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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commencement of such term.

4. In the winding-up of any company imder the Companies Acts, 1862 to 1886,
wlioso registered offico is in Scotland, and where the winding-up shall commence
after the passing of this A(^t, the general and special rules in regai'd to voting and
ruuking for payment of dividends, provided by the Bankruptcy (Scotland) Act,



The Companies Act, 1886. Act of 1886 8-39

1856, sections forty-nine to sixty-six inclusive, or any other rules in regard thereto
which may be in force for the time being in the seqiiestration of the estates of
bankrupts in Scotland, shall, so far as consistent with the tenor of the said recited
Acts, apply to creditors of such companies voting in matters relating to the
■winding-up, and ranking for payment of dividends ; and for this purpose seques-
tration shall bo taken to mean licxuidation, trustee to mean liquidator, and sheriff
to mean the Court. ^ • t <•

5. Wlierever the expression "the Court of Session" occurs in the said recited Jurisdiction
Acts, or the expression "the Court" occurring therein or in this Act refers to the of the lord
Com-t of Session in Scotland, it shall mean and iuclude either division thereof, or, ordinary on
in the event of a remit to a permanent lord ordinary, as hereinafter provided, such the biUs in
lord ordinary, during session, and in time of vacation the lord ordinary on the bills ; vacation,
and in regard to orders or judgments pronounced by the said lord ordinary on the

bills in vacation, the following provisions shall have effect : —

(1.) No order or judgment pronounced by the said lord ordraaiy in vacation,
under or by virtue, in whole or in part, of the following sections of the
said recited Acts, shall be subject to review, reduction, suspension, or stay
of execution, vkldicct, of the Companies Act, 1862, sections ninety-one, 25 & 26 Vict,
one hundred and seven, one hundred and fifteen, one hundred and seventeen, C. 89.
and one hundred and twenty- seven, and section one hundred and forty-nine
so far as it authorizes the Court to direct meetings of creditors or con-
tributories to be hold, and that portion of section two of the Joint Stock 33 & 34 v ict.
Companies Arrangement Act, 1870, which authorizes the Court to order c. 104.
that a meeting of creditors or class of creditors shall be summoned ; and
also sections one hundred and twenty-two and one hundred and twenty-three
of the Companies Act, 1862, so far as they may affect the sections above
enumerated.
(2.) All other orders or judgments pronounced by the said lord ordinaiy in
vacation (except as after mentioned) shall be subject to review only by
reclaiming note, in common form, j)resented (notwithstanding the terms of
section one hundred and twenty-four of the Companies Act, 1862) within
fourteen days from the date of such order or judgment : Provided always,
that such orders or judgments pronounced by the said lord ordinary in
vacation, under or by virtue, in whole or in part, of the following sections
of the Companies Act, 1862, shall, from the dates of such orders or
judgments, and notwithstanding any reclaiming note against the same, be
carried out and receive effect till such reclaiming note be disposed of by
the Court, videlicet, sections eighty-five, eighty-seven, eighty-nine,
ninety-three (except in regard to the removal or remuneration of liqui-
dators), ninety-five, ninety-six (except in regard to the pov/er to sell),
one hundred, one hundi-ed and eighteen, first part of one hundi-ed and
forty-one, one hundred and forty-seven, one hundi-ed and fifty (except in
regard to the removal of liquidators and the filling up of vacancies caused
by such removal), one hundred and ninety-seven, one hundred and ninety-
eight, and two hundred and one ; and also sections one himdred and
twenty-two and one hundred and twenty-three of the Companies Act,
1862, so far as they may aft'ect the sections above enumerated.
Provided that nothing in this section contained shall in any way affect the
provisions of section one hundred and twenty- one of the Companies Act, 1862, in
reference to decrees for payment of calls in the winding-up of companies, whether
voluntarily or by or subject to the supervision of the Court. _ _

6. When the Court makes a winding-up or a supervision order, or at any tune Wrading-up
thereafter, it shall be lawful for the Coui-t, in cither division thereof, if it thinks may be re-
fit, to direct all subsequent proceedings in the winding-up to be taken before one mitted to lord
of the permanent lords ordinary, and to remit the winding-up to him accordingly ; ordinary,
and thereupon such lord ordinary shall, for the purposes of the winding-up, be

deemed to be " the Court," witliin the meaning of the recited Acts and this xVct,
and shall have, for the purposes of such winding-up, all the jurisdiction and
powers of the Court of Session: Provided always, that all orders or judgments
pronounced by such lord ordinary shall be subject to review only by reclaiming
note in common form, presented (notwithstanding the terms of section one hundred
and twenty-four of the Companies Act, 1862) within fom-teen days from the date
of such order or judgment. But, should a reclaiming note not be presented and
moved during session, the provisions of section five of this Act shall apply to such
orders or judgments : Provided also, that the said lord ordinary may report to the
division of the Court any matter which may arise in the course of the winding-up.
This section and the immediately preceding section shall come into force from the
passing of this Act, and shall iuclude companies then in the course of being wotmd up.



840 Appendix A.



THE PEEFERENTIAL PAYMENTS IN BANKRUPTCY

ACT, 1888.

(61 & 52 Vict. c. 62.)

An Act to amend the Law -witli respect to Preferential Payments in

Bankruptcy, and in the winding-up of Companies.

[24tli December, 1888.]

Be it enacted, &c. :
Priority of 1. — (1.) In the distribution of the property of a bankrupt, and in the distribution

debts. of the assets of any company being wound up under the Companies Act, 1862, and

pp 397 634 ^^^ Acts amending the same, there shall be paid in priority to all other debts —

' (ff) All parochial or other local rates due from the bankrupt or the company at

the date of the receiving order or, as the case may be, the commencement
of the winding-up, and having become due and payable within twelve
months next before that time, and all assessed taxes, land tax, property or
income tax assessed oh the bankrupt or the company up to the fifth day of
April next before the date of the receiving order, or, as the case may be,
the commencement of the winding-up, and not exceeding in the whole one
year's assessment ;
(i) All wages or salary of any clerk or servant in respect of services rendered to
the bankrupt or the company during four months before the date of the
receiving order, or, as the case may be, the commencement of the winding-
up, not exceeding fifty pounds ; and
{c) All wages of any labourer or workman not exceeding twenty-five pounds,
whether payable for time or for piece work, in respect of services rendered
to the bankrupt or the company during two months before the date of the
receiving order or, as the case may be, the commencement of the winding-
up : Provided that where any labourer in husbandry has entered into a
contract for the payment of a portion of his wages in a lump sum at the
end of the year of hiring, he shall have priority in respect of the whole of
such sum, or a part thereof, as the Court may decide to be due under the
contract, proportionate to the time of service up to the date of the receiving
order, or, as the case may be, the commencement of the winding-up.
(2.) Tlie foregoing debts shall rank equally between themselves and shall be paid
in full, tmless the property of the banki-upt is, or the assets of the company are,
insufficient to meet them, in which case they shall abate in equal proportions between
themselves.

(3.) Subject to the retention of such sums as may be necessary for the costs of
administration or otherwise, the foregoing debts shall be discharged forthwith so far
as the property of the debtor, or the assets of the company, as the case may be, is or
are sufficient to meet them.

(4.) In the event of a landlord or other person distraining or having distrained on
any goods or effects of a bankrupt or a company being wound up within three
months next before the date of the receiving order or the winding-up order respec-
tively, the debts to wliioh priority is given by this section shall bo a first charge on
the goods or effects so distrained on, or the proceeds of the sale thereof.

Provided, that in respect of any money paid under any such charge the landlord
or other person shall have tho same rights of priority as the person to whom such
payment is made.

{!).) This section, so far as it relates to tho property of a bankrupt, shall have
effect as part of soctiou forty of the Bankruptcy Act, 1883.



Preferential Payments in Bankruptcy Act. Act of 1888 841



(G.) Tills section shall apply, in the case of a deceased person who dies insolvent,
as if he were a bankrupt, and as if the date of his death were substituted for the
date of the receiving order.

2, — (1.) Nothing- in this Act shall alter the effect of section five of the Act Savings,
twenty-eight and twenty-nine Victoria, chapter eighty-six, " To amend the law of p. 398
partnership," or shall prejudice the provisions of the Friendly Societies Act, 187o,
or shall affect the priority given to the payment of funeral and testamentary
expenses by section one hundred and twenty-five of the Bankruptcy Act, 1883.

(2.) Notliing in this Act shall affect the provisions of the Stannaries Act, 1887. -^0 & 51 Vict.

c. 43.

3. This Act shall apply only in the case of receiving orders and orders for the Application
administration of the estates of deceased debtors according to the law of bankruptcy of Art.
made and windings-up commenced after the commencement of this Act. p. 399

4. This Act shall not apply to Ireland. Extent of

Act.

5. This Act shall commence and come into operation from and immediately after Commence-
the last day of December one thousand eight hundred and eighty-eight. ment of Act.

p. 399

6. The enactments specified in the schedule hereto are hereby repealed to the Reoeal
extent in the third column of that schedule mentioned. „_' '

p. 399

7. This Act may be cited as the Preferential Payments in Bankruptcy Act, 1888. Short title.

p. 399

SCHEDULE.

Enactments Repealed.



Session and Chapter.


Title.


. Extent of Repeal.


46 & 47 Vict. c. 28.
46 & 47 Vict. c. 52.
49 & 50 Vict. c. 28.


The Companies Act, 1883.

The Bankruptcy Act, 1883.

The Bankruptcy (Agricul-
tural Labourers' Wages)
Act, 1886.


The whole Act, except as regards
its application to Ireland.

Section forty, sub-sections one and
two.

The whole Act.



842



Appendix A.



THE COMPANIES (MEMOEANDUM OF ASSOCIATION)

ACT, 1890.

(53 & 54 Vict. c. 62.)

An Act to give further Powers to Companies "with, respect to certain
Instruments under which they may be constituted or regulated.

[18th August, 1890.]

Be it enacted by tlie Queen's most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this jjresent Parlia-
ment assembled, and by the authority of the same, as follows :
Power for 1. — (1.) Siibject to the provisions of this Act, a company registered under the

company to Companies Acts, 1862 to 1S86, may, by special resolution, alter the provisions of its
alter objects memorandum of association or deed of settlement with respect to the objects of the
or foi-m of company, so far as may be required for any of the purposes hereinafter specified, or

constitution alter the form of its constitution by substituting a memorandum and articles of
subject to association for a deed of settlement, either with or without any such alteration as

confirmation aforesaid with respect to the objects of the company, but in no case shall any such
by Court. alteration take effect until confirmed on petition by the Court which has jurisdiction

to make an order for winding-up the company.

(2.) Before confirming any such alteration the Court must be satisfied —
(a.) that sufficient notice has been given to every holder of debentures or deben-
ture stock of the company, and any persons or class of persons whose
interests wO, in the opinion of the Court, be affected by the alteration ;
and
(i.) that, with respect to every creditor who in the opinion of the Court is entitled
to object, and who signifies his objection in manner directed by the Court,
either his consent to the alteration has been obtained or his debt or claim
has been discharged or has determined, or has been secured to the satisfac-
tion of the Court.
Provided that the Court may, in the case of any person or class of persons, for
special reasons, dispense with the notice required by this section.

(3.) An order confirming any such alteration may be made on such terms and
subject to such conditions as to the Court seems fit, and the Court may make
such orders as to costs as it deems proper.

(4.) The Court shall, in exercising its discretion under this Act, have regard to
the rights and interests of the members of the comjiany, or of any class of those
members, as well as to the rights and interests of the creditors, and may, if it
thinks fit, adjourn the proceedings in order that an arrangement may be made to
the satisfaction of the Court for tlic purchase of the interests of dissentient members ;
and tlio Court may give such directions and make such orders as it may think
exiicdiciit for the purpose of facilitating any such arrangement or carrying the
same into effect : Provided always, that it shall not bo lawful to expend any part
of the capital of the company in aiiy such purchase.

(;").) The Court may confirm, citlicr wholly or in part, any such alteration as
aforesaid with r(^s])oct to the objects of the company if it appears that the alteration
is required in order to enable the company —

(a.) To carry on its business more economically or more efficiently ; or

(b.) To attain its main purpose by new or improved means ; or

(c.) To enlarge or change the local area of its oj)crations ; or

(d.) To caiTy ou somo business or businesses which under existing circumstances



Companies (Memorandum of Association) Act. Act of 1890 843

may conveniently or advantageously be combined -witli the business of the
company ; or

(e.) To restrict or abandon any of the objects specified in the memorandum of
association or deed of settlement.

2. — (1.) Where a company has altered the provisions of its memorandum of Rog-istration
association or deed of settlement with respect to the objects of the company, or has of order to-
altered the form of its constitution by substituting' a memorandum and articles of gether with
association for a deed of settlement, and such alteration has been confirmed by the memorandum
Court, an office copy of the order confirming such alteration, together with a as altered or
printed copy of the memorandum of association or deed of settlement so altered, or substituted
together with a printed copj^ of the substituted memorandum and articles of asso- memorandum
ciation (as the case may be) .'shall be delivered by the company to the registrar of joint and articles
stock companies within fifteen days from the date of the order, and the registrar shall and con-
register the same, and shall certify under his hand the registration thereof, and his sequences
certificate shall be conclusive evidence that all the requisitions of this Act with thereof,
respect to such alteration and the coufirmation thereof have been complied with,
and thenceforth (but subject to the provisions of this Act) the memorandum or deed
of settlement so altered shall be the memorandum of association or deed of settle-
ment of the company, or, as the case may be, such substituted memorandum and
articles of association shall apply to the company in the same manner as if the com-
pany were a company registered under Part I. of the Companies Act, 18G2, with
such memorandum and articles of association, and the company's deed of settlement
shall cease to apply to the company.

(2.) If a company makes default in delivering to the registrar any document
required by this Act to be delivered to him the company shall be liable to a penalty
not exceeding ten pounds for every day during which it is in default.

3. — (1.) This Act may be cited as the Companies (Memorandum of Association) Short title
Act, 1890. and construc-

(2.) This Act and the Companies Acts, 1862 to 1886, shall be construed as one tion.
Act, and may be cited collectively as the Companies Acts, 1862 to 1890.

(3.) In this Act the expression "deed of settlement" includes any contract of
co-partnery or other instrument constituting or regulating the company and not
being an Act of Parliament, a royal charter, or letters patent.
{Compare C. {IV. U.) Act, 1890, s. 35.)



844



Appendix A.



THE COMPANIES (WINDINQ-UP) ACT, 1890.
(53 & 54 YicT. c. C3.)



Jurisdiction
to -n-ind up
companies.
p. 13



p. 17



p. 16



p. 605



p. 606



Conduct of
■winding-up
buwincHH in
High Court.
;56 & 37 Vict.
c. 60.



An Act to amend tlie Law relating to the Winding-up of Companies
in England and Wales. [18th August, 1890.]

Be it enacted by tlie Queen's most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present Par-
liament assembled, and by the authority of the same, as follows :

1. — (1.) The Courts having jurisdiction to wind up companies in England and
Wales shall be the High Court, the Chancery Courts of the counties palatine of
Lancaster and Durham, the County Courts, and the Stannaries Court.

(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 ha\'ing jimsdiction.

(3.) AVhere the amount of the cax>ital 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 jurisdiction under this
Act, a petition to wind up the company or to continue the winding-up of the com-
pany under the supervision of the Court shall be presented to that County Court.

(4.) Pro\'idcd that where a company is formed for working mines within the Stan-
naries and is not shown to be actually working mines beyond the limits of the Stan-
naries, or to be engaged in any other undertaking beyond those limits, or to have
entered into a contract for such working or undertaking, 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 Stannaries Court whatever may be tlie amount of
the capital of the company and wherever the registered office of the company is
situate.

(o.) The Lord Chancellor may by order exclude a County Court from having
jurisdiction under this Act, and for the piu'poses 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 jurisdiction
rmdcr this Act unless it has for the time being jurisdiction in bankruptcy.

(G.) Every Court having jvirisdiction imder this Act to wind up a company shall
for the purposes of that jurisdiction have all the powers of the High Court, and
every prescribed officer of the Court sliall perform any duties which an officer of the
Higli Court may discharge by order of the judge thereof or otherwise in relation to
the winding-ui> of a company.

(7.) Notiiing in this section shall invalidatg a proceeding by reason of its being
taken in a wrong Court.

{Sec Stannariat Court {Abolition) Act, 189G.)

2. Subject to general mica and to orders of transfer made under the authority of
the Supremo Court of Judicature Act, 1873, and the Acts amending it, the juris-
diction of the High Court under this Act shall, as the Lord Chancellor may from
time to time by general order dire<;t, be exercised, oitlicr generally or in sijecitied
chiHscH of cases, eitlier by such judge or judges of the Chancery Division of the
High Court us the Lord Chuncollor may assign to exercise that jurisdiction, or



The C0MPANIE8 (WiNDiNG-ur) Act, isuu. Act of 1890 845

by the judge who, for the time being, exercises the bankruptcy jurisdiction of the p. 14
High Court.

3. — (1.) The winding-up of a company or any proceedings therein may at any Transfer of
time and at any stage, and either witli or without application from any of the parties proceedings,
thereto, be transferred from one Court to another Court, or may be retained in the p 5og
Court in which the proceedings were commenced, althougli it may not be the Court
in which the proceedings ought to have been commenced.

(2.) The powers of transfer given by the foregoing provisions of this section P- 506
may, subject to and in accordance with general rules, be exercised by the Lord
Chancellor or by any judge of the Pligh Court having jurisdiction under this Act,
or, as regards any case within the jm-isdiction of any other Court, by the judge
of that Court.

(3.) If any question arises in any winding-up proceeding in a County Court or in P- "90
the Stannaries Court which all the parties to the proceeding, or which one of them p. 608
and the judge of the Court, may desire to have determined in the first instance in
the High Court, the judge shall state the facts in the form of a special case for
the opinion of the High Court, and thereupon the special case and the jiroceedings,
or such of them as may be required, shall be transmitted to the High Court for
the purposes of the determination.

4. — (1.) On an ox"der being made by the Court for winding-up a company Provisions as
the officer hereinafter mentioned shall, by virtue of his office, become the provisional to liquidator,
liquidator of the company, and shall continue to act as such iintil he or another pp_ gg j4f)_
person becomes liquidator and is capable of acting as such.

(2.) The said officer shall be the official receiver, if any, attached to the Court
for bankruptcy purposes, or if thei-e is more than one such official receiver, then
such one of them as the Board of Trade may appoint, or, if there is no such official
receiver, then an officer appointed for the jjurpose by the Board of Trade. Any
such officer shall for the purpose of his duties under this Act be styled the official
receiver.

(3.) When a person other than the official receiver is appointed liquidator of PP- i-^O, 183,
a company he shall be styled liquidator and not official liquidator of the company, 206
and the provisions of the Companies Acts relating to the official liquidator shall,
in their application to him, be construed as if the word "official" were omitted
therefrom. Such a person shall not be capable of acting as liquidator until he
has notified his appointment to the registrar of joint stock companies and given
security in the manner prescribed to the satisfaction of the Board of Trade. He
shall give the official receiver such iufoi-mation and such access to and facilities for
inspecting the books and documents of the companj^, and generally such aid, as
may be requisite for enabling that officer to perform his duties under this Act.

(4.) If any vacancy occm-s in the office of liquidator of a company, the official P- 592
receiver shall, by virtue of his office, be the liquidator during the vacancy.

(5.) The official receiver may be appointed by the Coiurt provisional liquidator of P- °"
the company at any time after the presentation of the petition and before a winding-
up order has been made.

(6.) Where an application is made to the Court to appoint a receiver on behalf of P" ^^^
the debenture holders or other creditors of a company the official receiver may bo
so appointed.

6. — (1.) Where the official receiver becomes the liquidator of a company, whether Bower to ap-



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 112 of 134)