the above mentioned case had not been persons residing in the Section United Kingdom, an English Court could not have given effect 14. to the provision, that the mortgage should be void, both the property and the persons, in whom it was vested, being outside of its jurisdiction. In such a case the only consequence of noncompliance with the provisions of section 14 would appear to be a liability to the fines specified in section 18. "Prescribed" means prescribed by the Board of Trade. (See Section 14 (3). infra section 30 of this Act.) (rr) The date of the commencement of this Act is the first of January 1901. (See infra section 35 of this Act.) It is in the interest of a company making an issue of only part Section 14 (5). of a series of debentures, that the register of mortgages and charges should show that the entire series has not been issued. For instance, if a company executes a covering deed for a series of debentures securing in the aggregate £100,000 but only issues debentures of the value of £20,000 to start with, it is clearly to the advantage of the company, that persons searching the files kept by the registrar under section 14, should be informed, that the debentures actually issued by the company only amount to £20,000, and consequently that the company's indebtedness to its debenture-holders only amounts to £20,000. As to the expression "conclusive evidence," see supra (p. 25) Section 14 (6). the note on the same expression used in section 6 (2) of this Act. The register of mortgages and charges kept by the registrar Section 14 (8). under the provisions of section 14 of this Act would, it appears, even in the absence of subsection 8, be open to the inspection of the public by virtue of section 174 (5) of the Companies Act 1862. gages and kept by com Under section 43 of the Companies Act 1862 the company is, Section 14 (9). as has been already stated, only required to enter in its register Copies of mortin respect of each mortgage or charge a short description of the charges to be property mortgaged or charged, the amount of the charge created any and name of the person entitled to the mortgage or charge. It will be seen, that members and creditors of companies will by reason of section 14 (9) of the present Act have far fuller information than is required to be furnished by the register of mortgages (r) For a form of the particulars of mortgages and charges to be registered under section 14, see infra App. II. Form VII. For list of fees, see Section and charges kept by the company under section 43 of the Com14. panies Act 1862. Section 15. Rectification of register. Section 15. When application made under section 15 will be refused by Court. A company failing to cause a copy of any of the instruments specified in section 14 (9) to be kept at its office will commit a breach of a statutory duty and will, it appears, be liable (a) to be indicted for so doing and (b) to pay damages to any member or creditor of the company, who has suffered damage by reason of such duty not having been performed. (rr) 15. A judge of the High Court, on being satisfied that the omission to register a mortgage or charge within the time required by this Act, or the omission or misstatement of any particular with respect to any such mortgage or charge, was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief may, on the application of the company or any person interested, and on such terms and conditions as seem to the judge just and expedient, order that the time for registration be extended, or, as the case may be, that the omission or misstatement be rectified. The provisions contained in section 15 of this Act are (subject, of course, to the necessary verbal alterations, in order to make them applicable to the register of mortgages and charges of a company) very similar to those contained in section 14 of the Bills of Sale Act 1878 (41 & 42 Vic. cap. 31), which provides for the rectification of the register of bills of sale. 66 The application to rectify will only be granted "on such terms as seem to the judge just and expedient," hence it is submitted, that the Court will be guided by the principles laid down in several cases (s) dealing with the above mentioned section 14 of (rr) See supra p. 47-8, the note on "the consequences of default in performing statutory obligations pended to section 10 of this Act and ap the cases there cited. (s) Crew v. Cummings 21 Q. B. Div. 420; in re Parsons [1893] 2 Q. B. (C. A.) 122. the Bills of Sale Act 1878, and will not rectify the register or Section extend the time for registration after a third person has bona fide acquired for value a vested interest in any property, which will be affected by the rectification of the register. 15. should be Section 15 authorises "a judge of the High Court" to extend How an application for the time for registration or to rectify the register, but does not rectification of the register state how the application to the judge should be made. Having under section 15 regard to the decision of Re Whitefriars Financial Co. Limited,(t) made. which dealt with an application for leave to file a contract or memorandum in lieu of a contract under sec. 1 of the Companies Act 1898 (61 & 62 Vic. cap. 26), it is submitted, that an application under section 15 of the present Act may be made by summons, but such summons should be adjourned into Court. It has, however, been decided that the application may be made by motion. (tt) for rectification 15. Applications under section 15 may be made by the company or who may apply by any person interested" in the mortgage or charge in ques- under section tion. It would not appear to be necessary, that all the persons interested in a mortgage or charge should apply for relief under section 15 of the present Act, any one or more persons interested in the mortgage or charge may apply.(u) Entry of 16. The registrar may, on evidence being given to section 16. his satisfaction that the debt for which any registered satisfaction. mortgage or charge was given has been paid or satisfied, order that a memorandum of satisfaction be entered on the register, and shall if required furnish the company with a copy thereof. The provisions of section 16 of the present Act are similar to those contained in section 15 of the Bills of Sale Act 1878 (41 & 42 Vic. cap. 31) with the necessary verbal alterations to make them applicable to mortgages and charges created by companies. The registrar may by virtue of this provision enter a memorandum of satisfaction of "the debt"; but it is not clear whether he has power to enter satisfaction of a portion of an issue of debenture stock secured by one trust deed; for in such a case only part of the debt secured by the trust deed can be said to have been satisfied and not " the debt". For form of memorandum of satisfaction, see infra App. II. Form IX. (t) [1899] 1 Ch. 184. See also re Concessions Acquisition Syndicate W. N. [1898] 161-2. (tt) Re Bootle Cold Storage and Ice Co. W. N. [1901] 54. (u) See re Whitefriars Financial Co. Limited [1899] 1 Ch. 184. Section 17. Index of registers of mortgages and charges. Section 18. 17. The registrar shall keep a chronological index, in the prescribed form and with the prescribed particulars, to the mortgages or charges registered under this Act. "Prescribed" means prescribed by the Board of Trade. (See infra section 30 of this Act.) 18. If any company makes default in complying with the requirements of this Act as to the registration of any mortgage or charge created by the company, the company and every every director, manager, and other officer of the company, who knowingly and wilfully authorised or permitted such default shall, without prejudice to any other liability, be liable on summary conviction to a fine not exceeding one hundred pounds; and if any person knowingly and wilfully authorises or permits the delivery of any debenture or certificate of debenture stock required by this Act to be registered, without a copy of the certificate of the registrar being endorsed upon it, he shall, without prejudice to any other liability, be liable on summary conviction to a fine not exceeding one hundred pounds. The fine imposed by section 18 for non-compliance with the requirements of this Act as to the registration of mortgages or charges (i.e. subsections 6, 7 and 9 of section 14) could, even in the absence of the express provision to that effect contained in section 18, have been recovered on summary conviction by virtue of section 65 of the Companies Act 1862. As to these fines see supra (pp. 29-33) the note appended to section 7 (2) of this Act. ANNUAL SUMMARY. Annual sum 25 & 26 Vic. cap. 19. (1.) The summary mentioned in section Section 19. twenty-six of the Companies Act, 1862, shall be so mary framed as to distinguish between the shares issued $9. for cash and the shares issued otherwise than for cash or only partly for cash, and shall, in addition to the particulars required by that section to be specified, also specify (a) the total amount of debt due from the company in respect of all mortgages and charges which require registration under this Act, or which would require such registration if created after the commencement of this Act; and (b) the names and addresses of the persons who are the directors of the company at the date of the summary. (2.) The list and summary mentioned in the said section twenty-six must be signed by the manager or by the secretary of the company. Companies are by section 26 of the Companies Act 1862 Section 19. required to make an annual summary furnishing the following information : (1) the amount of the capital of the company and the number of shares into which it is divided, (2) the number of shares taken from the commencement of the company up to the date of the summary, (3) the amount of calls made on each share, (4) the total amount of calls received, (5) the total amount of calls unpaid, (6) the total amount of shares forfeited and (7) the names, addresses and occupations of the persons who have ceased to be members since the last list was made and the number of shares held by each of them. Annual summary under the Companies Act 1862. |