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8 July, 1908.]

Chairman-continued.

Mr. BARNES and Mr. HARRISON.

Mr. Beale continued.

the provisions reproduced apply to extraordinary as well as special resolutions.

146. What you have tried to do is to give effect to what you believe to be the result of the provisions reproduced ?—Yes.

say

147. It must be taken one way or another, and you have taken it according to what you think to be the intention of the Act ?—Yes. 148. Then I see you also in the notes," The drafting of Section 25 of the Act of 1907, reproduced in Subclause (4), has been generally pronounced unsatisfactory, and the provision has accordingly been redrafted, but there is no change except in language "?-Yes, that section was terribly pulled about in Committee last year, and if your Lordship will look at that I think you will see it is very curious as it stands.

149. As it stands in the Act of 1907 the drafting is certainly most unsatisfactory-it is very difficult to know what it means. I will read it: "A poll may be demanded at a meeting of a company at which a special resolution is submitted to be passed or confirmed under Section 51 of the Companies Act, 1862, if demanded by three persons for the time being entitled according to the articles of the company to vote unless the articles of the company require a demand by such number of such persons not in any case exceeding five as may be specified in the articles." I agree that it is not satisfactory, but had we not better leave it as it is ?-We have tried to reproduce the effect of it.

Mr. Beale.

150. I think you had better leave it alone, because, if you look at the attempt to redraft it here, the result is this: if the articles require seven, three would be enough, but if the articles require four, then it would be four ?-That is the effect of the law.

[Chairman.] If that is so, I think we certainly had better leave it in its old words.

ON CLAUSE 71.

[Chairman.] With regard to Clause 71, I see in the notes that the words, "all appointments of directors or managers shall be deemed to be valid," which appear in Section 67 of the Act of 1862, are not reproduced. I think we had better leave that as it is in the Act of 1862.

ON CLAUSE 72.
Chairman.

151. With regard to Clause 72, I see from the note the words "by or on behalf of a company or in relation to an intended company," have been substituted for the words, "by or on behalf of the Company"?—Yes.

[Chairman.] I think it would be better to leave the original words.

Mr. Beale.

[Continued.

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157. On Clause 81 the notes say that words' whether the prospectus. subsequently in the introductory words of Subclause (1) now occur in Subsection (4) of Section 10 of the Act of 1900, and have been inserted in their present position on the suggestion of Lord Justice This will settle Buckley," and then it is said, " the doubt which has been felt whether Section 10 of the Act of 1900 applies to a prospectus issued in relation to an intended company before its formation," and reference is made to page 781 of Buckley?—Yes.

Mr. Beale.

158. I do not see that putting the words mentioned in the note in a different place clears up the doubt, and I think it is a decided alteration in the law?-As is stated in the note, it was done on the suggestion of Lord Justice Buckley.

Chairman.

159. Do you think it is an alteration of the law?-I did not think it was.

160. It is making certain something about which there might be possible doubt ?—Yes.

Mr. Beale.

152. What is proposed to put in is, that this should apply, "in relation to an intended company," and yet it is provided lower down that the person must either have signed the memorandum or have entered into a contract with that company, 161. I do not think it does make it certain ? which would be impossible until there is a company It was suggested that this would settle the doubt.

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BILL (LORDS). POST OFFICE CONSOLIDATION BILL (LORDS). STATUTE LAW REVISION BILL (LORDS). 11 Mr. BARNES and Mr. HARRISON.

8 July, 1908.]

[Continued.

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164. I see the opening words of the clause have been redrafted; why was that done?-There was a doubt on the clause in its present form as to whether the word " prospectus" in Section 1 of the Act of 1907 did include a prospectus issued in relation to the formation of an intended company It is rather the same point as we have just had. 165. I think we had better leave it to the

Courts of Law to settle that. The Act was only passed last year. We had better revert to the wording as it was in the Act, even if there be a doubt. Is there anything on Clause 84 ?-There is no alteration in Clause 84.

ON CLAUSE 85.

Chairman.

166. In regard to Clause 85, this again is a question of wording. It is only an Act of last year, and I think we had better leave the old words as they were. Then it is also suggested that the words “in cash" ought to be added at the end of Subclause (1). There always used to be a question about that. I suppose that is relating to the payment of shares in cash. The words are not in the section, I understand?-No, the words are not added in the Bill; it is only a suggestion that they might be added.

[Chairman.] Then we will let the words stand in the clause as they stand in the Act.

ON CLAUSE 88.

Chairman.

167. Then as regards Clause 88, I see there is a note. That means that there is really no alteration in Clause 88, does it not?-There is not any alteration.

168. But of course you have got to make some little change in the wording, because of the variety of expressions in the different Acts ?-That is so. [Chairman.] We sanction that.

ON CLAUSE 93. Chairman.

169. As regards Clause 93, I see the words "for the purposes of this section" have been inserted in Subclause (1) iv. ; does that alter the law at all?-I do not think it alters the law; I do not myself think it is necessary to insert the words, but someone wanted them in.

170. Then do not let us have them inserted if they are not necessary?-There is another point on Clause 93 which is referred to in the second

Chairman-continued.

paragraph of the notes. I think that is a suggestion which might be put down for consideration in the list which Lord Balfour proposed. [Chairman.] I will put that in the schedule for consideration.

ON CLAUSE 100.

Chairman.

171. What have you to say with regard to Clause 100?-As regards Clause 100, we find the greatest difficulty in reproducing the law, because we cannot make out what it is at all. We do not know how to reproduce it exactly; it is almost impossible to reproduce it without putting some construction upon the sections of two Acts of Parliament. Perhaps I may refer you to the sections.

172. If you please?-The sections are Section 18 of the Act of 1900 and Subsection (6) of Section 10 of the Act of 1907. They appear to overlap, but the exact position of the law is not quite clear.

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176. The Act of 1900 is referred to in the Act of 1907, and they are to be read together?—Yes.

177. If they are to be read together, what is the difficulty of placing the one after the other, and saying these two sections shall be read together?-The difficulty appears to be that you will get (I do not know whether it is possible Parliament can be supposed to have intended such a thing) two quite different penalties for the same offence.

178. Is not that what has been enacted? It is a mistake of the Legislature. Is not this rather a case to be put in the schedule which Lord Balfour suggests ?-Yes, I think it is.

179. But not for alteration in this Bill. Could you not put the two sections the one after the other, and say that they shall be read together? -Yes.

180. That would be the literal way of doing it? -Yes.

[Chairman.] Then we will treat Section 100 in that way, and make a note of this point for consideration, putting it in the schedule which Lord Balfour suggested.

(The Witness is directed to withdraw.)

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Mr. G. S. BARNES and Mr. W. M. GRAHAM-HARRISON recalled, and further Examined.

ON CLAUSE 101. Chairman.

181. (To Mr. Graham-Harrison.) I see in the Notes on Clause 101 you say that "the requirement to register the name of a mortgagee is not applicable to securities to bearer, and accordingly express words have been inserted in the clause by which that class of securities is exempted from the requirement." Is that really introducing anything new, or does it merely mean making clear what is the existing law?-The the existing law?-The words in brackets, "except in the case of securities to bearer," are not in the existing Act; but I think they do not make any change in the lawthey merely make it plain.

182. They make clear what is the statutory law ?-Yes.

183. Very well. Then the next subclause, Subclause 3, is new, and that, you say, represents the decision of the House of Lords in Wright v. Horton ?-Yes.

(After some discussion.)

[Chairman.] We had better omit Subclause 3.

ON CLAUSE 105. Chairman.

184. As regards Clause 105, the first few lines of Subclause 4 have been re-drafted is that merely the correction of a verbal inaccuracy?— It seemed to us to be so."

185. Would it make any difference if the section in the Act of 1907 was left without any alteration; is it necessary to make this correction? -I think if it were left as it is in the section, the language would be wrong and inaccurate.

186. Still, it would be the language of the Statute?It would be the language of the Statute; but you would be describing as done "under this section " something which was done before the section was ever passed.

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BILL (LORDS). POST OFFICE CONSOLIDATION BILL (LORDS). STATUTE LAW REVISION BILL (LORDS). 13 Mr. BARNES and Mr. GRAHAM-HARRISON.

15 July, 1908.]

Chairman-continued.

-No; that Note is only explanatory, to show how the existing law is reproduced in the clause.

ON CLAUSES 117 AND 118.

191. And the same applies to Clauses 117 and 118? Yes, that is the same; it is only an explanatory note.

ON CLAUSE 120.

Chairman.

192. Is there any alteration in the law in Clause 120? No, the clause as reproduced is the existing law. The note only suggests a possible amendment.

193. Do you think that is an advisable amendment to be put down in Lord Balfour's suggested schedule for consideration afterwards ?-There is difficulty about it, because the Arbitration Act of 1889 only applies to England, and I think it would be very difficult to make the amendment suggested. There is a different law in Scotland and Ireland.

[Chairman.] Then we will not even put it into Lord Balfour's suggested schedule.

ON CLAUSE 121

Mr. Stewart Smith.

194. There is one point that occurs to me on Clause 121, which is a clause which embodies the Joint Stock Companies Arrangement Act. Under the clause, as drawn in the Bill, a company not being in liquidation has no power to apply to the Court to confirm the proposed arrangement. Application can only be made by a creditor or member of the company, or in the case of a company being wound up, by the liquidator, but it does not provide that the company may make the application when it is not being wound up. As regards the existing law, it depends upon the construction of Section 38 of the Companies Act of 1907, but I think it is possible at any rate, under the construction of that section, that a company not in liquidation might apply. My suggestion at any rate is that the power of the company to apply might be read into the existing Bill under the construction of that section, though it is doubtful. Under the clause as it is drawn, it does not apply to a company not in liquidation ? -No

Lord Stanley of Alderley.

195. As to the question whether that would be an alteration of the existing law or not, I suppose the draughtsman of the Bill does not consider it even doubtful, or he would have put it in. In the opinion of the draughtsman, I take it, it would be an alteration of the law. (To Mr. Barnes.) Is that so ?—Yes.

(After some discussion.)

[Chairman.] If we were to insert any amendment making that clear, it would be, at any rate, altering something that is doubtful into a certainty. I am afraid we are precluded by our self-imposed rule from entertaining the suggestion, but I will note it as a case to be put into Lord Balfour's proposed schedule.

W

ON CLAUSE 122. Chairman.

[Continued.

196. (To Mr. Graham-Harrison.) As regards Clause 122, is there any alteration of the existing law?-There is no alteration in the clause as it now stands.

ON CLAUSE 123. Chairman.

197. Is there anything on Clause 123 ?— There is nothing in these printed notes, but since the Bill was introduced I have discovered a blunder in Clause 123.

198. What is that ?--It is in the third subsection of the clause. These words are exactly taken from the Act of 1890, but they produce a wrong result in consolidation. If your Lordship would look at Clause 204, Subsection 2, what I should propose is this. If the Committee would leave out this Subsection (3) of Clause 123, I should suggest that the matter might be put right by an

amendment of Clause 204 when we come to it.

199. Then we will omit Subsection (3) of Clause 123 now, and the point will come up again on Clause 204?—Yes.

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200. You say in your notes that Sub-clauses (1) and (2) are new in form but merely explanatory," they are not new in substance ?-They are not new in substance.

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15 July, 1908.]

Mr. BARNES and Mr. GRAHAM-HARRISON.

Chairman-continued. position as the personal representative for the purpose of the Land Transfer Act ?-Under that Act, certain real estate vests no longer in the heir or devisee, but in a person called the real representative, who is the same person as the

executor or administrator.

Mr. Beale.

207. I do not yet quite see why you put in the word "except "why does the fact that the land is made liable in a definite way except the heirs. and devisees ?-Because now, if you are a creditor, and you want to get at the real estate of a deceased person, you get at it, not as you used to do through the heir or devisee, but through the personal representative.

208. The procedure is different, I agree, but the heir and devisee remain just as liable as they were before? Yes, but they are now exactly in the same position as a legatee of personal estate was before.

Chairman.

209. Does it not stand in this way, that you want to make the personal representative liable in the ordinary case of personal property? Yes. 210. And you want to make heirs and devisees liable in a case where there is real property. But then comes the case in which, under the Land Transfer Act, it is not the heir and devisee, but it is the personal representative who becomes the real representative under that Act?-That it so.

211. Therefore, in that exceptional case, you want to get at him?--You want to get at him in the first instance.

212. Because he is the equivalent of the heir

and devisee in the case of other land-that is the point? That is so.

213. That being the point, is it not true that the real representative is the personal representative under the Land Transfer Act ?-That is so.

214. It seems to me to follow, as you say; this is giving effect to the law as it is. But would it be necessary to put in these words-supposing you say the personal representative or his heir and devisee quo cunque modo, you catch the gentleman under the Land Transfer Act. The result would be the same, would it not, without putting these words in. Do you think the words are necessary ?-I was not quite clear whether if you did not put the words in you would not really put upon the heirs and devisees the liability to be got at in the first instance.

(After some discussion.)

[Chairman.] I think we had better omit the words which have been inserted, "except in the case of heirs or devisees of real estate in England to which Part I. of the Land Transfer Act, 1897, applies."

[Continued.

ON CLAUSE 130.
Chairman.

216. In Clause 130 the words 66

upon an

That is an

application duly made in accordance with the
provisions of this Act" are new.
alteration, is it not?-That is an alteration
which Mr. Barnes rather thought was necessary
to preserve the exact effect of the existing law;
so that he can explain it better than I could.

217. (To Mr. Barnes.) What do you say about this? I think it depends upon Clause 138, Subsection (1), which states that "an application to the Court for the winding up of a company shall be by petition." I do not think the words are of any great importance, but I thought they were right.

218. Would it not have its effect without them? I think it would, but it makes it clearer; it is explanatory only.

219. I think we had better leave out the words, because after all with the words remaining "A company may be wound up by the Court," the Court will say whether it is by application or not?-If your Lordship pleases.

[Chairman.] Then we will omit the words " upon application duly made in accordance with the provisions of this Act."

ON CLAUSE 132.

Chairman.

case

220. (To Mr. Graham-Harrison.) On Clause 132 I see your note is, "Owing to the language of Subsections (2) and (3) of Section 1 of the Winding-up Act of 1890 being applicable only to companies having a share capital, doubts have arisen as to the jurisdiction in of companies having no such capital (see re North of England Assurance Association, 1900, 1 Chancery 481)," and it is suggested that “it might be advisable therefore to insert at the beginning of Subclause (2): In the case of a company having no share capital, or'" ?-Yes, that is a suggested amendment. It would, I think, be a very desirable one to make. [Chairman.] Then we will note that in Lord Balfour's suggested schedule.

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ON CLAUSE 138.
Chairman.

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221. I see in Subclause 1 (a) (2) of Clause 138 "presentation of the petition has been substituted for "commencement of the windingup," and in Subclause 1 (b) "contributory has been substituted for "shareholder of the company"?-Yes, as regards the first substitution, presentation of the petition" for the words. commencement of the winding-up," it is a much more accurate expression, and it introduces absolutely no alteration in the law, because the two dates are the same. If you will look at the clause you will see that it is much more intelligible if you have the words "presentation of the petition," because what the clause deals with is the circumstances in which a petition for winding-up may be presented, and it is said alteration of the law?-No, I believe that is that you may not do so unless you have been a shareholder for six months during the 18 months

ON CLAUSE 129.
Chairman.

215. As regards Clause 129, is that

merely explanatory.

any

(as

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