Francis Beaufort Palmer.

Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

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(^Extended by Companies Act, 18G7, s. 12, but repealed as to England and Wales
by C. (W. U.) Act, 1890, s. 33. Sec also s. 32 (2), and s. 1. Tortious in brackets
previously repealed by S. L. It. Act, 1893.)

82. Any application to the Court for the winding-up of a company under this
Act shall Ijc by petition ; it may be presented by the company, or by any one or
more cri'ditur or crcditoi's, contiibutory or (■outributnrics of the company, or by all
or any of the above pariit.s, together or separately ; and every order which may be
made on any Buch petition shall operate in favour of all the creditors and all the



I
I



The Companies Act, 18G2. Act of 1862 779

contributories of the company in the same manner as if it had been made Tipon the p. 38
joint petition of a creditor and a contributory.

83. Any judge of the IIi(/h Court of Chancery may do in chambers any act which the Power of
Court is hereby authorized to do. Court.

{Extended by Companies Act, 1867, s. 12. The section was amended by s. 38 of
the Stannaries Act, 1869, but repealed iu toto by S. L. R. Act, 1893. The whole
section, except tvords in italics, ivas ayaiii rcjKaled by Stannaries Act, 1896, *. o.)

84. A winding-np of a company by the Court shall be deemed to commence at Commence-
the time of the presentation of the petition for the winding-up. ment of

(As to Scotland, sec Companies Act, 18S6, s. 3.) winding-up

by Court.

85. The Court may, at any time after the presentation of a petition for -winding- Court may
up a company under this Act, and before making an order for winding-iip the grant injunc-
company, upon the application of the companj^, or of any creditor or contributory tion.

of the company, restrain further proceedings in any action, suit, or pz'oceediug ^ gg goa
against the company, upon such terms as the Court thinks fit ; the Court may also '

at any time after the presentation of such petition, and before the first appointment
of liquidators, appoint provisionally an official liquidator of the estate and effects of
the company.

{As to Scotland, see Companies Act, 1886, s. 5.)

86. Upon hearing the petition the Court may dismiss the same with or without Course to be pur-
costs, may adjourn the hearing conditionally or unconditionally, and may make any ^^^^ by Court
interim order, or any other orcler that it deems just. petition^^

{As to Scotland, see Companies Act, 1886, s. 5.) p. 78

87. When an order has been made for winding-up a company under this Act no Actions and suits
suit, action, or other proceeding shall be proceeded with or commenced against the after order for
company except with the leave of the Court, and subject to such terms as the Court winding-up.
may impose. pp_ 325, 335

88. When an order has been made for winding-up a company under this Act, Copy of order

a copy of such order shall forthwith be forwarded by the company to the Registrar to be forwarded
of Joint Stock Companies, who shall make a minute thereof in his books relating to ^° registrar.
the company. p. 92

89. The Court may at any time after an order has been made for winding-up a Power of
company, upon the application by motion of any creditor or contributory of the Court to stay
company, and upon proof to the satisfaction of the Court that all i^roceedings in proceedino-s.
relation to such winding-up ought to be stayed, make an order staying the same,

either altogether or for a limited tune, on such terms and subject to such conditions
as it deems fit.

{As to Scotland, see Companies Act, 1886, s. 5.)

90. When an order has been made for winding-up a company limited by EfPect of order
guarantee, and having a capital divided into shares, anj^ share capital that may not on share
have been called up shall be deemed to be assets of the company, and to be a debt capital of

(in England and Ireland of the nature of a sijecialty) due to the company from each company
member to the extent of any sums that may be tinpaid on any shares held by him, limited by
and payable at such time as may be appointed by the Court. guarantee.

91. The Court may, as to all matters relating to the winding-up, have regard P- '^'^

to the wishes of the creditors or contributories, as proved to it by any sufficient Court may

evidence, and may, if it thinks it expedient, direct meetings of the creditors or have regard

contributories to be summoned, held, and conducted in such manner as the Coiu-t to wishes of

directs, for the purpose of ascertaining their wishes, and may appoint a person to creditors or

act as chairman of any such meeting, and to report the result of such meeting contribu-

to the Court : in the case of creditors, regard is to be had to the value of the debts tories.

due to each creditor, and in the case of contributories to the number of votes con- pp. 78 347
ferred on each contributory by the regulations of the company.
( Amended as to Scotland, Companies Act, 1886, s. 5. See also G. { W. U.) Act, 1890, s. 13.)

\_Official'] Liquidators.

92. For the purpose of conducting the proceedings in winding-up a company Appointment
and assisting the Court therein, there may be appointed a person or persons to be of official
called an [official] liquidator or [official] liquidators ; and the Coui't having jiuis- liquidators,
diction may appoint such person or persons, either provisionally or otherwise, as it pp. 95 190

206



780



Appendix A.



p. 217



Resignations,
removals,
filling up
vacancies,
and compen-
sation.
p. 592
p. 229
Style and
duties of
official liqui-
dator.
pp. 206, 280



Powers of
official
liquidator,
p. 207
p. 309

p. 291



p. 307
p. 287



thinks fit, to the ofiice of [official] liquidator or [official] liquidators ; in all cases
if more persons than one are appointed to the office of [official] liquidator, the
Court shall declare whether any act hereby required or authorized to be done by
the [official] liquidator is to be done by all or any one or more of such persons.
The Court mai/ also determine whether any and what security is to be given by any
[official^ liquidator on his appointment ; if no [official] liquidator is appointed, or
dui'ing any vacancy in such appointment, all the property of the company shall
be deemed to be in the custody of the Coiu-t.

{As to disuse of word "oj^'cial,^' see C. (TF. V.) Act, 1890, s. 4, and see s. 6. The
xvords in italics repealed as to England and JFales by C. ( JF. U.) Act, 1890, s. 33.)

93. Any [official] liquidator may resign or be removed by the Court on due
cause shown : and any vacancy in the office of an [official] liquidator appointed by
the Coiu't shall be filled by the Coiirt: there shall be paid to the [official] liquidator
such salary or remuneration, by way of percentage or otherwise, as the Court may
direct ; and if more liquidators than one are appointed, such remuneration shall be
distributed amongst them in such proportions as the Court directs.

{As to Scotland, see Companies Act, 1886, s. 5.)

94. The [official] liquidator or liquidators shall be described by the style of the
[official] liquidator or [official] liquidators of the particular company in respect of
which he is or they are apjiointed, and not by his or their individual name or names ;
he or they shall take into his or their custody, or under his or their control, all the
property, efl^ects, and things in actions to which the company is or appears to be
entitled, and shall perform such duties in reference to the winding-up of the com-
pany as may be imposed by the Coiu't.

{See C. {TF. U.) Act, 1890, s. 4.)

95. The [official] liquidator shall have power, with the sanction of the Court,
to do the following things :

To bring or defend any action, suit, or prosecution, or other legal proceeding,
civil or criminal, in the name and on behalf of the company :

To carry on the business of the company, so far as may be necessary for the
beneficial winding-up of the same :

To sell the real and personal and heritable and moveable property, eflPects and
things in action of the company by public Ruction or private contract, with
power to transfer the whole thereof to any person or company, or to sell the
same in parcels :

To do all acts and to execute, in the name and on behalf of the company, all
deeds, receipts, and other documents, and for that purpose to use, when
necessary, the company's seal :

To prove, rank, claim, and di'aw a dividend, in the matter of the bankruptcy or
insolvency or sequestration of any contributory, for any balance against the
estate of such contributory, and to take and receive dividends in respect of
such balance, in the matter of banki'uptcy or insolvency or sequestration, as a
separate debt due from such bankrupt or insolvent, and rateably with the other
separate creditors :

To draw, accept, make, and endorse any bill of exchange or promissory note in
the name and on behalf of the company, also to raise upon the security of the
assets of the company from time to time any requisite sum or sums of money ;
and the drawing, accepting, making, or endorsing of every such bill of ex-
change or promissory note as aforesaid on behalf of the company shall have the
same effect with respect to the liability of such company as if such bill or note
had been drawn, accepted, made, or endorsed by or on behalf of such company
in the course of carrying on the business thereof :

To take oiat, if necessary, in his official name, letters of administration to any
deceased ccmtributory, and to do in his official name any other act that may be
necessary for obtaining payment of any moneys duo from a contributory or
from his estate, and which a(;t cannot bo conveniently done in the name of the
company ; and in all cases where he takes out letters of administration, or
otherwise uses his official name for obtaining payment of any moneys due from
a contributory, such moneys shall, for the purj^ose of enabling him to take out
such letters or recover such moneys, be deemed to be due to the official liquidator
himself :

To do and execute all such other things as may be necessary for winding up the
afiairs of the company and distributiug its assets.

{Amended by C. {JF. U.) Act, 1890, s. 12. As to Scotland, sec Companies Act,
1880, a. b.)



The Companies Act, 1862. Act of 1862 781

96. Tlio Court may provide by any order that tlio [ofHcial] liquidator may exercise Discretion
any of the above jiowers without the sanction or intervention of the Court, and of official
where an official liquidator is provisionally appointed may limit and restrict his liquidator.
I)owers by the order appointing- him. „ gg

{As to Scotland, see Companies Act, 1886, s. 5.)

97. The official liquidator maij, with the sanction of the Court, appoint a solicitor or Appointment
laiv agent to assist him in the performance of his duties. of solicitor to

{Repealed as to England and Wales bij C. {Jr. U.) Act, 1890, s. 33, and see official liqui-
s. 12 (4).) dator.

Ordinary Powers of Court.

98. As soon as may be after making an order for winding-up the company, the Collection
Coiu't shall settle a list of contributories, with power to rectify the register of and applica-
mombers in all cases where such rectification is required in pursuance of this Act, tion of assets,
and shall cause the assets of the company to be collected, and applied in discharge p_ £80

of its liabilities.

{See C. {JF. U.) Act, 1890, s. 13.)

99. In settling the list of contributories, the Court shall distinguish between Provision as
persons who are contributories in their own right and persons who are contributories to representa-
as being representatives of or being liable to the debts of others ; it shall not be tive contribu-
necessary, where the personal representative of any deceased contributory is placed tories.

on the list, to add the heirs or devisees of such contributory, nevertheless such heirs p_ 443
ur devisees may be added as and when the Court thinks fit.
{See C. {JF. U.) Act, 1890, s. 13.)

100. The Court may, at any time after making an order for winding-up a Power of
company, require any contributory for the time being settled on the list of contribu- Court to re-
tories, trustee, receiver, banker, or agent, or officer of the company, to pay, deliver, quire delivery
convey, suiTender, or transfer forthwith, or within such time as the Coui't directs, of property,
to or into the hands of the [official] liquidator, any sum or balance, books, papers, qrO
estate, or effects which happen to be in his hands for the time being, and to which "'

the company is, prima facie entitled.

{As to Scotland, see Companies Act, 1886, s, 5. See also C. {W. U.) Act, 1890,
s. 13.)

101. The Court may, at any time after making an order for winding-up the Power of
company, make an order on any contributory for the time being settled on the list Court to order
of contributories, directing payment to be made, in manner in the said order men- payment of
tioned, of any moneys due from him or from the estate of the person whom he delits bv con-
represents to the company, exclusive of any moneys which he or the estate of the tributory.
person whom he represents may be hable to contribute by virtue of any call made ^gg n.m
or to be made by the Court in pursuance of this part of this Act ; and it may, in ^^ " '
making such order, when the company is not limited, allow to such contributory by

way of set-off any moneys due to him or the estate which he represents from the
company on any independent dealing or contract with the company, but not any
moneys due to him as a member of the company in respect of any dividend or profit :
Provided that when all the creditors of any company whether limited or luilunited
are paid in full, any moneys due on any account whatever to any contributory from
the company may be allowed to him by way of set-off against any subsequent call
or calls.

{Set-off extended to director and manager. ComjMnies Act, 1867, s. 6.)

102. The Court may, at any time after making an order for winding-up a com- Power of
pany, and either before or after it has ascertained the sufficiency of the assets of the Covirt to
company, make calls on and order payment thereof by all or any of the contribii- make calls,
tories, for the time being settled on the list of contributories, to the extent of their p_ 470
liability for payment of all or any sums it deems necessary to satisfy the debts and
liabilities of the company, and the costs, charges, and expenses of winding it up,

and for the adjustment of the rig'hts of the contributories amongst themselves, and
it may, in making a call, take into consideration the probability that some of the
contributories upon whom the same is made may partly or wholly fail to pay their
respective portions of the same.

{See C. {JF. U.) Act, 1890, s. 13.)



782



Appendix A.



Power of 103. The Court may order any contributory, purchaser, or other person from

Court to order whom money is due to the company to pay the same into the Bank of Enghmd
payment into or any branch thereof to the account of the [official] liquidator instead of to the
bank. [official] liquidator, and such order may be enforced in the same manner as if it

had directed payment to the [official] liquidator.
{See C. [JF. U.) Act, 1890, ss. 11, 15.)



Regulation of
account with
Court.
p. 307



Provision in
case of repre-
sentative con-
tributory not
paying
moneys
ordered,
p. 501

Order conclu-
sive evidence,
p. 501



Court may
exclude
creditors not
proving with-
in certain
time,
p. 364



Court to
adjust rights
of contribu-
tories.
p. 493

Court to order
costs.
p. 565

Dissolution of
comjtany.
p. 601

Registrar to
make minute
of dissolution
of company.
p. 601
Penalty on
not reporting
dissolution of
company,
p. €01



104. All moneys, bills, notes, and other securities paid and delivered into the
Bank of England or any branch thereof in the event of a company being wound up
by the Court, shall be subject to such order and regulation for the keei^ing of the
account of such moneys and other effects, and for the payment and delivery in, or
investment and payment and delivery out of the same as the Coiu"t may direct.

{See C. {JF. U.) Act, 1890, ss. 11, 15.)

105. If any person made a contributory as personal representative of a deceased
contributory makes default in paying any sum ordered to be paid by him. proceed-
ings may be taken for administering the personal and real estates of such deceased
contributory, or either of such estates, and of compelling payment thereout of the
moneys due.

106. Any order made by the Court in pursuance of this Act upon any contri-
butory shall, subject to the provisions herein contained for ax^pealing against such
order, be conclusive evidence that the moneys, if any, thereby appearing to be due
or ordered to be paid are due, and all other pertinent matters stated in such order
are to be taken to be truly stated as against all persons, and in all proceedings
whatsoever, with the exception of proceedings taken against the real estate of any
deceased contributory, in which case such order shall only be priiiid facie evidence
for the purpose of charging his real estate, unless his heirs or devisees were on the
list of contributories at the time of the order being made.

107. The Court may fix a certain day or certain days on or within which creditors
of the company are to prove their debts or claims, or to be excluded from the benefit
of any distribution made before such debts are pro\'ed.

{Amended as to Scotland, Companies Act, 1886, s. 5 ; see also G. {JF. U.) Act,
1890, s. 13.)

108. Proceedings in the Court of the Vice-Warden of the Stannaries on proof
of debts.

{Rep. by Stannaries Act, 1896, s, 5.)

109. The Court shall adjust the rights of the contributories amongst
themselves, and distribute any surplus that may remain amongst the parties
entitled thereto.

110. The Court may, in the event of the assets being insufficient to satisfy the
liabilities, make an order as to the payment out of the estate of the company of the
costs, charges, and expenses incurred in winding-up any company in such order of
priority as the Court thinks just,

111. "Wlien the affairs of the company have been completely wound up, the
Court shall make an order that the company be dissolved from the date of such
order, and the company shall be dissolved accordingly.

112. Any order so made shall be reported by the official liquidator to the regis-
trar, who shall make a minute accordingly in his books of the dissolution of such
company.

113 . If the [official] liquidator makes default in reporting to the registrar, in the
case of a company being wound iip by the Court, the order that the company be
dissolved, he shall be liable to a penalty not exceeding five pounds for every day
durring which he is so in default.

[114. Petition to be Us pendens.']

{liepcaled hj 30 ^- 31 Vict. c. 47, «. 1.)



Extraordinary rowers of Court.

Power of 115. Tlic Court may, after it has made an order for winding-up the company,

Court to sum- suminon before it any oflicor of the comj)any or person known or suspected to have
raou poraona in Lis posscsHion any of the estate or ollccta of the company, or supposed to be



The Companies Act, 1862. Act of 1862 783

indebted to the company, or any person whom tlic Court may deem capable of before it sus-
giviufi; informatiou concerning the trade, dealings, estate, or effects of the company ; pected of
and the Court may i-equire any such ofhcer or person to produce any books, ])ap(rs, having pro-
deeds, writings, or other documents in his custody or power relating to the com- perty of
pany ; and if any person so summoned, after being tendered a reasonable sum for his company,
expenses, refuses to come before the Court at the time appointed, having no lawful p, 516
impediment (made known to the Court at the time of its sitting, and allowed by it),
the Court may cause such person to be apprehended, and brought before the Court
for examination ; nevertheless, in cases where any person claims any lien on papers,
deeds, or writings or documents produced by him, such production shall be without
prejudice to such lien, and the Court shall have jurisdiction in the winding-up to
determine all questions relating to such lien.

[Amenckd as to Scoilaiid, Compahics Act, 1886, s. 5.)

[116. Special provisions as to Court of Vice-Warden of the Stannaries.]
[Repealed hij Stannaries Act, 189G, «. 5.)

117. The Court may examine upon oath, either by word of mouth or upon Examination
written interrogatories, any person appearing or brought before them in manner of parties by
aforesaid concerning the affairs, dealings, estate, or effects of the company, and may Court,
reduce into writing the answers of eveiy such person, and require him to subscribe p_ 5ig

the same.

[Amended as to Scotland, Companies Act, 1886, s. 5.)

118. The Coiu't may, at any time before or after it has made an order for Power to
winding-up a company, upon proof being given that there is probable cause arrest con-
fer believing that any contributory to such company is about to c[uit the United tributory
Kingdom, or otherwise abscond or to remove or conceal any of his goods or about to
chattels, for the purjDose of evading- payment of calls, or for avoiding- examination abscond, or
in respect of the affairs of the company, cause such contributory to be arrested, and to remove or
liis books, pajjcrs, moneys, securities for moneys, goods, and chattels to be seized, conceal any of
and him and them to be safely kept until such time as the Coui-t may order. his property.

[As to Scotland, see Companies Act, 1886, s. 5.)

119. Any pow-ers' by this Act conferred on the Court shall be deemed to be in Powers of
addition to and not in restriction of any other powers subsisting, either at law or Court cumu-
in equity, of instituting proceedings against any contributory, or the estate of any lative.
contributory, or against any debtor of the company, for the recovery of any call or

other sums due from such contributory or debtor, or liis estate, and such proceedings
may be instituted accordingly.

Enforcement of and Appeal from Orders,

120. All orders made by the Court of Chancery in England or Ireland under this Power to
Act may be enforced in the same manner in which orders of such Court of Chancery enforce
made in any suit pending therein maybe enforced, and for the purposes of this part orders.
of this Act the Court of the Vice-Warden of the Stannaries shall, in addition to its
ordinary pnivers, have the same power of enforcing any orders made by it as the Court of
Chancery in England has in relation to matters within the jurisdiction of such Court, and

for the last-mentioned pmposes the jurisdiction of the Vice-Warden of the Stannaries
shall be deemed to be co-extensive in local limits with the jurisdiction of the Court of
Chancery in England.

[See Stannaries Court [Abolition) Act, 1896.)

121. "Where an order, interlocutor, or decree has been made in Scotland for Power to
winding-up a company by the Court, it shall be competent to the Coiirt in Scotland order con-
during session, and to the Lord Ordinary on the Bills during vacation, on production tributories in
by the liquidators of a list certified by them of the names of the contributories liable Scotland to
in payment of any calls which they may wish to enforce, and of the amount due by pay calls,
each contributory respectively, and of the date when the same became due, to
pronounce forthwith a decree against such contributories for payment of the siims

so certified to be due by each of them respectively, with interest from the said date
till payment, at the rate of five pounds per centum per annum, in the same way
and to the same effect as if they had severally consented to registration for execu-
tion, on a charge of six days, of a legal obligation to jiay svich calls and interest ;
and such decree may be extracted immediately, and no suspension thereof shall be
competent, except on caution or consignation, unless with special leave of the Court
or Lord Ordinary.

[See Companies Act, 1886, s. 5.)



784



Appendix A.



Scotland
p. 504



Order made 122. Any order made by the Court in England for or in the course of the

in England to 'winding-up of a company under this Act shall be enforced in Scotland and Ireland
be enforced in in the Coui-ts that would respectively have had jurisdiction in respect of such
Ireland and company if the registered office of the company has been situate in Scotland or
Ireland, and in the same manner in all respects as if such order had been made by



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 102 of 134)