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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purposes, including the staying of actions, suits, and other proceedings, be deemed
to be an order of the Court for Avinding-up the company by the Court, and shall
confer ftill iiuthority on the Court to makc^ calls, or to enforce calls made by the
liquidatiirs, and to (wcrcise all other poAvers Avliich it might have exercised if an
order liud been made for Avinding-up the company altogether by the Coiu't ; and in
the j(;onstruction of the provisions Avhereby the Court is empoAvered to direct any
act or thing to be done to or in faA'our of the official liquidators, the expression
official liquidators shall be doomed to mean the liquidat(,>rs conducting the winding-
up subject to the supervision of the Court.



The Companies Act, 1862. Act of 1862 78 T

152. Where an order has boon made for the winding-up of a company siiLjoct to Appointment
the super-vasion of the Court, and such order is afterwards superseded by an order in certain
directing- the company to be wound up compulsoriiy, the Coui-t may in such last- cases of volun-
montionod order, or in any subsequent order, appoint the voluntary liquidators or tary liquida-
any of tliom, either provisionally or ponnanentlj^, and either with or Mathout the tors to office
addition of any other persons, to be official liquidators. of official

liquidators.

Supplemental Trovisions.

153. Wlicre any company is being wound up by the Court or subject to the Dispositions
supervision of the Court, all dispositions of the property, effects, and things in action after the com-
of the company, and every transfer of shares, or altei-ation in the status of the mencementof
members of the company, made between the commencement of the winding-up and the winding-
tlic order for winding-up, shall, unless the Cotu-t otlier-\vise orders, be void. up avoided.

164. Where any company is being wound up, all books, accounts, and docu- 'J^Iiq ljt)oks of
ments of the company and of the liquidators shall, as between the contributories of h^q comi^any
the company, be pr'uiid facie evidence of the truth of all matters purporting to be to be evidence,
therein recorded. p_ m

155. Where any company has been wound up under this Act, and is about to be . , ■,., , ,
dissolved, the books, accounts, and documents of the company and of the liqui- t y.'^ -l. "
dators may be disposed of in the following way ; that is to say, where the company " ' ,
has been wound up by or subject to the supervision of the Coru-t, in such way as '•. ^' ' ^
the Coui't directs, and where the company has been wound \vp voluntarily, in such ,-.

way as the company by an extraordinary resolution directs ; but after the lapse of ' P 7*

five years fi'om the date of such dissolution, no responsibility shall rest on the P- ""^

company or the liquidators, or any one to whom the custody of such books,

accounts, and documents has been committed, by reason that the same or any of

them cannot be made forthcoming to any party or parties claiming to be interested

therein.

156. Where an order has been made for winding-up a company by the Court or Inspection of
subject to the super^dsion of the Coiu-t, the Court may make such order for the in- books,
spection by the creditors and contributories of the company of its books and papers p. 112

as the Court thinks just, and any books and papers in the possession of the com-
pany may be inspected by creditors or contributories in conformity ^vith the order
of the Court, but not further or otherwise.

157. Any person to whom anything in action belonging to the company is as- Power of
signed in pursuance of this Act may bring or defend any action or smt relating to assignee to
such thing in action in his own name. sue.

158. In the event of any company being wound up under this Act, all debts j^gi^i;;^ of all
payable on a contingency, and all claims against the company, present or futiu-e, closcriptions
certain or contingent, ascertained or sounding only in damages, .shall be admissible ^q ijg i^roved
to proof against the company, a just estimate being made, so far as is possible, of „_ 359

the valiie of all .such debts or claims as may be subject to any contingency or sound
only in damages, or for some other reason do not bear a certain value.
{An to insolvent companies, see Jud. Act, 1875, s. 10.)

159. The liqiiidators may, with the sanction of the Court, where the company is General
being wound up by the Court or subject to the supervi,sion of the Coiu-t, and witli scheme of
the sanction of an extraordinary resolution of the company where the company is liquidation
being wound up altogether voluntarily, pay any classes of creditors in fidl, or make may be sane-
such compromise or other arrangement as the liquidators may deem expedient with tioned.
creditors or persons claiming to be creditors, or persons having or alleging them- p_ 559
selves to have any claim, present or futiu-e, certain or contingent, ascertained or

sounding only in damages against the company, or whereby the company may be
rendered liable.

{Amended by C. {TF. U.) Act, 1890, s. 12.)

160. The liquidators may, with the sanction of the Coirrt where the company is Power to
being wound up by the Coiu-t or siibject to the supervision of the Coiu-t, and \\ith conqiromise.
the sanction of an extraordinary resolution of the company where the company is „ ggg
being wound up altogether voluntarily, compromise all calls and liabilities to calls,

debts, and liabilities capable of resulting in debts, and all claims, whether present
or futm-e, certain or contingent, ascertained or sounding only in damages, siib.sist-
ing or -supposed to subsist between the company and any contributory or alleged
contributory, or other debtor or person apprehending liability to the company, and
all questions in any way relating to or attocting the assets of the company or the
winding-up of the company, upon the receipt of such .sums, payable at such times,



790



Appendix A.



and generally upon such tenns as may be agreed upon, with power for the liqui-
dators to take any security for the discharge of such debts or liabilities, and to give
complete discharges in respect of all or any such calls, debts, or liabilities.
{Amended by C. {IV. U.) Act, 1890, s. 12.)

Power for 161. Where any company is proposed to be or is in the course of being wound

liquidators to up altogether voluntarily, and the whole or a portion of its business or property
accept shares, is proposed to be transferred or sold to another company, the liquidators of the
&c. as a con- first-mentioned company may, with the sanction of a special resolution of the com-
sideration for pany by whom they were appointed, conferring either a general authority on the
sale of pro- liquidators, or an authority in respect of any particular arrangement, receive in
perty of comijensation or part compensation for such transfer or sale shares, policies, or

company. other like interests in such other company, for the purpose of distribution amongst

the members of the company being wound up, or may enter into any other arrange-
ment whereby the members of the company being wound up may, in heu of
receiving cash, shares, policies, or other like interests, or in addition thereto,
participate in the profits of or receive any other benefit from the purchasing com-
pany ; and any sale made or arrangement entered into by the liquidators in
pursuance of this section shall be binding on the members of the company being
wound up ; subject to this proviso, that if any member of the company being wound
up who has not voted in favour of the special resolution passed by the company
of which he is a member at either of the meetings held for passing the same
expresses his dissent from any such special resolution in writing addressed to
the liquidators or one of them, and left at the registered oSice of the company
not later than seven days after the date of the meeting at which such special
resolution was passed, such dissentient member may require the liquidators to do one
of the following things as the liquidators may prefer ; that is to say, either to
abstain from carrying such resolution into efi^ect, or to purchase the interest held
by such dissentient member at a price to be determined in manner hereinafter men-
tioned, such purchase-money to be paid before the company is dissolved, and t<3
be raised by the liquidators in such manner as may be determined by special
resolution : no special resolution shall be deemed invalid for the purposes of this
section by reason that it is passed antecedently to or concurrently with any resolu-
tion for wdnding-up the company, or for appointing liquidators ; but if an order be
made within a year for winding-up the company by or subject to the supervision
of the Court, such resolution shall not be of any validity unless it is sanctioned
by the Court.

162. The price to be paid for the purchase of the interest of any dissentient
member may be determined by agreement, but if the parties dispute about the same
such disjiute shall be settled by arbitration, and for the purposes of such arbitration
the provisions of "The Companies Clauses Consolidation Act, 1845," with respect to
the settlement of disputes by arbitration, shall be incorporated with this Act ; and
in the construction of such provisions this Act shall be deemed to be the special
Act, and " the company" shall mean the company that is being wound up, and any
appointment by the said incorporated provisions directed to be made under the hand
of the secretary, or any two of the directors, may be made uuder the hand of the
liquidator, if only one, or any two or more of the liquidators if more than one.

163. Where any company is being woimd up by the Court, or subject to the
supervision of the Court, any attachment, sequestration, distress, or execution put
in force against the estate or effects of the company after the commencement of the
winding-up shall be void to all intents.

164. Any siicli conveyance, mortgage, delivery of goods, payment, execution, or
other act relating to propertj' as W(udd, if made or done by or against any indi-
viduiil trader, be deemed, in the event of his bankruptcy, to have been made or
done Ijy way of undue or fraudident preference of the cx-editors of such trader, shall,
if made or done; by or against any company, be deemed, in the event of sucli com-
pany l)eing wound uj) under this Act, to have been made or done by way of undue
or fraudulent preference of the creditors of such company, and shall be invalid
accordingly ; and for the pui-poses of this secticm the presentation of a petition for
winding- uj) a ('ompany shall, in the C'ase of a company being wound up by tlio
Court or subject tu the supervision of the Court, and a resolution for winding-up
the company sliall, in the ease of a voluntjiry winding-up, be deemed to correspond
with the act (jf bankniptcty, in the case of an individual trader ; and any conveyance
or assignment made by any company formed under this Act of all its estate and
fffcctH to trustees for tlie benefit of all its creditors shall be void to all intents.

Power of 165. ir/nrr in the course of the icindiiKj-up of anij company under this Act, it appears

Court to that any past or present director, nuDtiiyer, njjieial or oilier liquidator, or a)nj officer of



Mode of

determining

price.



Certain
attachments,
sequestra-
tions, and
executions
to be void.
pp. 826, 335.
Fraudulent
preference.
p. 647



The Companies Act, 1862. Act of 1862 791

such company, lias misapplied or retained in his own hands, or hecome Uahle or acconntahle assess
for any moneys of the company, or been guilty of any misfeasance or breach of trust in damages
relation to the company, the Court may, on the application of any liquidator, or of any against delin-
creditor or contributory of the company, notivithstandiny that the offence is one for uhich quont direc-
ihe offender is criminally rcsponsihlc, examine into the conduct af such director, manayer, tors and
or other officer, and compel him to repay any moneys so misapplied or retained, or for uhich officers.
he has hecome liable or accountable, together uith interest after such rate as the Court ^ 539
thinks just, or to contribute such sums of money to the assets of the company by way of
compensation in respect of such misapplication, retainer, misfeasance, or breach of trust,
as the Court thinks just.

{Repealed as to England and Wales by C. {W. U.) Act, 1890, s. 33, andreplaced
by s. 10.)

166. If any director, officer, or contributory of any company wound up under Penalty on
this Act destroys, mutilates, alters, or falsifies any books, papers, writings, or falsification
securities, or mak(>s or is privy to the making of any false or fraudulent entry in of books,
any register, book of account, or other document belonging to the company with

intent to defraud or deceive any person, every person so offending shall be deemed
to be guilty of a misdemeanor, and upon being convicted shall bo liable to imprison-
ment for any term not exceeding two years, with or without hard labour.

167. Where any order is made for winding-up a company by the Court or Prosecution
subject to the supervision of the Coiu't, if it appear in the course of such winding- of delinquent
up that any past or present director, manager, ofEcer, or member of such company directors in
has been guilty of any offence in relation to the company for which he is criminally the case of
responsible, the Coiu't may, on the application of any person interested in such winding-up
winding-up, or of its own motion, direct the official liquidators, or the liquidators by Court,
(as the case may be), to institute and conduct a prosecution or prosecutions for such p 551
offence, and may order the costs and expenses to be paid out of the assets of the

company.

168. Wliere a company is being wound up altogether voluntarily, if it appear Prosecution
to the liquidators conducting such winding-up that any past or present dh'ector, of delinquent
manager, officer, or member of such company has been guilty of any offence in directors, &:c.
relation to the company for which he is criminally responsible, it shall bo lawful in case of
for the liquidators, with the previous sanction of the Court, to prosecute such voluntary
offender, and all expenses properly incurred by them in such prosecution shall be winding-up.
payable out of the assets of the company in priority to all other liabilities. p 551

169. If any person, upon any examination upon oath or affirmation authorized p i, 1.
under this Act, or in any affida^dt, deposition, or solemn affirmation in or about the ,. /
■winding-up of any company tinder this Act, or other\\'ise in or about any matter ^ J ^'
arising- imder this Act, wilfu.lly and comiptly gives false evidence, he shall, upon
conviction, be liable to the penalties of -wdlful perjury.

Foiver of Courts to make Rules.

170. [Power of Lord Chancellor of Great Britain to make rules.]

[Extended by Companies Act, 1867, s. 20 ; but repealed by S. L. R. Act, 1881.)

171. In Scotland the Court of Session may make such niles concerning the mode Power of
of winding-up as may be necessary by Act of Sederunt ; but, until such rules are Court of
made, the general practice of the Court of Session in suits pending in such Com-t .Session in
shall, so far as the same is applicable, and not inconsistent with this Act, apply to Scotland to
all proceedings for winding-up a company, and official liquidators shall in all make rules,
respects be considered as possessing the same powers as any trustee on a bankrupt

estate.

{Extended by Companies Act, 1867, s. 20.)

172. [Power to make rules in Stannaries Court.]

{Extended by Companies Act, 1867, s. 20 ; but repealed by Stannaries Act,
1896, s. 5.)

173. In Ireland the Lord Chancellor of Ireland maj', as respects the winding-up Power of Lord
of companies in Ireland, with the ad-\ace and consent of the Master of the Rolls in Chancellor of
Ireland, exercise the same power of making rules as is by this Act hereinbefore Ireland to
given to the Lord Chancellor of Great Britain ; but until such rules are made the make rules,
general practice of the Coiu-t of Chancery in Ireland, inchiding the practice hitherto

in use in Ireland in winding-iip companies, shall, so far as the same is applicable
and not inconsistent with this Act, apply to all proceedings for winding-up a
company.

{Extended by Companies Act, 1867, s. 20.)



"^92 Appendix A.



PART V.

Registeation Office.

Constitution 174. Tlie registration of companies under this Act shall be conducted as follows ;

of registration (that is to say,)

office. (1.) The Board of Trade may from time to time appoint such registrars, assistant

registrars, clerks, and servants as they may think necessary for the regis-
tration of companies under this Act, and remove them at j^leasure :
(2.) The Board of Trade may make such regulations as they think fit w^ith respect
to the diities to be performed by any such registrars, assistant registrars,
clerks, and servants as aforesaid :
(3.) The Board of Trade may from time to time determine the places at which
offices for the registration of companies are to be established, so that there
be at all times maintained in each of the three parts of the United Kingdom
at least one such office, and that no company shall be registered except at
an office within that part of the United Kingdom in which by the memo-
randmn of association the registered office of the company is declared to be
estabhshed ; and the Board may require that the registrar's office of the
Coiurt of the Vice -Warden of the Stannaries shall be one of the offices for
the registration of companies formed for working mines within the juris-
diction of the Court :
(4.) The Board of Trade may from time to time direct a seal or seals to be pre-
pared for the authentication of any documents required for or connected
with the registration of comj)anies :
(5.) Every person may inspect the documents kept by the Registrar of Joint Stock
ComjDanies ; and there shall be paid for such inspection such fees as may
be appointed by the Board of Trade, not exceeding one shilling for each
inspection ; and any person may require a certificate of the incorporation
of any company, or a copy or extract of any other document or any part of
any other document to be certified by the registrar ; and there shall be
paid for such certificate of incorporation, certified copy, or extract such fees
as the Board of Trade may appoint, not exceeding five shillings for the
certificate of incoiijoration, and not exceeding sixpence for each folio of
such copy or extract, or in Scotland for each sheet of two hundred words :
(6.) The existing registrar, assistant registrars, clerks, and other officers and
servants in the office for the registration of joint stock companies shall,
during the pleasiu'e of the Board of Trade, hold the offices and receive the
salaries liitherto held and received by them, but they shall in the execution
of thcu' duties conform to any regulations that may be issued by the Board
of Trade :
(7.) There shall be paid to any registrar, assistant registrar, clerk, or servant
that may hereafter be employed in the registration of joint stock com-
panies such salary as the Board of Trade may, with the sanction of the
Commissioners of the Treasury, direct :
(8.) Whenever any act is herein directed to be done to or by the Registrar of
Joint Stock Companies, such act shall tmtil the Board of Trade othermso
dii-ects, be done in England to or by the existing Registrar of Joint Stock
Companies, or in liis absence to or by such person as the Board of Ti-ade
may for the time being aiithorize ; in Scotland to or by the existing
Registrar of Joint Stock Companies in Scotland ; and in Ireland to or by
the existing Assistant Registrar of Joint Stock Companies for Ireland, or
by such person as the Board of Trade may for the time being' authorize in
Scotland or Ireland, in the absence of the registrar ; but in the event of the
Board of Trade altering the constitution of the existing registry office, sucli
act shall be done to or by such officer or officers and at such place or places
with reference to the local situation of the registered offices of the com-
pames to be registered as the Board of Trade may appoiat.

PART VI.

Application of Act to Comi'anies eegisteeed under the Joint Stock
CoMi'ANiES Acts.

Definition of 175. Tlic expression " Joint Stock Companies Acts" as used in this Act shall

Joint Stock mean '' The Joint Slock C'lmpauies Act, l.S.'jG," " The Joint Stock Companies Acts,



The Companies Act, 1862. Act of 1862 793

IS^G, 1857," "Tlie Joint Stock Eanking- Companies Act, 1857," and "The Act Companies
to ciialdo Joint Stock Banking Companies to be formed on tlio Principle of Limited Acts.
Liability," or any one or more of such Acts, as the case may require ; but shall not
inchido the Act passed in the ei<^-hth year of the rcigTi of her present Majesty,
chapter (me hundred and ten, and intituled " An Act for the Registration, Incor-
poration, and Regulation of Joint Stock Companies."

176. Subject as hereinafter mentioned, this Act, with the exception of Table A. Application of
in the first Schedide, shall apply to companies formed and registered under the said Act to com-
Joint Stock Companies Acts, or any of them, in the same manner in the case of a panics formed
limited company as if such company had been formed and registered under this Act under Joint
as a company limited by shares, and in the case of a company other than a limited Stock Com-
comjjany as if such C(mipaiiy had been formed and registered as an unlinuted com- panics Acts,
pany under this Act, witli this qualification, that wherever reference is made p_ jq
expressly or impliedly to the date of registration, such date shall be deemed to refer

to the date at which such companies were respectively registered under the said
Joint Stock Companies Acts or any of them, and the power of altering regulations
by special resolution given by this Act shall, in the case of any company formed
and registered imder the said Joint Stock Conqianies Acts or any of them, extend
to alti'iiiig any provisions contained in the Table marked B. annexed to " The Joint
Stock Conqjanics Act, 185G," and shall also in the case of an unlimited company
formed and registered as last aforesaid extend to altering any regidations relating
to the amount of capital or its distribution into shares, notwithstanding such
regulations are contained in the memorandum of association.

177. This Act shall apply to companies registered but not formed under the said Application of
Joint Stock Companies Acts or any of them, in the same manner as it is hereinafter Act to com-
declared to apply to companies registered but not formed imder this Act, with this panics regis-
qualification, that wherever reference is made expressly or unpliedly to the date of tered under
registration, such date shall be deemed to refer to the date at which such companies Joint Stock
were respectively registered under the said Joint Stock Companies Acts or any of Companies
them. _ Acts.

178. Any company registered under the said Joint Stock Companies Acts or any jyjg^g of trans-
of them may cause its shares to be transferred in manner hitherto in use, or in such fenino- shares
other manner as the company may direct. °



PART VII.
Companies atjthorized to reoister under this Act.

179. The following regulations shall be observed with respect to the registration Regulations
of companies under this part of this Act ; (that is to say,) as to registra-

(1.) No company ha\Tng- the liability of its members limited by Act of Parliament tion of exist-
or letters patent, and not being a joint stock company as hereinafter defined, ing com-
shall register under this Act in piu-suance of this part thereof : panies.

(2.) No company having the liability of its members limited by Act of Parliament
or by letters patent shall register under tliis Act in pursuance of this part
thereof as an iinlunited company, or as a company limited by guarantee :

(3.) No company that is not a joint stock company as hereinafter defined shall in
pursuance of this part of this Act register under this Act as a company
limited by shares :

(4.) No company shall register under this Act in piu-suance of this part thereof
unless an assent to its so registeriag is given by a majority of such of its
members as may be present, personally or by proxy, in eases where proxies
are allowed by the regulations of the company, at some general meeting



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 104 of 134)