (7): (3.) That no company shall have power to alter any provision contained in any Act of Parliament relating to the company (7): (4.) That no company shall have power, without the sanction of the Board of Trade, to alter any provision contained in any letters patent relating to the company (7): (5.) That in the event of the company being wound up, every person shall be a contributory, in respect of the debts and liabilities of the company contracted prior to registration, who is liable, at law or in equity, to pay or contribute to the payment of any debt or liability of the company contracted prior to registration, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves in respect of any such debt or liability; or to pay or contribute to the payment of the costs, charges, and expenses of winding up the company so far as relates to such debts or liabilities as aforesaid; and every such contributory shall be liable to contribute to the assets of the company, in the course of the winding-up, all sums due from him in respect of any such liability as aforesaid (8); and in the event of the death, bankruptcy, (6) Power of Court to restrain further proceedings. or insolvency of any such contributory as last aforesaid, or marriage of any such contributory, being a female, the provisions herein before contained (e) with respect to the representatives, heirs, and devisees of deceased contributories, and with reference to the assignees of bankrupt or insolvent contributories, and to the husbands of married contributories, shall apply: (6.) That nothing herein contained shall authorize any company to alter any such provisions contained in any deed of settlement, contract of copartnery, cost book regulations, letters patent, or other instrument constituting or regulating the company, as would, if such company had originally been formed under this Act, have been contained in the memorandum of association (), and are not authorized to be altered. by this Act: But nothing herein contained shall derogate from any power of altering its constitution or regulations which may be vested in any company registering under this Act in pursuance of this part thereof by virtue of any Act of Parliament, deed of settlement, contract of copartnery, letters patent, or other instrument constituting or regulating the company. (a) s. 51. (7) Comp. Act, 1867, s. 47. (8) ss. 38, 200. The proviso at the end of this clause must be read as continuing to the company" any lawful power of altering, &c.," i.e., any power which can be exercised consistently with justice and with the objects of the Act. And therefore under clause 6 and this proviso a company, who have under their deed of settlement a power to reduce their capital, have, by reason of sects. 8 and 12, lost such power by registering under the Act (a). 197. The Court may, at any time after the presentation of a petition for winding up a company registered in pursuance of this part of this Act, and before making an order for winding up the company, upon the application by motion of any creditor of the company, restrain further proceedings in any action, suit, or legal proceeding against any contributory (a) Droitwich Salt Co. v. Curzon, L. R. 3 Ex. 35; and see s. 12. |