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BILL (LORDs). PosT OFFICE CONSOLIDATION BILL (LORDs). STATUTE LAW REVISION BILL (LORDs).
Clause 39, page 20, line 3, leave out, “either in discharge of the amount of a call payable in
Clause 41, page 22, leave out lines 6, 7, 8, 9 and 10, and substitute-
“(3) Where any alteration has been made under this section, in the memorandum of a
ance with the alteration.”
Clause 45, page 23, line 32, after “order” insert “ or within such further time as the court
Clause 50, page 25, line 34, leave out, “and may make such order as to costs.
Clause 141, page 78, line 25, leave out “ or division.”
Clause 153, page 85, line 22, leave out “subsection (3).”
Clause 166, page 91, line 22, after “unlimited ” insert “or to his estate.”
Clause 178, page 95, line 39, after “contributory” insert “ or debtor.”
Clause 185, page 98, line 35, leave out “its affairs are wound up,” and insert “it is
Clause 193, page 102, line 33, after “1845,” insert “or, in the case of a winding-up in
Clause 198, page 104, line 23, after “creditor” insert “ or contributory.”
line 24 after “opinion ” insert “in the case of an application by a
line 24, after “creditor” insert “ or in the case of an application by a
Clause 203, page 105, line 19, after “court’” insert “ or any liquidator continued under the
Clause 241 (3), page 123, line 15, after “except" insert (“ in the case of a winding-up by
Clause 284, page 148, line 32, after “licence” insert, “ or revocation of licence.”
Clause 285, page 150, line 25, leave out from beginning of line to “Director” in line 2 of
Fourth Schedule, page 186, leave out the Fourth Schedule.
The said Report is agreed to.
Ordered, That the Lord in the Chair do make the Report to the House, and that Mr.
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Mi NUTES OF EVIDENCE:
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Die Mercurii, 8° Julii, 1908.
THE LORD CHANCELLOR IN THE CHAIR.
Mr. G. S. BARNEs and Mr. W. M. GRAHAM-HARRIsoN are called in, and Examined.
1. (To Mr. Harrison.) I think you compiled the "Companies (Consolidation) Bill, which is before the Committee ?—I compiled the Bill. 2. I had better ask you, in the first instance, is this Bill a Consolidation Bill merely?—To the best of my belief it represents exactly the existing law, subject to the observations which I have made in the printed memorandum, which is before the Committee. 3. We will take the clauses one by one, in order. Nothing arises, I think, on Clause 1. On Clause 2, you say in the memorandum that “the language of the existing Acts has been modified so as to distinguish clearly at the outset the various descriptions of companies, but there has been no alteration of substance ’’?—That 1S SO. 4. Is there anything on Clause 3 7–There is only a note to show that the word “share * has been inserted before the word “capital” in paragraph (1) (v.) of this clause, and a similar addition has been made throughout the Bill where share capital is meant. 5. I take it that we should all agree that “share capital” is right there. Then as regards Clause 4, you say in the Memorandum that “the provision in 4 (1) (IV.) is not in the enactments reproduced, but has been inserted on the suggestion of Lord Justice Buckley. Technically, this is no doubt an amendment of the law, but the Lord Justice suggests that the absence of such a provision in the Act of 1862 was probably an oversight " ?—Yes. 6. This is a Consolidation Bill, and for my part, I am rather afraid that such an amendment as that is going beyond what we ought to put in 2–(Mr. Barnes.) Would it not be possible for the Committee to insert amendments which are of a tidying nature, if I may so describe it 2
7. If they were only verbal, and there were no change in the substance, I should think that might be done, but I should rather hesitate to accept the word “tidying ”?—Technically, this is an amendment, but it is suggested that its absence was an oversight.
(After some discussion.)
8. (To Mr. Harrison.) I should have thought this provision was unnecessary, and I gather that to be the opinion of the Committee ?—I only put it in, in deference to the authority of Lord Justice Buckley, who made the suggestion. It merely makes the statements to be contained in the Memorandum of the different sorts of companies, that is to say, a company limited by shares, and a company limited by guarantee— the same.
[Chairman.] We will strike it out.
ON CLAUSE 5.
9. Have you anything so say on Clause 5?– Paragraph 2 of this clause represents the existing law exactly, but in the notes attention is drawn to the fact that it has been suggested that perhaps “memorandum ” in the last line of Section 14 of the Act of 1862 is a mistake for “articles,” and I thought perhaps the Committee might
wish to put it straight.
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• * Mr. BARNES and Mr. HARRISON.
8 July, 1908.]... . . . ." Chairman—continued. and shall write opposite to his name in the Memorandum of Association the number of shares he takes.” Why do you suppose that that was intended to be “Articles " ?—Section 14 of the Act of 1862 is headed by the words “Articles of Association.” And also the form which is scheduled to the Act of 1862, . (Form D) contains this statement, not in the Memorandum, but in a specimen form of Articles. 11. We have got on for 46 years with this Section 14 of the Act of 1862 without any mischief arising. If it is a mistake, it has never done any harm, or been noticed, apparently ?—I have got no feeling in favour of altering it. I have only brought forward the suggestions that people have made to me.
15. Then if that is the rule why do you want any difference 2—Under the Bill the word “Court’” means the Court having jurisdiction to wind up a company, and the Court having jurisdiction to wind up a company in England is the whole of the High Court, so that the word “Court’” in the Bill is rather wider than merely the Chancery Division and the winding-up Judge.
16. It amounts to this, as I understand, that according to the present law the Court means merely the Courts of Chancery and the winding-up Judge?—The Chancery Division and the windingup Judge.
17. Whereas the word “Court ’’ in this Bill means any Court having jurisdiction to wind up a company ?—That is so.
18. That might be larger than the existing meaning, but then in England a Rule of Court may prescribe which shall be the Judge or division having the jurisdiction—that is the way it stands : —Yes.
19. The Chancery Division is only a Division of the High Court?–Yes.
20. I think if there is any alteration here it is merely giving effect to the law as it stands combining the Rule and the Act together; so I think that may stand. Then with regard to the second paragraph of Subclause (6) of this clause, you say that it is new, but it does not (in the opinion of Lord Justice Buckley) effect any alteration of the law 2–That is so—that is the second paragraph on page 6: “The Court may by Order at any time extend the time for delivery of documents to the Registrar under this section for such period as the Court may think proper.”
21. Lord Justice Buckley thinks that that is necessary in order to give effect to the decision in the Reversionary Interest Society?—That is so.
22. I think that is really nothing but consolidation, and it may safely be inserted. Is there anything else you wish to draw attention to in Clause 9 2–No.
ON CLAUSE 10.
23. I see a question arises on Clause 10 ?–Yes. On this clause there arises the difficulty I have pointed out in the Note. It is explained there: “As regards companies limited by guarantee in view of the provisions of Section 27 of the Companies’ Act, 1900, reproduced in Clause 4. (2), which require a statement as to the amount of share capital to be inserted in the Memorandum it seems no longer necessary to require such a statement to be inserted also in the Articles and on the suggestion of Lord Justice Buckley the provision to that effect in Section 14 of the Act of 1862 has been treated as impliedly repealed and not been reproduced in the Bill.”
24. I think this is consequential. I think we had better leave it and not treat things as impliedly repealed?—If your Lordship takes that view the same thing will have to be stated twice over—once in the Memorandum, and again in the Articles.
25. If that is the effect of the law as it now is, it may be inconvenient, but why should it not be continued ?–I only pointed out that that would be the effect.
26. I quite appreciate that, but why, from the point of view of consolidation, should it not be so ?–There is no difficulty about it from the point of view of consolidation.
(After some discussion.) 27. Then
31. As regards Clause 14, you think that the Conveyancing Act makes the insertion of the words, “his heirs, executors and administrators” unnecessary, and they have therefore been omitted ?–Yes. 32. How do the words occur in the old Act— is it the Act of 1862?–Yes. 33. How do the words occur there ?—The words in the old Act are: “It shall, when registered, 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 the Memorandum contained on the part of himself, his heirs, executors and administrators a covenant to observe all the conditions of such Memorandum.” 34. What harm did it do to leave the words there. The suggestion is that since the Conveyancing Act it has become unnecessary to insert those words?—It was thought that the words were unnecessary, and it was no use inserting words that were clearly unnecessary in the Bill.
(After some discussion.)
[Chairman.] We will keep to the words of the Act.
ON CLAUSE 21.
35. As regards Subclause (2) of Clause 21, I observe that the words “Any company limited by guarantee” have been substituted for “a company whether limited by guarantee or otherwise.” That also improves the wording of the Act. That is merely giving the effect of the Act 2 —It appears impossible to put any meaning on the words of the Act as they stand. The words of the Act of 1900 appear to be wrong.
of the section is confined to companies limited by guarantee, and therefore the words “whether limited by guarantee or otherwise ’’ appear to have no meaning.
37. The section is headed, “Companies limited by guarantee” 2–Yes.
38. This is the note in Buckley: “The words ‘whether limited by guarantee or otherwise’ in Subsection 2 are puzzling. The provisions thereby referred to are for the purposes of this section to be treated as a provision for a capital divided into shares. Nothing in the section relating to a capital divided into shares has anything to do with companies other than those limited by guarantee,” so that the suggestion is that the words “ or otherwise ’’ are unnecessary 2–Yes.
[Chairman.] For myself I have some doubt whether the words are without meaning, and I should be disposed to leave the words as they are in the Act of 1900; they will do no harm. I gather that to be the sense of the Committee. Then we will leave the words there as they stand in the Act of 1900.
ON CLAUSE 26.
39. As regards Clause 26, it is said in the note that the form of return “was altered under Section 71 by order of the Board of Trade gazetted 20th August, 1901. The requirements of the clause have been adapted to the form now in use ’’ 2–Yes.
40. What struck me about this is that this is putting in the form of an Act of Parliament forms that were settled by an order of the Board of Trade, and if you make these forms in an Act of Parliament you ought to keep alive the power of the Board of Trade to alter them from time to time, which it would have under Section 71. This would be stereotyping it. Whereas as they have operated hitherto they have operated as something made by the Board of Trade under a statute. This is making them into a statute of themselves. Under Section 72 there is a power to the Board of Trade to alter them—is that not so ?–(Mr. Barnes.) Yes; Section 71 is a general power to the Board of Trade to alter the form from time to time.
41. Is that power retained under the Bill ?— Yes. 42. In what clause ?–Clause 119.
43. But that clause does not give the Board of Trade power to alter the section which they have got now ; that is only altering the forms in the schedule, but not in the section. You are now starting, not from an Act, but from an order of the Board of Trade made under the Act 7– Under that clause the Board of Trade may alter 8 July, 1908.]
36. Section 27 of the Act of 1900 is confined to companies limited by guarantee?—Yes, the whole
the forms in the schedule.
Mr. BARNEs and Mr. HARRISON.
44. (To Mr. Harrison.) What do you say to that ; is there power retained still in the draft Bill to alter the form of the return in future ?—There is power to alter the form of the return itself, but not to alter the provisions of this clause. 45. Does this clause stereotype the legislation, or does it stereotype forms confirmed by the Board of Trade 2–It stereotypes the form which was made under statutory powers by the Board of Trade. 46. I do not think that is our business 2—If I may say so, I think it is not right, but when I originally took up this work there was a draft in existence, which had been prepared by a very distinguished person, and I left that in out of respect for his work. 47. I quite appreciate that. I suggest that our duty in a Consolidation Bill is to stereotype Acts of Parliament, and not to stereotype a form made under Act of Parliament, and that the draft Bill should be altered so as to comply simply with the Act of Parliament. I gather that is the sense of the Committee. Then paragraph (m) incorporates the definition of “Director ’’ contained in Section 30 of the Act of 1900 ?—Yes, that is merely explanatory. 48. Then in Subclause (4), I see it says that what is to be signed is a copy and not the original list and summary ?—Yes, that is following the existing practice. Under Section 19, Subsection (2), of the Act of 1900, it is provided that “The list and summary mentioned in the said Section 26 must be signed by the manager or by the secretary of the Company.” What is brought to the Registrar is not the original list and summary, but a copy, and it is that copy which is always signed, and all that is done here is to make it clear that it is the copy that is brought and not the original which must be signed.
49. In this case the original list is the share register of the company itself, and that could not be delivered to the Registrar ?–No.
50. Where is the direction that it should be forwarded by the manager to the Registrar ?– That is in the last words of Section 26 of the Act of 1862.
51. If that is the case, the list and summary mentioned must be signed. It does not say that the list and summary which is to be taken in is to be signed; it says the list and summary mentioned in Section 26. Is there any difficulty in the list and summary being signed ?–(Mr. Barnes.) It is very desirable that the document that is put upon the Registrar's file should be authenticated in some way.
52. That is so by the law as existing, but taking the Bill before us, it would require the copy to be signed and not the original, would it not ?—The original, I think, is in the books of the Company; it forms part of the register.
53. The original would have to remain in the office 2–Yes.
54. That is what is done regularly under the Act, and the section admits of it 2–Yes. (Chairman.] Then I think we might pass that.
ON CLAUSE 28.
55. (To Mr. Harrison.) Clause 28 produces the existing section, does it not ?—Yes, Clause 28 is reproduced exactly from the existing section.
56. But in the memorandum, I see you make a suggestion ?–Other persons have made the suggestion which is mentioned there.
57. What do you think about it yourself 2– I think it would make absolutely no alteration in the law and would be more logical.
58. Would there be any difficulty in construing the old words, if you left them as they are ?–I do not think there would be any difficulty in keeping the section as it is.
59. If that be so, I think we had better stand by the old words 2—I do not think there would be any difficulty.
(After a short discussion.)
[Chairman.] Then we will leave the section as it is in the Act.
ON CLAUSE 30.
60. As regards Clause 30, I see there are one or two suggestions in the notes. The first is to add the words “and wilfully,” after “knowingly,” in Subclause 3. That is a penal clause, and provides that “every director and manager of the company who knowingly authorises or permits the refusal shall be liable to the like penalty.” The suggestion is to put in “and wilfully,” after “knowingly.” It has been pointed out that elsewhere throughout the Acts reproduced, in corresponding places the words are “knowingly and wilfully” 2–Yes.
Lord Stanley of Alderley.
61. For the same offence 2–No, not for the same offence, but for similar offences. It is only a question of making the language uniform.
62. It seems to me that we should be there making an alteration of the law; we should be introducing a new element. We will not introduce the words “and wilfully,” but we will leave it as it is. Then the next point mentioned in the Memorandum is that the words “Sitting in Chambers,” which occur in the Act of 1862,
have been omitted in Subclause (3) 2–Yes. 63. It seems to me that the Act as it originally stood was giving extra facilities; I think the presence of the words “Sitting in Chambers” might be necessary, because otherwise a Judge in