The Mercantile Bank of Sydney Act (1873 No mbs) (NSW)

lieiw SotttJ) W ales .

ANNO n i C E S I M O SEPTI MO

V I C T O R I A R E G I N A .

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An Act to incorporate tlie Shareholders of a

certain Banking' Company called ‘̂ The	—
Mercantile Bank of Sydney” and for other purposes therein mentioned. \20tTi November, 1873.]

'V ^^H EREA S a Joint Stock Banking Company called “ The Mer- preamble.

cantile Bank of Sydney” was established at Sydney in the Colony of New South Wales in the year one thousand eight hundred and sixty-nine and the same has been recently reconstructed under and subject to the rules regulations and provisions contained in a certain indenture or deed of settlement hearing date the first day of July in the year of our Lord one thousand eight hundred and seventy- three And Avhereas the said Company is desirous of being incorporated and it is expedient that it should be incorporated accordingly hut subject to the provisions hereinafter contained Be it therefore enacted by the Queen’s Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows :—

T T

1 .                The following words and expressions in the Act shall have interpretation clause,

the several meanings hereby assigned to them unless there he some­ thing in the subject or the context repugnant to such construction (that is to say)—

The words “ The Corporation” shall mean the Company incor- "The Corporation."

porated by this Act.

a The

37“ VIC. 1873.

Mercantile Bank of Sydney.

“ The Directors.” The words “ The Directors” shall mean the Board of Directors of

the Corporation.

“ Shareholder.” The word “ Shareholder” shall mean shareholder of the Corpora­

tion.

“ Deed of Settle­

ment.” The words “ Deed of Settlement” shall mean the said recited deed of settlement of the first day of July one thousand eight hundred and seventy-three as originally subsisting or as from time to time altered or amended by virtue of the

Company incorpor­ provisions thereof.

ated. 2. Such and so many persons as have already become or at any time or times hereafter shall or may in the manner provided by and subject to the rules regulations and provisions contained in the deed of settlement become holders of shares of or in the capital for the time being of the Corporation shall subject ncveidheless to the conditions restrictions regulations and provisions hereinafter contained be one body politic and corporate in name and in deed by the name of “ The Mercantile Bank of Sydney ” and by that name shall and may sue and implead any person or persons body or bodies politic or corporate whether a member or members of the Corporation or not and may be sued and be impleaded in all Comts whatsoever at Law or in Equity and may prefer lay and prosecute any indictment information or prose­ cution against any person or persons whomsoever whether a shareholder or not for any stealing embezzlement fraud forgery crime or offence and in all indictments informations and prosecutions it shall be lawful to state the money and goods effects bills notes securities or other property of whatsoever natme of the Corporation to be the money goods effects bills notes seematies or other property of the Corporation and to designate the Corporation by its corporate name whenever for the purpose of any allegation of an intent to defraud or otherwise how­ soever such designation shall be necessary and the Corporation shall have perpetual succession with a common seal which may be altered varied and changed from time to time at the pleasure of the Corpora­ tion and shall have power to hold lands subject nevertheless to the restrictions hereinafter contained.

Power to other	3.	I t shall and may be lawful to and for all and every person and
persons to convey

real estate to the	persons bodies politic or corporate (not being otherwise incompetent)
Company and vice
vend.	to grant sell alien and convey assign assure and dispose of any lands or other real estate or chattels real unto and to the use of Corporation and their successors for any of the piu’poses contemplated by this Act or any of them and the Corporation shall have full power to sell enfeoff release convey demise assign exchange or otherwise dispose of any lands or property vested or to be vested in tlie Corporation.
Confirmation of

provisions of deed of 4. The several laws rules regulations clauses covenants and

settlement as by-laws

agreements contained in the deed of settlement or to be made under

of the Company sub­

ject to this Act and

or by virtue or in pursuance thereof are and shall be deemed and con­

the general laws.

sidered to bo and shall be the by-laws for the time being of the Cor­ poration save and except in so far as any of them are or shall or may be altered varied or repealed by or are or shall or may be inconsistent or incompatible with or repugnant to any of the provisions of this Act or of any of the law's or statutes in force in the said Colony subject nevertheless to being and the same may be amended altered or repealed either wholly or in part in the manner provided in and by the deed of settlement but no rule or by-law shall on any account or pretence whatsoever be made by the Corporation either under or by virtue of the deed of settlement or of this Act in opposition to the general scope or true intent and meaning of this Act or any of the laws or statutes in force in the said Colony.

Evidence of by-laws.

5. Tlie produetion of a written or printed copy of the deed of

settlement or of any by-laws to be made in pursuance thereof or in

pursuance

ISYS. 37" VIC.

Mercantile Bank o f Sydney.

pursuance of this Act having tlic common seal of the Corporation affixed thereto shall be sufficient evidence in every Court of Civil or Criminal jurisdiction of such deed of settlement or of such hy-laws.

0. The whole of the capital of one liundred and twenty thousand Nature of general

pounds having been subscribed for and actually paid up it shall he lawful

for the Corporation subject to all tlie restrictions and provisions herein

contained to carry on the business of a Bank of issue discount and

deposit in the Colony of New South Wales and elsewhere and to make

loans of money on cash credit accounts promissory-notes hills of

exchange letters of credit and on any personal or other security and it

shall also ho lawful for the Corporation to deal in money bullion and

specie and in exchanges of and Avith all countries and in notes hills or

other securities for money and generally to transact all such other

business as it is or shall or may at any time hereafter he usual and

lawful for ('stahlishments carrying on hanking in all its branches to do

or transact and to establish agencies branch Banks or connexions in

relation to the said business in any part of the Australasian Colonics

the British Dominions or elscAvherc and to give letters of credit thereon

hut that it sliall not ho laAvful for the; Corporation to advance or lend

money solely upon the security of laiids or houses or ships nor to own

ships excc'pt as hereinafter proAuded and the Corporation shall not hold

shares in its OAvn stock nor advance or lend to any shareholder or pro­

prietor of shares in the Corporation any sum or sums of money on the

security of his share or shares nor invest lay out employ advance or

emhaik any j>art of the capital or funds of the Corporation in the

purchase of any lands houses or other real or leasehold property Avhat-

soever (save and except as herein specially provided) nor of any share

or shares in the capital stock for the time-being of the Corporation nor

in any trading or mercantile speculation or business Avhatsoever not

usually considered as falling Avithin the ordinary and legitimate pur­

poses and operations of Banking establishments Provided always

that nothing herein contained shall invalidate any lien claim interest

or title acquired or to he acquired by the Corporation by Avay of

equitable mortgage or by deposit of deeds or other documents or by

mortgage of lands or other property taken or to be taken by the

Corporation or any person or persons on their behalf as security

collateral to any hill promissory-note bond or other security or any

right claim or title to lands or other property thence to arise or the lien

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secured by the deed of settlement to the Corporation over the shares belonging to any shareholder becoming indebted or coming under engagements to tlie Corporation or making default in the fulfilment of any covenant in the deed of settlement contained or prevent the Corporation from holding the sliares forfeited by such default for the purpose of sale as prOA'ided in the deed of settlement or from taking security by the hypothecation of merchandise or hills of lading thereof for the payment of any hill or hills of exchange draAvn against any shipment of a v o oI talloAV or any other merchandise shipped for expor­ tation eitlver to or from any port or place beyond the sea or from one port to another Avithin the Australasian territories or from taking any mortgage or lien on any stations runs sheep or cattle their increase progeny a v o oI and other produce or from taking holding and enjoying to them and their successors for any estate term of years or interest for purpose of reimbursement only and not for profit any lands houses or other hereditaments or any merchandise or ships AÂhich may he taken by the Corporation in satisfaction liquidation or discharge of or as security for any debt then due or thereafter to become due to the Cor­ poration or from selling conveying and assuring the same as occasion may require And it is hereby declared that all such liens mortgages securities rights claims and holdings shall he valid accordingly.

̂ 7.

37“ VIC. 1873.

Mercantile Ba^ik o f Sydney.

Limited power to

hold lands. 7. I t shall he lawful for the Corporation notwithstanding any provisions herein contained to the contrary to purchase take hold and enjoy to them and their successors for any estate term of years or interest any houses offices l)uildin gs or lands necessary or expedient for the purpose of managing conducting and carrying on the affairs concerns and business of the Corporation also to build suitable offices on land purchased for that purpose or otherwise acquired under the provisions of this Act.

Property at present g. All tlic laiids Icascs Or leasehold interests mortgages securities Tested in Corporation, boncls covciiaiits acDTS inoneys cnosGS 111 actions tlimgs and property

vested in the trustees of the Company at the time of incorporation hereby effected or in any other person on behalf of the Company shall immediately on the passing of this Act become vested in the Corpo­ ration for the same estate and interest and with the like power and authorities as the same arc now vested in the said trustees or other person without any assignment or conveyance whatsoever and all such mortgages and securities shall he valid and effectual to protect the Corporation in respect of all operations made or to he made and all moneys advanced or to he advanced thereunder whether rcjiresented by promissory-notes or on open account and whether such operations

̂ or moneys shall he or shall not have been made or advanced in tlic name of the Mercantile Bank of Sydney or of any person in trust for or on behalf of such Bank notwithstanding any past or future changes in the members or shareholders thereof and notwithstanding the incorporation thereof.

Power to issue and

circulate Bank notes	9. The whole of the capital of the Corporation having been durinej the term of twentv-one vears to commence from the time of the passing of this Act or until the Legislature shall make other pro­ visions in that behalf unless the Corporation he sooner dissolved by virtue of the provisions of the deed of settlement on that behalf to make issue and circulate at and from any city town or place in which they may open or establish or may have opened or established any Bank branch Bank or agency any Bank notes or bills for one pound or five pounds sterling each or for any greater sum than five pounds sterling each but not for any fractional part of a pound and from time to time during the said term of twenty-one years to re-issue any such notes or hills where and so often as the Corporation shall think fit hut such privilege shall cease in case of a suspension of specie payments on demand for the space of sixty days in succession or for any number of days at intervals which shall amount together to sixty days within any one year or in case the Corporation shall not Avell and truly main­ tain abide by perform and observe all and every the rules orders provisions and directions herein contained and set forth upon which the Corporation is empowered to open Banking establishments or to issue and circulate promissory-notes.
during twenty-one	subscribed for and paid it shall he lawful for the Corporation for and
years.
Form of Bank notes.	10. All such notes shall hear date at the city town or place at and from which the same respectively shall he made and issued and the same respectively shall in all cases he payable in specie on demand at the place of date and also the princqoal establishment of the Corpo­ ration at Sydney and the total amount of the promissory-notes payable on demand issued and in circulation may extend to hut shall not at any one time exceed the amount of its actual paid-up capital and any such further amount in excess of the said capital as the Corporation shall hold in coin or gold bullion assayed by some person duly authorized by the Government for the time being of the said Company or partly coin and partly gold bullion assayed as aforesaid separate and apart from the coin and gold bullion used in the ordinary opera­ tions of the said Corporation.

1873.   37» VIC.

Mercantile Bank of Sijdney.

11.   No branch Bank nor any establishment or agency of the Cor- Only the in-incipai

poration other than and except the principal Banldng estahhkhment

shall he liable to he called upon to pay any notes of the Corporation other aatod at other places

than and except such as shall have been originally made and issued at gontatioir

or from such particular branch Bank or establishment or agency.

1 2 . I t shall he lairful for the Corporation from time to time to increase of capital,

extend or increase their capital for the time being by the creation allotment and disposal of new shares in the manner specified and set forth and suliject to the rules regulations and provisions contained in the deed of settlement so that the total amount of all the new shares to he so from time to time created shall not together with the original capital exceed five hundred thousand pounds and that at least half the amount of the increased capital sliall he actually paid up before any extension of the dealings of the Corporation in respect to such new capital shall he commenced Provided that no such extension or increase of the capital of the said Corporation shall be made or take place witliout the previous sanction and approbation in writing of the Governor for the time-being of tlie said Colony from time to time and for that purpose first had and obtained.

13. The shares or other interest of the shareholders in the Cor- Capital and shares to

poration shall be and lie deemed to be personal estate and be trans-

missiblc as such subject to the regulations of the deed of settlement.

I I . The Coriioration shall not be bound in any manner by any Corporation not

trusts or equitable interests or demands afiecting any shares ol tlic trusts or equitable capital standing in the name of anv person as the ostensible p r o p r i e t o r “‘*''■’‘̂‘‘'’8

thereof or be required to take any notice of such trusts or equitable

‘

interests or demands but the receipt of the person in ivliose name any shares shall stand in the books of the Corporation or if they stand in the name of more persons than one the receipt of the person recogniz­ able as a sharchohh'r under the provisions of the deed of settlement sliall notwithstanding such trusts or equitable interests or demands and notice thereof to the Coiqioration be a good valid and conclusive discharge to the Corporation for or in respect of any dividend or other money jiayablc by the Corporation in respect of such shares and the Corporation shall not be bound to see to the application of the money paid on such receipt and a transfer of the said shares by the person in Avhosc name such shares shall so stand shall notivithstanding as afore­ said be binding and coindusive as far as may concern the Corporation against all persons claiming by Aurtuc of such trusts or equitable interests or demands Provided always that it shall be competent to the Directors of the Corporation if they shall think fit so to do to with­ hold payment of the dividends on any such shares and to refuse to sanction the transfer of such shares in any case in Avhich the Corpora­ tion shall liaA’O had notice of any claims under an alleged trust or equitable interest or demand and Avhen sucdi claim shall appear to the Directors to bo avcU founded And provided also that nothing herein contained shall b(; deemed or taken to interfere Avith or abridge the right and poAver of a Court of Equity to restrain the payment of any such dividend or other money payable thereafter by the Corporation in respect of any such shares or the transfer by the Corporation of any such shares or to direct the payment of such dividends or other money by the Corporation or tlie transfer of such shares by the person or persons in Avliose name or nami's they may stand to such other person or persons as such Court may think fit.

IT). The total amount of the debts engagements and liabilities Amount to wiiii'h

of the Corporation Avithin the Colony of New Sonth AV'ales Avhcthcr upon bonds bills promissory-notes or othenAdse contracted other than tlieir liabilities on account of the ordinary casli deposits of customers and on account of bills of exchange draAvn by or on behalf of the

Corporation

37” VIC. 1873

Mercantile Banh o f Sydney.

Corporation upon any Banker or Banking Company or agency out of the Colony of New South Wales within the amount or value of the remit­ tances made to such Banker or Banking Company respectively to pro­ vide for payment of the said hills of exchange may extend to but shall not in any case exceed three times the amount of the actual paid-up capital stock of the Corporation.

W hat deemed public	16. All debentures issued or whicli may hereafter he issued by the Government of any of the Australian Colonics or of New Zealand such debentures being secured upon the general territorial or casual revenues of the Colony where the same are or shall he issued and every public debt contracted or which may hereafter he contracted by the Government of any such Colony under the authority of tlic Legislature thereof shall he deemed and taken to bo public securities within the meaning of this Act.
securities.
Limits to discount	17. The discounts and advances by the Corporation on promis­ maker drawer acceptor or endorser of any person or of the firm or partner of any person who shall for the lime being he a Director or other officer of the Corporation shall not at any time exceed in amount one-third of the total advances and discounts of the Corporation.
&c. on securities
bearing the name of	sory-notes hills of exchange or other securities hearing the name as
director or officer.
Ko dividend to be

taken out of the 18. No dividend shall in any case he declared or paid out of the

capital but from	subscribed capital for the time being of the Corporation or otherwise
the profits only.	than out of the net gains and profits of the business.
Periodical accounts.	19. Periodical accounts or statements and general abstracts of the assets and liabilities of the Corporation shall be prepared made out and published according to the provisions of the Act of the Governor and Council passed in the fourth year of the reign of her present Majesty intituled ‘‘‘A n Act to provide fo r the periodical pmblication of the liabilities and assets o f Banks in New South IVales and its depend­ encies and the registration o f the names o f the proprietors thereof”
Auditors to be

appointed and to 20. General half-yearly meetings of the shareholders shall ho

examine and reportheld in the months of January and July in every year and at such on affairs of Company, meetings ill cvcry year two shareholders shall ho elected auditors of the

accounts of the Corporation for the year next ensuing and within three weeks next before every such half-yearly meeting the auditors for the time being shall fully examine into the state of the accounts and affairs of the Corporation in manner provided by the deed of settlement and shall make a just true and faithful report thereon ivliicli shall ho submitted by them to the directors one week previously to such meeting and which shall be by the directors submitted to the share­ holders at such meeting and the said auditors shall and they are hereby required to make a declaration before a Justice of the Peace that such report is to the best of their several and rospeidivo knoAvledgo and belief a just true and faithful report and statement of the accounts and affairs of the Corporation and that the same is made by them after diligent and (“areful examination into the state of smdi a(!Counts and

Duplicate of	affairs as aforesaid and a duplicate copy of such rc])ort signed by tlie
auditors reports
to be sent to the	auditors and every other report (if any) which shall be made to the
Colonial Secretary.	shareholders at any half-yearly or other general ineeting by such auditors or by any other auditors s})ecially a])})ointed to inquire into the state of the accounts or affairs of the Corporation shall be trans­ mitted to the office of the Colonial Secretary at Sydney for inspection thereof within thirty days from the making of such re])ort.
Penalty for neglect
in respect of audits.	21. If such examination into or report on tlic state of the accounts or affairs of the Corporation as licreirdicforc required to be made by the auditors shall he neglected to lie made or if a duplicate copy of any such report shall be omitted to bo transmitted to the office of the Colonial Secretary as hereinbefore required the said Corporation shall for every such offence forfeit and pay to Her Majesty for the

public

1873.   37“ VIC.

Mercantile JBanh of Sydney.

public uses of the Colony the sum of one hundred pounds to he And for false or

recovered hy action of debt in the Supreme Court And if any such reports,

auditor shall at auy time knowingly make or concur in a false or

deceptive rc})ort on the state of the accounts or affairs of the Corpora­

tion such auditor shall for every such olfcncc forfeit and pay to Her

Majesty for the public uses of the Colony the sum of two hundred

pounds to he recovered in the said Supreme Court and if any such

auditor shall make a declaration to any such false or deceptive report

knowing the same to be false and deceptive ho shall be deemed guilty

,

of perjury and shall be liable to all the pains and penalties provided by

the law for such olfcnce.

2 2 . In any action or suit to he brought hy the Corporation rrovision ns to

against any shareholder or other person to recover any money due and

payable to the Corporation for or l)y reason of any call made hy virtue

of this Act or of the deed of settlement it shall be sufficient for the

Corporation to declare and allege that the defendant is the holder of

shares in the capital of the Corporation stating the number of such

shares and that ho is indebted to the Corporation in the sum to which

the call in arrear shall amount Avherehy an action hath accrued to the

'

Corporation without setting forth any special matter and on the trial of such action or suit it shall not he necessary to prove the appoint­ ment of directors or any of them who made such call or any other matter except that the defendant at the time of making such call was a holder of shares in the capital of the Corporation and that such call was in fact made and that such Jiotice thereof was given as is directed hy the deed of settlement and the Corporation shall tliercupon he entitled to recover what shall he due upon such call with interest thereon.

2 3 . The production of the shareholders register shall ho rm o f of proprietor-

facie evidence of such defendant being a shareholder and of the number

of his shares.

2 4 . Nothing herein contained shall prejudice or he deemed to Caiu contracts &c.

prejudice any call made or any contract or other act deed matter or "jj’f

thing entered into made or done hy the Company under or hy virtue of m ont beiore th is Act

the deed of settlement before this Act sliall come into operation hut ™

the same call contract act deed matter or thing shall he as valid and

effectual to all intents and purjioses as if this Act had not heen passed

and may he enforced in like manner as if the Company had been

incorporated hy this Act before the same call contract act deed matter

or thing had been made entered into or done.

2 5 . In the event of the assets of the Corporation being insuffi- Liabiiiiy of share-

eient to meet its engagements each shareholder shall over and above the shares subscribed for hy him he liable only to a further additional amount equal tliercto.

2 0 . In all cases in Avhich hy any Act of Parliament or hy any Mimascr lo do cer-

mlc or order of the Supreme Court or any other Court now or here- alter to he in force in this Colony the plaintiff or defendant in any action suit or other proceeding or any person being a 'i)arty to or interested in any process or proceeding whatsoever is or sliall he authorized em])owcrcd or required to make any affidavit or to sign or present any petition or to do any other act it shall he lawful and com­ petent for the manager acting manager or other officer or agimt of the Coi’poration (wlu'n such Corjioration shall he such plaintiff defendant or party to or otherwise interested in any process or proceeding Avhat­ soever as aforesaid) for and on behalf of the Corporation to make any such afffdaA'it sign or present any such petition or do any such other act as aforesaid.

2 7 . The directors for the time being shall have the custody o f Custody ami use of

the common seal of the Corporation and the form thereof and all other	seal,
matters relating thereto shall from time to time he determined hy the

dh’ectors

8 37“ VIC. 1873.

Anstmlkm Jochey Chib.

directors in the same manner as is provided in and hy the deed of settlement for the determination of other matters hy the directors and the directors present at a Board of directors of the Corporation shall have power to use such common seal for the affairs and concerns of the Corporation and to authorize and depute the manager or any one of their body to use or affix the same provided the affixing of such seal he evidenced hy the signature opposite thereto of at least two directors and under such seal to authorize and empower any person without such seal to execute any deeds and do all or any such other matters and things as may he required to he cxecu.ted and done on behalf of the Corporation and in conformity with the provisions of the deed of settlement and of this Act hut it shall not be necessary to use the corporate seal in respect of any of the ordinary business of the Corporation or for the ajipointment of an attorney or solicitor for the prosecution or defence of any action suit or proceeding.

Saving the rights of	28. Provided always and he it enacted That nothing in this Act interest of Her Majesty her heirs and successors or of any body or bodies politic or corjioi’ate or of any person or persons except such bodies politic or corporate and other persons as are mentioned in this Act and those claiming by from or under them.
other persons not	contained shall he deemed to affect or apply to any right title or
mentioned in this
Act.
Short title of Act.	29. In citing this Act in other Acts of Parliament and in legal instruments or otherwise it shall he sufficient to use the expression “ The Mercantile Bank of Sydney Act.”

Her Majesty and of