SECRETARIAL PRACTICE

Name of
Company.

The present and all other companies incorporated by virtue
of the Companies Act of 1862 appear to me to be statutory
corporations within this principle. The memorandum of
association is under that Act their fundamental, and (except
in certain specified cases) their unalterable law; and they
are incorporated only for the objects and purposes expressed
in that memorandum. The object and policy of those
provisions of the statute, which prescribe the conditions to
be expressed in the memorandum, and make these conditions
(except in certain points) unalterable, would be liable to be
defeated, if a contract under the common seal, which on the
face of it transgresses the fundamental law, were not held to
be void, and ultra vires of the company, as well as beyond
the powers delegated to its directors or administrators. It
was so held in the case of the East Anglian Railway Co.’
[See East Anglian Railway v. Eastern Counties Railway
(1852), 11 C.B. 775], ‘and in the other cases upon Railway
Acts, which cases were approved in this House in Hawkes’
case’ [see above], ‘and I am unable to see any distinction
for this purpose between statutory corporations under
Railway Acts, and statutory corporations under the Joint
Stock Companies Act of 1862.

There is a distinction therefore between a common law
corporation constituted by royal charter, and a statutory
corporation, such as a railway company created by its special
Act or a company incorporated under the Companies Acts.
The former ‘has primd facie . . . the power to do with its
property all such acts as an ordinary person can do, and
to bind itself to such contracts as an ordinary person can
bind himself to’; the latter ‘is made up of persons who can
act within certain limits, but in order to ascertain what are
the limits, we must look to the statute. The corporation
cannot go beyond the statute, for the best of all reasons, that
it is a simple statutory creature’ [see per Bowen L.J., in
Baroness Wenlock v. River Dee Co. (1883), 36 Ch. D., at
p. 675 (n)].

As regards the name of a company, s. 17 (1) (a) of the Act
provides that a company may not be registered by a name
identical with that by which a company in existence 1s
already registered, or so nearly resembling that name as
to be calculated to deceive, except where the company in
existence is in course of being dissolved and signifies its
consent in such manner as the Registrar requires. :

The new Act imposes restrictions on the user of certain
words as parts of the name of a company. Thus registration
by a name including the words ‘ Building Society’ is prohibited