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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the Courts that are hereby required to enforce the same ; and in like manner
orders, interlocutors, and deci-ees made by the Court in Scotland for or in the course
of the vrinding-tip of a company shall be enforced in England and Ireland, and
orders made by the Court in Ireland for or in the course of winding-up a
company shall be enforced in England and Scotland by the Courts which would
respectively have had jurisdiction in the matter of such company if the registered
office of the company were situate in the division of the United Kingdom where the
order is rec[uired to be enforced, and in the same manner in all respects as if such
order had been made by the Court required to enforce the same in the case of a
company within its own jurisdiction.

[See as to Scotland, ComjMnies Act, 1886, s. 5.)



Mode of deal-
ing with
orders to be
enforced by
other Courts,
p. 505



Appeals from
orders.



p. 582



Judicial
notice to be
taken of
signature of
officers.



Special com-
missioners
for receiving
evidence-



123. "Where any order, interlocutor, or decree made by one Court is required to
be enforced by another Court, as hereinbefore provided, an office copy of the order,
interlocutor, or decree so made shall be produced to the proper officer of the Court
required to enforce the same, and the production of such office copy shall be
sufficient evidence of such order, interlocutor, or decree having been made, and
thereupon such last-mentioned Court shall take such steps in the matter as may be
requisite for enforcing such order, interlocutor, or decree, in the same manner as if
it were the order, interlocutor, or decree of the Court enforcing the same.

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

124. Rehearings of and appeals from any order or decision made or given in the
matter of the winding-up of a company by any Court having jurisdiction under
this Act may be had in the same manner and subject to the same conditions in and
subject to which appeals may be had from any oi'der or decision of the same Court
in cases within its ordinary jurisdiction ; subject to this restriction, that no such
rehearing or appeal shall be heard unless notice of the same is given within three
iceehs after any order complained of has been made, in manner in which notices of
appeal are ordinarily given according to the practice of the Court appealed from,
unless such time is extended by the Court of Appeal : 'provided, %c.

{As to Scotland, see Companies Act, 1886, ss. 5, 6. The proviso did not relate
to Scotland, and is repealed by Stannaries Act, 1896, s. 5. As to the time, see
Judicature Act, 1894.)

125. In all proceedings under this part of this Act, all Courts, judges, and
persons judicially acting, and all other officers, judicial or ministerial, of any Court,
or employed in enforcing the process of any Court, shall take judicial notice of the
signature of any officer of the Courts of Chancery or Bankruptcy in England or in
Ireland, or of the Court of Session in Scotland, or of the registrar of the Court of the
Vice- Warden of the Stannaries, and also of the official seal or stamp of the several
offices of the Courts of Chancery or Bankruptcy in England or Ireland, or of the
Court of Session in Scotland, or of the Court of the Vice- Warden of the Stannaries,
when such seal or stamp is ajjjiended to or impressed on any document made, issued,
or signed under the provisions of this part of the Act, or any official copy thereof.

(.lis to words in italics, see Stannaries Court {Abolition Act), 1896.)

126. The Commissioners of the Court of Bankruptcy and the judges of the
County Courts in England who sit at places more than twenty miles from the
General Post Office, and the commissioners of bankrupt and the assistant barristers
and recorders in Ireland, and the sheriffs of counties in Scotland, shall be com-
missioners for the purpose of taking evidence \uider this Act in cases where any
company is wound up in any part of the United Kingdom, and it shall be lawful
for the Court to refer the whole or any part of the examination of any witnesses
under this Act to any person hereby appointed commissioner, although such com-
missioner is out of the jurisdiction of the Court that made the order or decree for
winding-up the company ; and every such commissioner shall, in addition to any
j)Owcr of summoning and examining witnesses, and requiring the production or
delivery of documents, and certifying or punishing defaults by witnesses, which he
might lawfully exercise as a Commissioner of the Court of Bankruptcy, judge of a
County Court, commissioner of bankrupt, assistant barrister, or recorder, or as a
fihcritf of a county, havo in the mutter so referred to him all the same powers of



The Companies Act, 1862. Act of 1862 785

summoning- and examining' witnesses, and requiring the production or delivery of
documents, and punishing defaults by witnesses, and allowing costs and charges
and expenses to witnesses, as the Coui't which made the order for winding-up the
company has ; and the examination so taken shall be returned or reported to such
last -mentioned Coiu't in such manner as it directs.

[The tvords in italics repealed by S. L. Ji. Act, 1875.)

127. The Court may direct the examination in Scotland of any person for the Court may
time being in Scotland, whether a contributory of the company or not, in regard to order the
the estate, dealings, or affairs of any company in the course of being wound up, or exaiiuiiation
in regard to the estate, dealings, or affairs of any person being a contributory of "i X"^^"-''*^'^^ ^^
the company, so far as the company may be interested therein by reason of his Scotland,
being such contributory, and the order or (iommission to take such examination shall p. 523

be directed to the sheriff of the county in which the person to bo examined is resid-
ing or happens to be for the time, and the sheriff shall summon such person to
appear before him at a time and place to bo specified in the summons for examination
upon oath as a witness or as a haver, and to produce any books, papers, deeds,
or documents called for which may be in his possession or power, and the sheriff
may take such examination either orally or upon written interrogatories, and shall
report the same in writing in the usual form to the Court, and shall transmit with
such report the books, papers, deeds, or documents produced, if the originals
thereof are required and specified by the order, or otherwise such copies thereof or
extracts therefrom, authenticated by the sheriff, as may be necessary ; and in case
any person so summoned fails to appear at the time and place specified, or appearing
refuses to be examined or to make the production required, the sheriff shall proceed
against such person as a witness or haver duly cited, and failing to appear or
refusing to give evidence or make production may be proceeded against by the law
of Scotland ; and the sheriff shall be entitled to such and the like fees, and the
witness shall be entitled to such and the like allowances, as sheriffs when acting
as commissioners under appointment from the Court of Session and as witnesses
and havers are entitled to in the like cases according to the law and practice of
Scotland : if any objection is stated to the sheriff by the witness, either on the
ground of his incompetency as a witness, or as to the production required to be
made, or on any other ground whatever, the sheriff may, if he thinks fit, report
such objection to the Court, and suspend the examination of such witness until such
objection has been disposed of by the Coui-t.

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

128. Any affidavit, affirmation, or declaration required to be sworn or made Affidavits, &c.
under the provisions or for the piui^oscs of this part of this Act may be la-tt-fully may be^ sworn
sworn or made in Great Britain or Ireland, or in anj' colony, island, plantation, or in Ireland,
place under the dominion of her Majesty in foreign parts, before any Coiu-t, judge, Scotland, or
or person lawfiilly authorized to take and receive affidavits, affinuations, or declara- the colonies
tions, or before any of her Majesty's consuls or vice-consuls in any foreign parts before any
out of her Majesty's dominions, and all Coiu-ts, jiidges, ju.stices, commissioners, and competent
persons acting judicially shall take judicial notice of the seal or stamp or signatiu-e Court or

(as the case may be) of any such Com-t, jiidg-e. person, consid, or ^'ice-cons^d attached, person,
appended, or subscribed to any such affida^-it, affirmation, or declaration, or to any p. 181
other docimient to be used for the purposes of this part of this Act.

Voluntary Windiny-up of Company.

129. A company under this Act may be wound Tip volimtarily,

(1.) Whenever the period, if any, fixed for the dm-ation of the company by the Circumstances
articles of association expii-es, or whenever the event, if anj^, occiu-s, upon under which
the occuia-ence of which it is provided by the articles of association that company may
the company is to be dissolved, and the company in general meeting has be wmmd up
passed a resolution reqtiiring the company to be wound up volimtarily : voluntarily.

(2.) "Whenever the company has passed a special resolution reqiuring the p_ q\^
company to be wound up voluntarily :

(3.) Wlienever the company has passed an extraordinary resolution to the effect
that it has been proved to theu" satisfaction that the company cannot by
reason of its liabilities continue its business, and that it is adAisable to
wind up the same :

For the purposes of this Act any resolution shall be deemed to be extraordinary
which is passed in such manner as woiild, if it had been coniii-med by a subsequent
meeting, have constituted a special resolution as hereinbefore defined.

P. 3e



786



Appendix A.



Commence-
ment of
voluntary
■winding-up.
p. 626
Effect of
voluntary
"winding-up
on status of
company.
Notice of
resolution to
wind up
voluntarily.

Consequences
of voluntary
Tvinding-up.
p. 648



p. 651
p. 642



Effect of
"windiiig-up
on sliarc!
capital of
company
limited by
guarantee.
Power of
company to
delegate
authority to
appoint
liquidators.



130. A voluntary winding-up shall be deemed to commence at the time of the
passing of the resolution authorizing such winding-up.

131. Whenever a company is wound up volimtarily the company shall, from the
date of the commencement of such winding-up, cease to carry on its business,
except in so far as may be required for the beneficial winding-up thereof, and all
transfers of shares, except transfers made to or M-ith the sanction of the liquidators,
or alteration in the status of the'members of the company, taking place after the
commencement of such winding-up, shall be void, but its corporate state and all its
coi-porate powers shall, notwithstanding it is othei-wise provided by its regulations,
continue until the affairs of the company are wound up.

132. Notice of any special resolution or extraordinary resolution passed for
winding-up a company voluntarily shall be given by advertisement as respects
companies registered in England in the London Gazette, as respects companies
registered in Scotland in the Edinburgh Gazette, and as respects companies
registered in Ireland in the Dublin Gazette.

133. The following consequences shall ensue upon the voluntary winding-up of
a company :

(1.) The property of the company shall be applied in satisfaction of its liabilities
pari passu, and, subject thereto, shall, unless it be otherwise pro\dded by
the regulations of the company, be distributed amongst the members
according to their rights and interests in the company :

(2.) Liquidators shall be appointed for the piu-pose of winding-up the affairs of
the company and distributing the property :

(3.) The company in general meeting shall appoint such persons or person as it
thinks fit to be liquidators or a lic^uidator, and may fix the remuneration
to be paid to them or him :

(4.) If one person only is appointed, all the provisions herein contained in
reference to several liquidators shall apply to him :

(5.) Upon the appointment of liquidators, all the powers of the directors shall
cease, except in so far as the company in general meeting or the liquidators
may sanction the continuance of such powers :

(6.) When several liquidators are appointed, every power hereby given may be
exercised by such one or more of them, as may be determined at the time
of their appointment, or in default of such detennination by any number
not less than two :

(7.) The liqviidators may, without the sanction of the Court, exercise all powers
by this Act given to the official liquidator :

(8.) The liquidators may exercise the powers hereinbefore given to the Court of
settling the list of contributories of the company, and any list so settled
shall be i;r!;Ma/«cie evidence of the liability of the persons named therein
to be contributories :

(9.) The liquidators may at any tune after the passing of the resolution for
winding-up the company, and before they have ascertained the sufficiency
of the assets of the company, call on all or any of the contributories for the
tune being settled on the list of contributories to the extent of their lia-
bility to pay all or any sums they deem 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 rights of the contributories amongst
themselves, and the liquidators may in making a call take into considera-
tion 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:

(10.) The liquidators sliall pay the debts of the company, and adjust the rights of
the contributories amongst themselves.

134. Where a company limited by guarantee, and having a capital divided into
shares, is being wound up vohmtarily, any share capital that may not have been
called up sliall be deemed to be assets of the comjiany and to be a specialty debt
due from each member to the company to the extent of any sums that may be
unpaid on any shares held by him, and payable at such time as may be appointed
by tiic liipiidatoi's.

135. A company about to be wound up voluntarily, or in the course of being
wound up voluntarily, may, by an extraordinary resolution, delegate to its creditors,
or to any committee of its creditors, the power of appointing liquidators or any of
them, and siip])]ying any vacancies in the appointment of liquidators, or may by a
like r('soluti<m ('utrr into any aiTangement'with respect to tlie powers to be exer-
cised by the liquidators, and the manner in which they are to be exercised ; and any
act donr^ by th(^ creditors, in pursuance of such delegated power, shall have the
same effect as if it liad hcvn done by tlie company.



The Companies Act, 1862. Act of 1862 787

136. Any aiTangcment entered into between a company ahtnit to be wound np Arrangement
voluntarily, or in the course of being wound up voluntarily, and its creditor.s, shall when binding
be binding on the company if sanctioned by au extraordinary resolution, and on the on creditors,
creditors if acceded to by three-fourths in numT)cr and value of the creditors, sub-
ject to such right of apjDeal as is liereiuaftcr mentioned.

137. Any creditor or contributory <jf a company that has in manner aforesaid Power of
entered into any an-angement with its c:reditors may, within three weeks from the creditor or
date of the completion of such arrangement, apj^oal to the Court against such contributory
aiTangement, and the Coiu-t may thereupon, as it thinks just, amend, vary, or to appeal,
confirm the same.

138. Where a company is being wound up voluntarily, the liquidators or any Power for
contributory of the company may apply to the Court in England, Ireland, m- Scot- liquidators or
land, or to the Lord Ordinary on the bills in Scotland, in time of vacation, to deter- contributories
mine any question arising in the matter of such winding-up, or to exercise, as in voluntary
respects the enforcing of calls, or in respect of any other matter, all or any of the winding-up to
powers which the Coiu't might exercise if the company were being wound up by the apply to
Court ; and the Court or Lord Ordinary, in the case aforesaid, if satisfied that the Court,
determination of sucli question, or the required exercise of power, 'will be just and p_ 554
beneficial, may accede, wholly or partially, to such application, on such tenns and

subject to such conditions as the Court tliinks fit, or it may make such other order,
interlocutor, or decree on such application as the Court thinks just.

{Js to meaning 0/" Court,'' see C. [W. U.) Act, 1890, ss. 32 (2) 1.)

139. AYhcre a company is being wound up voluntarily the liquidators may from Power of
time to time, during the continuance of such winding-up, summon general meetings liquidators to
of the company for the piu'pose of obtaining the sanction of the company l)y special "^'^'^ general
resolution or extraordinary resolution, or for any other purposes they think fit ; and meeting.

in the event of the winding-iip continuing for more than one year, the liquidators
shall summon a general meeting of the company at the end of the first year, and of
each succeeding j^ear from the commencement of the winding-up, or as soon there-
after as may be convenient, and shall lay before such meeting an account showdng
their acts and dealings, and the manner in which the winding-up has been con-
ducted during the preceding year.

140. If any vacancy occui-s in the office of liquidators appointed by the company. Power to fill
by death, resignation, or otherwise, the company in general meeting may, subject up vacancy in
to any arrangement they may have entered into with their creditors, fill up such liquidators,
vacancy, and a general meeting for the purpose of filling up such vacancy may be

convened by the continuing liquidators, if any, or by any contributory of the com-
pany, and shall be deemed to have been duly held if held in manner prescribed by
the rogulations of the company, or in such other manner as may, on application by
tile continuing licpiidator, if any, or by any contributorj^ of the company, be deter-
mined by the Coiu-t.

141. If from any cause whatever there is no liquidator acting in the case of a Power of
voluntary winding-up, the Court may, on the application of a contributory, appoint Court to

a liquidator or liquidators ; the Court may also, on due cause shown, remove appoint liqui-
any liquidator, and appoint another liquidator to act in the matter of a voluntary dators.
wdnding-up.

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

142. As soon as the affairs of the company are fully wound up, the liquidators Liquidators
shall make up an account showing the manner in which such winding-up has been on conclusion
conducted, and the property of the company disposed of; and thereupon they shall of winding-up
call a general meeting of the company for the purpose of ha^dng the account laid to make up
before them, and hearing any explanation that may bo given by the liquidators : an account,
the meeting shall be called by advertisement, specifjdng the time, place, and object p. 665

of such meeting ; and such advertisement shall be published one month at least
pre-\aously to the meeting, as respects companies registered in England in the
London Gazette, and as respects companies registered in Scotland in the Edinbvu'gh
Gazette, and as respects companies registered in Ireland in the Dublin Gazette.

143 . The liquidators shall make a return to the registrar of such meeting having Liquidators
been held, and of the date at which the same was held, and on the expiration of to report
three months from the date of the registration of such return the company shall be meeting to
deemed to be dissolved : if the liquidators make default in making such return to registrar,
the registrar, they shall incm* a penalty not exceeding five pounds for every day p. 665
during which such default continues.

3e2



788



Appendix A.



Costs of
voluntary
]iqviidation.
p. 664
Saving of
rights of
creditors.
p. 39
Power of
Coiu't to adopt
proceedings
of voluntary
Avinding-up.



144. All costs, charges, and expenses properly incurred in the voluntary
■v^"inding-up of a company, including the remuneration of the liquidators, shall be
payable out of the assets of the company in priority to all other claims.

145. The voliintary -winding-up of a company shall not be a bar to the right of
any creditor of svich company to have the same wound up by the Court, if the
Coui-t is of opinion that the rights of such creditor will be prejudiced by a voluntary
winding-up.

146. Where a company is in course of being Avound up voluntarily, and pro-
ceedings are taken for the purpose of having the same wound up by the Court, the
Cotirt may, if it thinks fit, not Avith standing that it makes an order directing the
company to be wound up by the Court, provide in such order or in any other order
for thcudoiDtion of all or any of the proceedings taken in the course of the voluntary
Avinding-up.



Power of
Court on ap-
plication to
direct

Avinding-up,
subject to
supervision,
pp. 57, 668
Petition for
Avinding-up,
subject to
supervision.
p. 668
Court may
have regard
to wishes of
creditors,
pp. 78, 347



Power to
Court to
ajipoiut addi-
tiiiiial liqui-
daturs in
winding-up
subject to
supervision.
p. 668

Effect of order
of Court for
winding-up
subject to
supervision.



Winding-up subject to the Supervision of the Court.

147. When a resolution has been passed by a company to Avind up voluntarily,
the Court may make an order directing that the voluntary Avinding-vip should
continue, but subject to such supervision of the Court, and with such liberty for
creditors, contributories, or others to apply to the Court, and generally upon such
terms and subject to such conditions as the Coiu't thinks just.

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

148. A petition, praying wholly or in part that a voluntary winding-up should
continue, but subject to the supervision of the Court, and which Avinding-up is
hereinafter referred to as a winding-up siibject to the supervision of the Coiu't,
shall, for the purpose of giving jiuisdiction to the Court over suits and actions, be
deemed to be a petition for Avindiug-up the company by the Court.

149. The Coui-t may, in determining whether a company is to be woimd up
altogether by the Coui-t or subject to the supervision of the Court, in the appoint-
ment of liquidator or liquidators, and in all other matters relating to the Avinding-
up subject to supervision, have regard to the wishes of the creditors or contributories
as proved to it by any sufficient cAidence, and may direct meetings of the creditors
or contributories to be summoned, held, and regulated in such manner as the Coirrt
directs, for the purpose of ascertaining their wishes, and may appoint a person to act
as chairman of any such meeting, and to report the result of such meeting to the
Court : in the case of creditors, regard shall be had to the value of the debts due to
each creditor, and in the case of contributories to the nvimber of votes conferi'ed on
each contributory by the regulations of the company.

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

150. "WTiere any order is made by the Court for a Avinding-up subject to the
supcrAision of the Court, the Court may, in such order or in any subsequent order,
appoint any additional liquidator or liquidators ; and any liquidators so appointed
by the Coiu't shall haA'e the same poAvers, be subject to the same obligations, and
in all respects stand in the same position as if they had been appointed by the
company : the Coiu't may from time to time remoA'e any liquidators so appointed
by the Court, and fill up any A'acancy occasioned by such removal, or by death or
resignation.

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

151. Where an order is made for a winding-up subject to the supervision of the
Court, the liquidators appointed to conduct such Avinding-up may, subject to any
I'cstrictions imposed by the Coiu't, exercise all their poAvcrs, Avithout the sanction
or intervention of the Coiu't, in the same manner as if the company were being
wound up altogether A'oluntarily ; but, save as aforesaid, any order made by the
Court for a Avinding-up subject to the supervision of the Court, shall "for all



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 103 of 134)