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registration, form an incorporated company, with or without limited liability."
Section 16 prescribes that the articles of association shall be signed by each subscriber in the presence of and be attested by one wit- ness at the least, and, when registered, they shall bind the company and the members there. of," etc., etc.
THE HONGKONG WEEKLY PRESS AND
reference to the similar provision contained in section 115 of the Joint Stock Companies Act, Section 11 enacts that "the memorandum of 1856. There Lord Justice Turner said in the association shall be signed by each subscriber in course of his judgment, at p. 371-" I may the presence of and be attested by one witness here notice an argument which was urged on at the least. It shall, when registered, bind the the part of some of the respondents, that we company and the members thereof," etc., etc. have nothing to do with the question whether By section 14 it is provided as follows:-" The this company was authorised to be registered or memorandum of association may, in the case not; that it was sufficient that the company of a company limited by shares, and shall, in was in fact registered, and that the certificate the case of a company limited by guarantee or of registration is, by the 115th section of the unlimited, be accompanied, when registered, by Joint Stock Companies Act, 1856, rendered cou- articles of association signed by the subscribers clusive. I notice this argument only for the to the memorandum of association, and purpose of laying it entirely out of the case.
pre. scribing such regulations for the company as If the company was not authorised to be regis- the subscribers to the memorandum of associatered, I take it to be quite clear that the corti- tion deem expedient," etc., etc.
ficate of registration can be of no avail."
In re Larued's Banking Company, Pool's It was Case, 2 Ch. 74, was decided in 1867. argued before Lords Justices Turuer and Lord Cairns, but in consequence of the death of Lord Justice Turner, Lord Cairns alone pronounced julgment. It was an appeal motion, by Mr. William Peel, to discharge an order of the By section 17 it is enacted that the memo-
Master of the Rolls refusing to rectify the regis. randum of association and the articles of as
ter of shareholders of Barued's Bauking Com sociation, if any, shall be delivered to the Registrar hereinafter mentioned, wh shall any, Limited, by removing the appellant's name therefrom. It appeared there that, when retain and register the same.
There is
in the the memorandum of association of the company question raised 10
was brought to the Registrar of Joint Stock present case that the memorandum association of the Company was
Companies for registration, it was objected to regular form or not duly registered. But by him as being too wide in its terms, where with regard to the articles of association upon the bearer of it, then and there, without comunication with the persons who had signed it appears that, although they were in print. they were not signed by any of the subserbarsit, made alterations to remove the objectious of to the Memorandum of Association, and of Thess Umis- course there was no attestation. sions unfortunately eso ped the notice of the Acting Registrar, and he accordingly registered the Articles. Apparently he attached them to the Memorandum of Association by means of a
not
of
in
the Registrar, who at once registered it in the altered form. Now here was a plain violation of the express words of the Act; the memorandum not really of association, as registered. was
Yet it was sigued by any of the subscribers. held that, although the conduct of the Regis. trar. in knowingly registering a docuneut metal paper fastener, at the same time marking which had been thus alterol, was most censur- them with his name and the date. On the completion of the registration proceedings, heable, the company was duly coustituted, the gave a certificate of the incorporation of the Company, bearing date the 14th March, 1841. I find on the evidence before me that the Arti cies of Association so registered have teen in use by the Company from that date until the present time.
If this were all, I think the case would be free from difficulty. The language of the Ordinance with respect to the siguing and attestation of articles of association is express and imperative, and I am of opinion that no amount of uses or acquiescence could make good any failure to comply with the plain and positive provisions of the Ordinance. But this is not all. We have to consider what is the effect of the re- gistration and of the consequent iuc rporation of the Company in relation to these things. By section 13 the Registrar is required, on completion of the registration proceedings, to give a certificate of incorporation, and thereupon the sabscribers of the memorandum of associ- ation and the future members of the company become a body corporate; and the section con- cludes with the following words :- A certifi cate of the incorporation of any company given by the Registrar shall be conclusive evidence that all the requisitious of this Ordinance in respect of registration have been complied
with."
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The question then is, what is the effect of this provision upon the state of facts in this case? Does it operate to make the Articles of Association of the Company, which were defec. tive and not proper to be registered, valid and effectual? I confess that, to my mind, on a plain co astruction of the words, they have this effect It seems to me that the Legislature intended by them to declare that when a com- pany has received its certificate of incorporation it is to be taken by all the world as fairly launch ed, and that it is unnecessary for its members and persons dealing with it to make inquiry whether all the proceedings prelimiuiary to its launching have been regularly conducted or not. Bat the matter is not so simple as this, for there are de cisions of the English Courts as to the effect of the corresponding euactment in the Imperial Act of 1862 which it is difficult, or, indeed, as it seems to me, impossible, to reconcile. I will refer to these decisions in their proper order.
The first case is In re the Northumberland and Durhan District Bauking Company, 2 De. G. and J. 357, whica was decided in 1858 with
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after the company had commenced trade) of the eircumstances attending the original registra- tion and the regularity of the execution of the document originally received by the Registrar The Registrar, if he performs his duty carefully, will be the guardian of the public interest by seeing that the memorandum is properly executed and properly brought for registration; but, whether he does so or not, when once the doertificate of incorporation is given, nothing is to be inquired into as to the regularity of the prior proceedings."
It was
Curiously enough, within a few days after the decision in this case, the House of Lords was dealing with the same point in Oakes v. Tar- quand, L. R. 2 H. L. 325. In that case when the attesting witness to the memorandum of association took it for registration to the. Registrar of Joint Stock Companies, the Regis trar refused to receive it unless certain words in it were struck out. The attesting witness consented, and the words objected to were struck out at once, without any communica- tiou being had with any other person. The memorandum was then "registered. argued for the appellants that there had been no signing and registration of the memorandum in accordance with the statute, and that consequently the company had not been duly incorporated. But the House of Lords declined to accept this view of the effect of the alteration. The Lord Chancellor (Lord Chelmsford) said. at p. 354:--" This objection strikes at the root of the company's existence, for it asserts that there was no memorandum of association subscribed by seven persons, and, consequently, that there never was any incor- porated company. This, as I understand, is founded upon an alleged variance between the prospectus and the memorandum of association, which is made the ground of a separate objec- The short answer to this objection is found in the Companies Act, 1852, which, in the 6th section provides that any seven or more persons may, by subscribing their names to a memorandum of association, and otherwise complying with the requisitions of the Aot in respect of registrations, form an incorpor-
tion.
certificate of registration being, under section 18 of the Companies Act, 1862, conclusive evidence that the requisitions of the Act had been complied with. In his judgment Lord Cairus made the following strikingated company. And, by the 18th section. observations, at page 681:-"As it was, this solemu and important document was altered in the office of the Registrar, with the consent of his deputy, and apparently not without the sation of himself, al erel so as, in fact, to substitute for it a document materially different. the execution attached to the former docum -ut
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in its original shape appearing o be an exʊen tion of the document in its altered state. far as the original parties to the document were concerned, and so far as the document should
be looked at up to the point of its registration. in my opinion the alteration so made entirely neutralised and annihilated the original execu. tion and signature of th› docu:nent.
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That, however, is not the question with which I have now to deal. I have to decide what the effect of this alteration is, having regard to the 18th section of the Companies Act, 1862. Tais section provides, among other things, that '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. The certificate was given in this case in due form. Now, as I understand the ob jection of Mr. Peel, it is, that the requisitions of the Act in respect of registration have got been complied with, and that his name ought. therefore, to be taken off the list of coutribu. tories. But, according to the Act of Parlia ment, the certificate of incorporation given by the Registrar is not merely a prímá fucie auswer, but a conclusive answer, to any such objection, and as it seems to me not only is that the express provision of the Act of Parliament, but there is sufficient reason for such a pro- visiou. Parliament requires, for obvious pur- poses of public policy, that a company of this description should begin by seven or persons subscribing a memorandum which is to be registered; aud when once the memorandum is registered, and the company is held out to the world as a company undertaking business, willing to receive shareholders, and ready to contrast engagements, then it would bẹ of most 'disastrous consequence if, after all that has beca done, any person was allowed to go back and enter into an examination (it might be years
more
upon the registration of the memorandum of association, etc., the Registrar shall certify under his hand that the company is in- corporated, and a certificate of the in- corporation of the company given by the Registrar shall be conclusive evidence that all the requisi ions of the Act in respect of re- gistration have been complied with. I think the certificate prevents all recurrence to prior matters essential to registration, amongst which is the subscription of a memorandum of assO- ciation by seven persons, and that it is conclu- sire in this case, that all previous requisites have been complied with."
In this opinion Lord Cranworth and Lord Colonsay expressly concurred
In the case now under oitation Peel's Case supra was referred to, but not on the question of the effect of the certificate of incorporation in a note it is said to have been not reported, and no doubt the report of it was published after the judgement of the House of Lords had
been delivered.
This case was followed by In re Nassau Phosphate Company, L. R. 2 Ch. D. 610, which was decided in 1896. There, in the course of proceedings for the winding-up of 3 company, it WAS discovered that of the seven persona who had signed the memorandum of association one was an in-
fant.
A petition was thereupon presented by creditors praying that the company might be ordered to be wound up as an unregistered com- pany, on the ground that the company was not duly incorporated and could not therefore be wound up as a registered company. But Vice- Chancellor Hall said, at p. 615": -" The memor. andum and articles of association having been : registered, are to be open to the public for the purpose of inspection, so that the public may be enabled to see by whom the memorandum was signed, and what are the business, powers, and objects of the company. That being so, upon a fair and reasonable interpretation of the 18th section, it is plain that the certificate of the Registrar is conclusive that the parties have become an incorporated body." And he held that the certificate of incorporation was sufficient to incorporate the company, not-