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tions Act, 1854 (6 & 7 Vict. c. 36), applies. Bristol Athenccum, 43
C. D. 230.

(g) Nor a company which consists of less than seven members.
Bolton Loa7i Soc, 12 0. D. 679 ; Bowling a7id IVelbg^s Contract,
(1895) 1 Ch. 663.

The fact that an unregistered company has disposed of its business
or been dissolved is not necessarily a bar to a winding-up order, e.g.,
when it has unpaid creditors. Female Endowment Soc, 5 Ch. 118.

What Courts.

Sect. 32 (2) of 1890 provides as follows : In Part IV. of the Com-
panies Act, 1862, and in this Act, the expression "the Court," when
used in relation to a company, shall, unless the contrary intention
appears, mean the Court having jurisdiction under this Act to wind
up the company.

Sect. 1 of 1890 provides as follows : —

(1.) The Courts having jurisdiction to wind up comijanies in Eng-
land and Wales shall be the High Court, the Chancery Courts of the
Counties Palatine of Lancaster and Durham, the County Courts, and
the Sta?inaries Court [since abolished].

(2.) Where the amount of the capital of a company paid up or
credited as paid up exceeds ten thousand pounds, a petition to wind up
the company or to continue the winding-up of the company under the
supervision of the Court shall be presented to the High Court, or, in
the case of a company situate within the jurisdiction of either of the
Palatine Courts aforesaid, either to the High Court or to the Palatine
Court having jurisdiction.

(3.) Where the amount of the capital of a company paid up or
credited as paid up does not exceed ten thousand pounds, and the
registered office of the company is situate, within the jurisdiction of a
County Court having j urisdiction under this Act, a petition to wind up



14 WINDING-UP BY THE COURT. [ChAP. I.

the company or to continue the winding-up of the company under the
supervision of the Court, shall be presented to that County Court.

(4.) Provided that ivhere a company is formed for ivorking mines
within the Stannaries, and is not shown to he actually %oorking mines
beyond the limits of the Stannaries, or to be engaged in any other under-
taking beyond those limits, or to have entered into a contract for such
working or undertaking, a jietition to wind uj) the company, or to continue
the tvinding-up of the company under the supervision of the Court, shall
be presented tn the Stannaries Court ivhatever may he the amount of the
capital of the Company, and wherever the registered office of the company
is situate.

(5.) The Lord Chancellor may by order exclude a County Court
from having jurisdiction under this Act, and for the purposes of such
jurisdiction may attach its district, or any part thereof, to the High
Court, or to any other County Court, and may revoke or vary any
such order. In exercising his powers under this section, the Lord
Chancellor shall provide that a County Court shall not have jurisdic-
tion under this Act unless it has for the time being jurisdiction in
bankruptcy.

(6.) Every Court having jurisdiction under this Act to wind up a
company shall, for the purj)0ses of that jurisdiction, have all the
powers of the High Court, and every prescribed officer of the Court
shall perform any duties which an officer of the High Court may dis-
charge by order of the judge thereof or otherwise in relation to the
winding-up of a company.

(7.) Nothing in this section shall invalidate a proceeding by reason
of its being taken in a wrong Court.

The words in italics must now be read in connection with the
Stannaries Court (Abolition) Act, 1896, which abolishes the Stannaries
Court and transfers its jurisdiction, except in pending cases, to certain
County Courts.

Sect. 2 of 1890 provides as follows : —

Subject to general rules and to orders of transfer made under
the authority of the Supreme Court of Judicature Act, 1873, and the
Acts amending it, the j urisdiction of the High Court under this Act
shall, as the Lord Chancellor may from time to time by general
order direct, be exercised, either generally or in specified classes of
cases, either by such judge or judges of the Chancery Division of the
High Court as the Lord Chancellor may assign to exercise that juris-
diction, or by the judge who for the time being exercises the bank-
ruptcy jurisdiction of the High Court.

As to the High Court.
I>y the Order of 29th November, 1890, tlio jurisdiction of the High
Court was vested in the following judges of the Chancery Division,



JURISDICTION. 15

namely, Chitty, North, Stirling, and Kekewich, JJ., but on 2Gth
March, 1892, the following order was made by Lord Halsbury, L. C,
and Lord Coleridge, 0. J., vesting the jurisdiction in Mr. Justice'
Vaughan Williams.

Order of 26th March, 1892, is as follows :—

"Whereas, under and pursuant to section 5 of the Supreme Court of
Judicature Act, 1884, the Honourable Mr. Justice Vaughan Williams
(being the judge of the High Court who for the time being exercises
the bankruptcy jurisdiction of the High Court) has consented, with
the concurrence of the Lord Chief Justice of England, to sit and act as
an additional judge of the Chancery Division of the High Court, for
the purpose of hearing the causes and matters assigned to him by the
Lord Chancellor or any applications therein. Now, therefore, I, the
Right Honourable Hardinge Stanley, Baron Halsbury, Lord High
Chancellor of Great Britain, do hereby, by virtue of the powers vested
in me by section 2 of the Companies (Winding-up) Act, 1890, section 5
of the Supreme Court of Judicature Act, 1884, and all other powers
enabling me in that behalf, order that, on and after the 6th day of
May, 1892, the jurisdiction of the High Court under the Companies
(Winding-up) Act, 1890, shall imtil further order be exercised by the
Honourable Mr. Justice Vaughan Williams, sitting and acting for the >.
purpose of the exercise of such jurisdiction as an additional judge of
the Chancery Division, and the said judge shall, on and after the day
aforesaid, and until further order, be the judge of the High Court
assigned for the purpose of exercising that jurisdiction, pursuant to
the Companies (Winding-up) Act, 1890."

This order should be read in conjunction with rule 1 of April, 1892
(see p. 19). Under that rule a few cases were "retained" by Chitty,
North, Stirling, and Kekewich, JJ. The practice described in this
edition does not apply to windings-up pending before those judges
when the order to wind up was made before 1st January, 1891.

Industrial and provident societies with a paid-up cajjital of over
1,000/., or less if the office is within the jurisdiction of the Metro-
politan County Courts, are now wound up by the High Court. See
56 & 57 Vict. c. 39, s. 58. And it has a similar jurisdiction as regards
registered building societies. 57 & 58 Vict. c. 47, s. 8.



As to the Lancaster Palatme Court.

The jurisdiction of this Court extends over the County of Lancaster,
which, for the purpose of the exercise of such jurisdiction, is divided
into two districts, namely, Liverpool District and Manchester District,
Prior to the Act of 1890, the jurisdiction of this Court in winding-up
was regulated by 13 & 14 Vict. c. 43, and 17 & 18 Vict. c. 82, and the
Chancery of Lancaster Act, 1890 (53 & 54 Vict. c. 23). But now the



1^ WINDING-UP BY THE COURT. [ChAP. I.

Court has jurisdiction under sect. 1 of the Companies Winding-up
Act, 1890, as regards companies " situate " within the County Palatine,
Vhich expression, it is conceived, will be held to mean companies the
registered offices of which are situate within the jurisdiction. Sect. 1
does not give to this Court exclusive jurisdiction ; the High Court has
concurrent jurisdiction with it.

As to industrial and provident societies and registered building
societies, see 56 & 57 Vict. c. 39, s. 58 ; and 57 & 58 Vict. c. 47, s. 8.

As to the Palatine Court of Durham.

The jurisdiction of this Court extends over companies "situate"
within the County Palatine of Durham. As to the meaning of the
word " situate," see above. The jurisdiction is not exclusive ; the High
Court has concurrent jurisdiction : and see 52 & 53 Vict. c. 47.

As to the Stannaries Court.

This Court was abolished as from the 1st of January, 1897, by the
Stannaries Court (Abolition) Act, 1896 (59 & 60 Vict. c. 45), but in
order to understand where its jurisdiction has gone it is necessary
to refer to the previous enactments.

Under sect. 81 of the Act of 1862, this Court had jurisdiction over
certain companies, namely, companies "engaged in working any mine
within and subject to the jurisdiction of the Stannaries." By sect. 28
of the Stannaries Act, 1887 (50 & 51 Vict. c. 43), its jurisdiction was
extended; and by sect. 1 of 1890, the jurisdiction of this Court
was defined in very wide terms, and extended to every ' ' company
formed for working mines within the Stannaries, and not shown to be
actually working mines beyond the limits of the Stannaries, or to be
engaged in any other undertaking beyond those limits, or to have
entered into a contract for such working or undertaking ;" and in the case
of such a company the Stannaries Court appears to have had exclusive
jurisdiction in winding-up, and that whether the capital was more or
less than 10,000^., and whether the registered office of the company was
situate within the Stannaries or elsewhere. Nevertheless, notwith-
standing the generality of the concluding words of paragraph 4 of
sect. 1 of 1890, the Stannaries Court did not, it is apprehended, under
that section, obtain jurisdiction over any company, unless the regis-
tered office of the company was situate in England or Wales. See
sect. 31 of 1890.

In New Terras Tin Minimj Co., (1894) 2 Ch. 344, it was held that
where a company was formed for working mines within the Stannaries,
" or elsewhere in iMigland," but was not shown to be actually working
mines beyond tlie limits of the Stannaries, the Stannaries Court was
the Court having jurisdiction to wind it up.



JURISDICTION.

By tlie Stannaries Court (Abolition) Act, 1896 (see infra), and an
order made tliereunder on Doc. IGtli, 1896, the jurisdiction of the Stan-
naries Court has been transferred to tho County Coiu'ts of Cornwall.

As to the County Courts.

Under the Act of 1862, the County Courts had no jurisdiction to wind
up companies; but under sects. 44 — 46 of the Companies Act, 1867
(now repealed by the Act of 1890), power was given to the High Court
to transfer the winding-up to a County Court, and occasionally orders
for transfer were made accordingly. The County Courts had also
exclusive jurisdiction to wind up building societies under the Building
Societies Act, 1874, and industrial and provident societies. County
Courts, with few exceptions, were by the Act of 1890 invested with full
winding-up jurisdiction as regards a company with a capital, paid up
or credited as paid up, which does not exceed 10,000/., and a regis-
tered office situate within the jurisdiction of the County Court. They
have jurisdiction, limited by reference to the amount of paid-up capital,
in the cases of industrial and provident, and registered building
societies. See 56 & 57 Vict. c. 39, s. 58 ; 57 & 58 Yict. c. 47, s. 8, and
infra, Chap. LIII., and Appendix A.

And by the Stannaries Court (Abolition) Act, 1896, s. 1 (1), "On
the commencement of this Act" — the 1st Jan. 1897 — "the Court of
the Vice-Warden of the Stannaries shall cease to exist, except for the
purpose of continuing and concluding proceedings pending in that
Court at that date, and as from that date all jurisdiction and powers
of the said Court and its officers shall, except as aforesaid, be trans-
ferred to and vested in such of the County Courts as the Lord Chancellor
may by order direct, and be exercised subject to and in accordance
with rules of Court for regulating the procedui-e in County Courts.
(2) Provision may be made by order of the Lord Chancellor . . . for
transferring to a County Court any proceedings pending in the said
Court at the commencement of this Act."

Order of Lord Halsbury, L. C, of 29th November, 1890, provides as
follows : — "That a County Court which at the time of the coming into
operation of the Companies (Winding-up) Act, 1890, is excluded from
having jurisdiction in bankruptcy, shall be excluded from having
jurisdiction under the Companies (Winding-up) Act, 1890, until fiu -
ther order, and the district of any such County Court shall, for the
purposes of jurisdiction under the Companies (Winding-up) Act, 1890,
be attached until further order to the Court to which that district is
attached at the time of the coming into operation of this Act for the
purposes of jurisdiction in bankruptcy."

For list of County Courts having jurisdiction in winding-up, see
Appendix.

The Metropolitan County Courts being excluded from bankruptcy

P. c



17



18 WINDING-UP BY THE COURT. [ChAP. I.

jurisdiction (Bankruptcy Act, 1883, ss. 92, 93), the Higli Court has
jurisdiction to wind up companies which, but for such exclusion, these
County Courts would have had jurisdiction over. — Court Bureau,
W. N. (91) 15.

By an order of the Lord Chancellor, dated the IGth December, 1896,
the jurisdiction of the Stannaries Court is transferred to the County
Courts of Cornwall. As to the practice, see County Courts (Stannaries
Jurisdiction) Eules, 1897.

General Provision as to Jurisdiction.

Particular attention should be directed to para. 7 of sect. 1 of 1890.
The words in that paragraph are identical with those of sect. 95 (3)
of the Bankruptcy Act, 1883, under which it has been held that if an
order is made without objection, it is not invalidated by the fact of its
being made by the wrong Court ; but that if the petition is wilfully
presented to the wrong Court, this is ground for dismissing it. Ex
parte May, Re Brightmore, 14 Q. B. D. 37 ; Ex parte French, Re French,
24 Q. B. D. 63. In case of inadvertence the proceedings can after-
wards be transferred to the proper Court. Ex parte French, ubi supra;
Buller and Bassett Co., 35 S. J. 17 ; MUford Haven Shipping Co., "W. N.
(1895) 16.

As to transferring winding-up proceedings, see Chaj). XLI.

Limits of Jurisdiction.

The Acts of 1862 to 1890 do not contain any provision like sect. 102
of the Bankruptcy Act, 1883, empowering the Court to decide "all
questions which may arise in any case of bankruptcy which the Court
may deem it expedient or necessary to decide for the purpose of doing
complete justice or making a com^ilete distribution of property in any
such case."

The Acts give the Court jurisdiction over outsiders in specified
cases, and the jurisdiction is confined to those cases. Hence an agree-
ment between the Company and an outsider cannot be impeached in the
winding-up; an action must be brought. Imperial Bank of China,
1 Ch. 339. And although sect. 100 of the Act of 1862, and sect. 10 of
the Act of 1890, give jurisdiction in specified cases, the jurisdiction is
limited to such cases. Ex parte Hawkins, 3 Ch. 787 ; Ilklcy Hotel Co.,
(1893) 1 Q. B. 248; Carter's case, 31 C. D. 496; Feltom's Executors'
case, 1 Eq. 219. So, too, a secured creditor is primd facie an outsider.
Lloyd V. David Lloyd ^' Co., 6 C. D. 339 ; Gaudet Freres Co., 12 C. D.
882. Where, as regards a particular matter, there is no jurisdiction
in the winding-up, it is necessary to resort to an action, and this can
bo transferred to the winding-up jiidgo.



19



CHAPTEE II.

COMMON FORMS AND GENERAL PROCEDURE.



Forms.

Rule 3 of 1890.— (1) The forms in the Appendix, where applicable, and where they
are not applicable forms of the like character, with such variations as circumstances
may require, shall be used. Where such forms are applicable, any costs occasioned
by the use of any other or more prolix forms are to be borne by or disallowed to the
party using- the same, unless the Court shall otherwise direct.

(2) Provided that the Board of Trade may from time to time alter any forms
which relate to matters of an administrative and not of a judicial character, or
substitute new forms in lieu thereof. Where the Board of Trade alters any form,
or substitutes any new form in lieu of a form prescribed by these rules, such
altered or substituted form shall be published in the London Gazette.

R. 175 of 1890.— The Board of Trade may from time to time issue general orders
or regulations for the purpose of regulating any matters under the Act or these
rules which are of an administrative and not of a judicial character. Judicial
notice shall be taken of any general orders or regulations which are printed by the
Queen's printers, and purport to be issued under the authority of the Board of
Trade.

By r. 36 of April, 1892, some of the forms in the Appendix to the Rules of 1890
were modified, and several other modifications have since been made.

Application of General Phactice of the Supreme Cotjet.

R. 178 of 1890. — In all proceedings in or before the Court, or any judge or officer
thereof, or over which the Coiirt has jurisdiction under the Acts and rules, when no
other provision is made by the Acts or these rules, the practice, proceeding, and
regulations shall, unless the Court otherwise in any special case dii-ects,

In the High Court and Stannaeies Couet, be in accordance with the Rules of
the Supreme Court and practice of the High Court ; and

In a County Couet and Palatine Couet, in accordance, as far as practicable,
with the existing rules and practice of the Court in proceedings for the administra-
tion of assets by the Court.

The jui'isdiction and powers of the Stannaries Court are now transferred to
the County Courts of Cornwall, and are to be " exercised subject to and in accor-
dance with rules of Court for regulating the procedure in County Coui'ts."
Stannaries Court (Abolition) Act, 1896, s. 1 ; order of L. C. of 16th Dec, 1896, and
see r. 6 of the County Court (Stannaries Jurisdiction) Rules, 1897, sifj)ra, p. 9.

Application of Rules of April, 1892.

R. 1 of April, 1892.— These rules shall apply to all proceedings for or in relation
to the winding-up of a company where a petition to wind up the company or to

c2



20



WINDING-UP BY THE COURT. [ChAP. II.



continue the voluntary winding-up of the company under the supervision of the
Court has been presented, or where an application in the voluntary winding-up of
the company has for the first time been made, on or after the 1st day of January,
1891 ; imless the judge before whom any such proceedings may be pending when
these rules come into operation shall think it expedient to retain them.

About thii-ty-five cases were retained by Chitty, North, Stirling, and Keke-
wich, J J.

The Rules of 1892 came into operation on the 6th May, 1892. They shall be
construed with and deemed to form with the Companies Wiading-up Rules, 1890, one
set of rules. (R. 37 of 1892.)

A "winding-up matter" now includes actions transferred to the winding-up
judge. (See R. 3 of August, 1892.)



Form 1. I^ the High Court of Justice.



No.



of 189—.



General title
(High Court,
Vaughan
Williams, J.).

Form 1 of
April, 1892.

Assignment
to registrar.



Companies (Winding-up).

Mr. Justice Vaughan "Williams.

In the matter of the Companies Acts, 1862 to 1890,
and
In the matter of the [^itisert full name of company^ Company, Limited.

R. 6 of April, 1892, provides that — (1.) Every proceeding in the High Court in a
winding-up matter to which these rules apply shall be dated, and shall be intituled
as follows \_as ahove\.

(2.) The first proceeding in every winding-up matter shall have a distinctive
number assigned to it in the office of the registrar, and all proceedings in any
matter subsequent to the first i)roceeding shall bear the same number as the first
proceeding.

When a winding-up is transferred from one Court to another, it is to receive a
new distinctive number. — R. 14 of 1890.

As to intitviling appUcations under sect. 15 of 1890, see Chap. XXIV.

In the winding-up of industrial and provident societies insert first, "In the
matter of the Industrial and Provident Societies Act, 1893, and." See sect. 58 of
the Industrial and Pro^ddent Societies Act, 1893 (56 «fc 57 Vict. c. 39).

In the winding-up of a building society under the Act of 187-1 insert first, "In
the matter of the Building Societies Acts, and." See sect. 29 of the Building
Societies Act, 1894 (57 & 58 Vict. c. 47).



(Lancaster

Palatine

Court).



Form 2. In the Chancery of the County Palatine of Lancaster.
General title [Manchester] District.

In the matter of the Companies Acts, 1862 to 1890,

and

In the matter of the Company, Limited.

B. 7 of 1890 (which still applies to Courts other than the High Court), is as
follows: — (1.) Every proceeding in Court or in chambers under the Acts shall bo
dated, and shall bo intituled " In the matter of the Companies Acts, 1862 to 1890,"
with the name of the Court in which it is taken, and of the company to which it
relates. Numbers and dates may be denoted by figiu'es.



COMMON FORMS AND GENERAL PROCEDURE. 21

(2.) The first proceeding in every winding-up matter shall have a distinctive
number assigned to it by the proper officer, and all subsequent proceedings in the
same matter shall hear the same number.

As to additional title in case of building and industrial societies, see notes to
Form 1.

In the Cliancery of tlio County Palatine of Durham. ^ _

In the matter of the Companies Acts, 1862 to 1890, • ■ — '—

„_,^i General title

(Durham

In the matter of the ■ Company, Limited. Palatine



See R. 7 of 1890, supra.

As to building and industrial societies, see notes to Form 1.

In the County Court of , hoklen at .



Coui-t).



In the matter of the Companies Acts, 1862 to 1890,
and



Form 4.



Form 5.



In the matter of the \_i?isert full name of comjntmj'] Company, Limited. General title

See R. 7 of 1890, supra. Court).

As to registered building societies and industrial and provident societies, sec Form 2 of
Form 5, and notes to Form 1.

In the County Court of , holden at .

In the matter of the Building Societies Acts \_or
In the matter of the Industrial and Provident Societies Act,
1893],

and General title

In the matter of the Companies Acts, 1862 to 1890, (Building and

^ ' Industrial

and Societies) .

In the matter of the Society.

The Stannaries Court is now abolished, and its jurisdiction is vested in the
County Courts of Cornwall. See Stannaries Court (Abolition) Act, 1896 ; order of
L. C. 16th Dec. 1896.

The title in these cases vdW be "In the County Court of Cornwall, holden at Stannaries
Truro (Stannaries Jm-isdiction) . In the matter, &c." See R. 10 of County Court Cases.
(Stannaries Jurisdiction) Rules, 1897.

Proceedings to be attached to Pegistbars.

R. 2 of April, 1892 (which only applies to proceedings before Mr. Justice Vaughan Office of
WiUiams), is as follows: — (1.) All proceedings in the winding-up of companies in t|?^?*^p^ ^°,
the High Court to which these rules apply shall be from time to time attached to °
one or more of the registrars, who shall, together with the necessary clerks and
officers, and subject to the Acts and rules, act under the general or special directions
of the judge of the High Court.

(2.) Every other registrar may act for and in place of such registrar as above
mentioned in all proceedings under the Acts and rules, including the holding of
public examinations, and when so acting such other registrar shall be deemed to be
the registrar for the purposes of the Acts and rules.



22



WINDING-UP BY THE COURT. [ChAP. II.



" Registrar " in the above rule means and includes the registrars in bankruptcy
of the High Court, and any person appointed to fill the office of registrar under
the rules {e. g., Mr. Registrar Hood). (See R. 35 (1) of 1892.)



Filing and
ousted}' of
depositions
taken at pri-
vate examina-
tions.



File of Proceedings,
In cases hefore Vaughan Williams, J.

E. 11 of April, 1892. — All petitions, affidavits, summonses, orders, proofs, notices,
depositions, bills of costs, and other proceedings in the High Court in a winding-
up matter to -which these rules apply shall be kept and remain of record in the
office of the registrar in one continuous file, and no proceeding in any winding-up
matter to which these rules apply shall, from and after the commencement of these
rules, be filed in the Central Office.

R. 1 of Nov. 1895. — Notwithstanding anything contained in the Companies
(Winding-up) Rules, 1890 — 1892, the notes of the depositions of a person examined



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