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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and information as the Board may require, and the Board may at any time require
the production of and inspect any books or accounts kept by the liquidator.

(4.) When any such account has been audited, one copy thereof shall be filed
and kept by the Board, and the other copy shall be filed with the Court, and each
co])j shall be open to the inspection of anj^ creditor, or of any person interested.

(5.) The Board of Trade shall cause the account or a summary thereof when
audited to be printed, and shall send a printed copy thereof by post to every creditor
and contributory.

21. Eveiy liquidator of a company which is being wound up by order of the
Court shall keep, in manner prescribed, proper books in which he shall from time
to time cause to be made entries or minutes of proceedings at meetings, and of such
otlier matters as may be prescribed, and any creditor or contributory of the company
may, subject to the control of the Covu-t, personally or by his agent inspect any
such books.

22.— (1.) When the liquidator of a company which is being wound up by order
of the Court has realised all the property of the company, or so much thereof as
can, in his opinion, bo realised without needlessly protracting the liquidation, and
distributed a final dividend, if any, to the creditors, and adjusted the rights of the
contributories between themselves, and made a final return, if any, to the contribu-
torics, or has resigned, or has boon removed from his office, the Board of Trade shall,
on his application, cause a report on his accounts to be prepared, and on his com-
plying with all the requirements of the Board, shall take into consideration the
report, and any objection which may be urged by any creditor, or contributory,
or person interested against the release of the liciuidator, and shall either grant or
withhold the release accordingly, subject nevertheless to an appeal to the High
Court.

(2.) Where the release of a liquidator is withheld the Court may, on the appli-
cation of any creditor, or contributory, or person interested, make such order as it
thinks just, charging the liquidator with the consequences of any act or default he
may have done or madct contrary to his d\ity.

(.'}.) An order of the Board releasing the liquidator shall discharge hun from
all liability in respect of any act done or default made by him in the administration



The Companies (Winding-up) Act, 1890. Act of 1890 851

of the affairs of the company, or otherwise in relation to his conduct as liquidator,
but any such order may be roYoked on proof that it was obtained by fraud or by
suppression or oonccalment of any material fact.

(4.) Where the liquidator has not previously resigned or been removed, his
release shall operate as a removal of him from Ids office.

23.— (1.) Subject to the provisions of the Companies Acts, the liquidator of a Discretionary
company which is being wound up by order of the Court shall, iu the administration powers of
of the property of the company and in the distribution thereof amongst its creditors, liquidator
have regard to any dii'ections that may be given by resolution of the creditors or and control
contributories at any general meeting, or by the committee of inspection, and any thereof,
dii'ections so given by the creditors or contributories at any general meeting shall pp 208, 220,
in case of conflict be deemed to override any directions given by the committee of 347
inspection.

(2.) The liquidator may from time to time summon general meetings of the
creditors or contributories for the purpose of ascertaining their wishes, and it shall
be his duty to summon meetings at such times as the creditors or contributories, by
resolution, either at the meeting appointing the liquidator or otherwise, may direct,
or whenever requested in writing to do so by one-tenth in value of the creditors or
contributories as the case may be.

(3.) The liquidator may apply to the Court in manner prescribed for directions
in relation to any particiilar matter ai-ising under the winding-up.

(4.) Subject to the provisions of the Companies Acts, the liquidator shall use his
own discretion in the management of the estate and its distribution among the
creditors.

24. If any person is aggrieved by any act or decision of the liquidator of a Appeal to _
company which is being wound up by order of the Court, he may apply to the Court, Court against
and the Court may confirm, reverse, or modify the act or decision complained of, liquidator,
and make such order in the premises as it thinks just. pp. 208, 580

25. — (I.) The Board of Trade shall take cognizance of the conduct of liquidators Control of
of companies which are being wound uj) by order of the Court, and iu the event of Board of
any such liquidator not faithfully performing his duties and duly observing all the Trade over
requirements imposed on him by statute, rule^, or otherwise, with respect to the liquidators,
performance of his duties, or in the event of any complaint being made to the gos 243

Board by any creditor or contributory in regard thereto, the Board shall inquire ggj ' '
into the matter, and take such action thereon as may be deemed expedient.

(2.) The Board may at any time require any liquidator of a company which is
being wound up by order of the Court to answer any inquiry made by them in
relation to any winding-up in which the liquidator is engaged, and may, if the
Board think hit, apply to the Court to examine on oath the liquidator or any other
person concerning the windhig-up.

(3.) The Board may also direct a local investigation to be made of the books
and vouchers of the liquidator of any company which is being wound up by order
of the Coiirt.

26. — (1.) The Lord Chancellor may, with the concun-ence of the President of the General rules
Board of Trade, make general rules for carrying into effect the objects of this Act. and fees.

(2.) All general rules made under the foregoing provisions of this section shall
be laid before Parliament witliin three weeks after they are made, if Parliament is
then sitting, and if Parliament is not sitting, within three weeks after the beginning
of the next session of Parliament, and shall be judicially noticed, and shall have
effect as if enacted by this Act.

(3.) Any general rule made under this section shall not come into operation until
the expiration of one month after the rule has been made and issued.

(4.) There shall be paid in respect of the proceedings under this Act siich fees as
the Lord Chancellor may, with the sanction of the Treasmy, direct, and the Treasury
may direct by whom and in what manner the same are to be collected and accounted
for, and to what account they are to be paid.

(5.) All rules made and directions given by the Lord Chancellor under the fore-
going provisions of this section shall be adopted by the authority for the time being
empowered to make rules for regulating the practice or procedure in the Chancery
Court of the County Palatine of Lancaster, but as so adopted shall have effect w4th
the substitution of the words "vice-chancellor" for the word "judge," and the
word "registrar " for the words "chief clerk," and of the words " chambers of the
registrar" for the words "chambers of the judge" and "judge's chambers," and
any directions as to the remuneration to be allowed to officers of that Court in
respect of proceedings under this Act shall be subject to the sanction of the Chancellor
of the Duchy and County Palatine of Lancaster.

3i2



852



Appendix A.



Officers aud
remuneration.
p. 140



Annual
accounts of
receipts and
expenditure
in respect of
winding-up
proceedings.
38 & 39 Vict.
c. 77.

Eetnrns by
ofBcers.



Proceedings
of Board of
Trade.
p. 130



Application
of Act.



668



Interpretation
of terms.



25 & 20 Vict.
c. 89.
p. 654



p. 6



Repeal.



27. — (1.) The Board of Trade may, with the approval of the Treasury, appoint
such additional officers as may be required by the Board for the execution of this
Act, and may dismiss any person so appointed.

(2.) The Board of Trade, with the concurrence of the Treasury, shall direct
whether any and what remuneration is to be allowed to any officer of, or person
attached to, the Board of Trade, perfonning any duties under this Act, and may
vary, increase, or diminish such remuneration as they may think fit.

(3.) The Lord Chancellor, with the concurrence of the Treasury, shall direct
whether any and what remuneration is to be allowed to any person (other than an
officer of the Board of Trade) performing any duties under this Act, and may vary,
increase, or diminish such remuneration as he may think fit.

28. — (1.) The Treasury shall annually cause to be prepared and laid before both
Houses of Parliament an account for the year ending with the thirty- first day of
March, showiug the receipts and expenditure during that year in respect of pro-
ceedings under this Act, whether commenced under this or any previous Act, and
the pro\dsions of section twenty- eight of the Supreme Court of Judicature Act,
1875, shall apply to the account as if the account had been required by that section.

(2.) The accounts of the Board of Trade under this Act shall be audited in such
manner as the Treasury direct, and, for the purpose of the account to be laid before
Parliament, the Board of Trade shall make such returns and give such information
as the Treasury direct.

29.— (1.) The officers of the Courts acting in the winding-up of companies shaU
make to the Board of Trade such returns of the business of their respective
Courts and offices, at such times and in such manner and form as may be pre-
scribed, and from such returns the Board of Trade shall cause books to be prepared
which shall, under the regulations of the Board, be open for public information
and searches.

(2.) The Board of Trade shall also cause a general annual report of all matters,
judicial and financial, within this Act to be prepared and laid before both Houses
of Parliament.

30. — (1.) All documents purporting to be orders or certificates made or issued
by the Board of Trade and to be sealed with the seal of the Board, or to be
signed by a secretary or assistant secretary of the Board, or any person authorized
in that behalf by the president of the Board, shall be received in evidence and
deemed to be such orders or certificates without further proof unless the contrary is
shown.

(2.) A certificate signed by the President of the Board of Trade that any order
made, certificate issued, or act done, is the order, certificate, or act of the Board
of Trade, shall be conclusive evidence of the fact so certified.

31. — (1.) This Act shall not, except where it is expressed to have a more
extended application, ajjply to any company which is being wound up in pur-
suance of an order made before the commencement of this Act.

(2.) For the purposes of this Act a company shall not be deemed to be wound
up by order of the Court if the order is to continue a winding-up under the super-
vision of the Court.

(3.) This Act shall not apply to any company unless the registered office of the
company is situate in England or Wales.

32. — (1.) In this Act, unless the context otherwise requires, —

" The Companies Acts " means the Companies Act, 1862, and the Acts amending
the same.

* ' General rules ' ' means general rules made under this Act, and includes forms.

"Prescribed " means prescribed by general rides.

" Stannaries Court" means the Court of the Vice -Warden of the Stannaries.

(2.) In Part IV. of the Companies Act, 1862, and in this Act the expression
"the Court," when used in Delation to a company shall, unless the contrary
intention appears, mean the Court having jurisdiction under this Act to wind up
the company.

(3.) For the purposes of this Act the expression "registered office of a com-
pany " shall mean tlie phice which has been the registered office of the company
for the greater part of the six montlis immediately ])receding the presentation of
the petition for winding-up the company, and shall include, in the case of an
unroglHtcrcd company, any place wliicli in pursuance of section one hundi-ed and
ninfty-niiie of tlio (Companies Act, 1HG2, is to be deemed the registered office of the
coiiqjany for the pui-puMC of the winding-ui) tliorcof.
{See SlannaricK Uoxrl [Abolition) Act, 1896.)

83. The enactments mentioned in the second schedule to this Act are hereby



The Companies (Winding-up) Act, 1890. Act of 1890 853

repealed, as to England and Wales, to the extent appearing in the third column of
that schedule.

34. This Act shall come into operation on the first day of January one thousand Commence-
eight hundred and ninety-one. ment of Act.

35. — (1.) This Act may be cited as the Companies (Winding-up) Act, ISno. Short title.

(2.) This Act and the Companies Acts, 1862 to 1886, may be cited together as
the Companies Acts, 1862 to 1890.
[Compare sect. 3 of last Act.)



SCHEDULES.



FIKST SCHEDULE.

Meetings of Ceeditoes and Conteibutoeies.

(1.) The meetings of creditors and contributorics shall be held within twenty- one
days after the date of the winding - up order, or within such further time as the
Court may apj^rove, unless a special manager has been appointed, in which case
such meetings shall be held within one month from the date of such order, or within
such further time as aforesaid.

(2.) The official receiver of the company shall summon the meeting by giving not
less than seven days' notice of the time and place thereof in the London Gazette and
in a local paper. Notice of such meeting shall also be sent by post to every person
appearing by the company's books to be a creditor of the company and to every
member of the company.

(3.) The official receiver shall also, as soon as practicable, send to each creditor
mentioned in the company's statement of affairs, and to each person appearing from
the company's books, or otherwise, to be a contributory of the company, a summary
of the company's statement of affairs, including the causes of its failure, and any
observations thereon which the official receiver may tliink fit to make ; but the pro-
ceedings at any such meeting shall not be invalidated by reason of any summary or
notice required by these rules not having" been sent or received before the meeting.

(4.) The meeting shall be held at such place as is in the opinion of the official
receiver most convenient for the majority of the creditors and contributorics.

(5.) The official receiver, or some person nominated by him, shall be the chaii'man
at the meetings.

(6.) A person shall not be entitled to vote as a creditor unless he has duly proved
a debt to be due to him from the company, and the proof has been duly lodg-ed
before the time appointed for the meeting.

(7.) A creditor shall not vote in respect of any unliquidated or contingent debt, or
any debt the value of which is not ascertained.

(8.) For the purpose of voting, a secured creditor shall, unless he surrenders his
security, state in his procf the particulars of his security, the date when it was
given, and the value at which he assesses it, and shall be entitled to vote only in
respect of the balance (if any) due to him, after deducting the value of his secuiity.
If he votes in respect of his whole debt he shall be deemed to have surrendered his
security, unless the Court on application is satisfied that the omission to value the
security has arisen from inadvertence

(9.) A creditor shall not vote in respect of any debt on or secured by a current
bill of exchange or promissory note held by him, unless he is willing to treat the
liability to him thereon of every person who is liable thereon antecedently to the
company, and against whom a receiving order in bankruptcy has not been made, as
a security in his hands, and to estimate the value thereof, and for the purposes of
voting', but not for the i>nrposes of dividend, to deduct it from his proof.

(1(1.) It shall be competent to the official receiver, or to the liquidator, within
twenty-eight days after a proof estimating the value of a security as aforesaid had
been made use of in voting at any meeting, to require the creditor to give up the
security for the benefit of the creditors generally on payment of the value so
estimated, with an addition thereto of twenty per centum. Provided, that where a
creditor has put a value on such secui-ity, he may, at any time before he has been
required to give up such seciu'ity as aforesaid, correct such valuation by a new



Section 6.



p. 17a



854 Appendix A.

proof, and deduct sucli new value from his debt, but in that case such addition
of twenty per centum shall not be made if the liquidator requires the security to be
given up.

(11.) The chairman of the meeting shall have power to admit or reject a proof for
the purpose of voting, but his decision shall be subject to appeal to the Court. If
he is in doubt whether the proof of a creditor should be admitted or rejected he
shall mark the proof as objected to, and shall allow the creditor to vote, subject to
the vote being declared invalid in the event of the objection being sustained.

(12.) A creditor or a contributory may vote either in person or by proxy.

(13.) Every instrument of proxy shall be in the prescribed form, and shall be
issued by an official receiver, or by the liquidator of the company, and eveiy written
part thereof shall be in the handwriting of the person giving the proxy, or of any
manager or clerk or other person in his regular employment, or of a commissioner to
administer oaths in the Supreme Court of Judicature in England.

(14.) General and special forms of proxy shall be sent to the creditors and contri-
butories with the notice svammoning the meeting, and neither the nam.e nor descrip-
tion of the official receiver or of any other person shall be printed or inserted in the
body of any instrument of proxy before it is so sent.

(15.) A creditor or a contributory may give a general proxy to his manager or
clerk, or any other person in his regular employment. In such case the instrument
of proxy shall state the relation in which the person to act thereunder stands to the
creditor or contributory.

(16.) A creditor or a contributory may give a special proxy to any person to vote
at any specified meeting, or adjournment thereof —

(ff) for or against the appointment or continuance in office of any specified person
as liquidator or member of the committee of inspection, and

(b) on all questions relating to any matter other than those above referred to and
arising at any specified meeting or adjournment thereof.

(17.) A proxy shall not be used unless it is deposited with the official receiver
before the meeting at which it is to be used.

(18.) Where it appears to the satisfaction of the Court that any solicitation has
been used by or on behalf of a liquidator in obtauiing proxies or in procuring
the appointment of liquidator, except by the direction of a meeting of creditors
or contributories, the Court shall have power, if it think fit, to order that no
remuneration shall be allowed to the person by whom or on whose behalf such
solicitation may have been exercised, notwithstanding any resolution of the com-
mittee of inspection or of the creditors or contributories to the contrary.

(19.) A creditor or a contributory may appoint the official receiver to act in
manner prescribed as his general or special proxy.

(20.) The chairman of the meeting may, with the consent of the meeting,
adjourn the meeting from time to time and from place to place.

(21.) A meeting shall not be competent to act for any purpose except the
election of a chairman, the proving of debts, and the adjournment of the meeting,
unless there are present or represented thereat, at least three creditors or con-
tributories, or all the creditors or contributories if their number does not exceed
three.

(22.) If within half an hour from the time appointed for the meeting a quorum
of creditors or contributories is not present or represented, the meeting shall be
adjourned to the same day in the following week at the same time and place, or to
such other day as the chairman may appoint, not being less than seven or more
than twenty-one days.

(23.) The chairman of the meeting shall cause minutes of the proceedings at
the meeting to be drawn up, and fairly entered in a book kept for that purpose,
and the minutes shall be signed by him or by the chairman of the next ensuing
meeting.

(24.) No person acting either under a general or a special proxy shall vote in
favour of any resolution Avhich would dii'ectly or indirectly place liimself, his
partner or employer, in a position to receive any remuneration out of the estate
of the company otherwise than as a creditor ratcably with the other creditors of the
company : Provided that where any person holds special proxies to vote for an
application to the Court in favour of the appointment of himself as liquidator he
may use the said proxies and vote accordingly.



The Companies (Windinc-up) Act, 1890. Act of 1890 855



SECOND SCHEDULE.

Enactments Repealed as to England and Wales.



Section 31.



Session and Chapter.



25&26Vict. c. 89



30&31 Vict. c. 131



Title or Short Title.



The Companies Act, 1862



The Companies Act, 1867



Extent of Repeal.



Section eig'hty-one.

In section ninety -two the words
' ' The Court shall determine
whether any and what security
is to be given by any official
liquidator on his appointment."

Section ninety-seven.

Section one hundred and sixty-five.

Sections forty-one to forty-six.



856



Appendix A.



THE DIRECTORS LIABILITY ACT, 1890.



Short title.
Construction.
Liability for
statements in
prospectus.



(53 & 54 Vict. c. 64.)

An Act to amend the Law relating to the Liability of Directors and
others for Statements in Prospectuses and other Documents
soliciting applications for Shares or Debentures.

[18th August, 1890.]

Be it enacted by the Queen's most Excellent Majesty, by and witli the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as follows : —

1. This Act may be cited as the Directors Liability Act, 1890.

2. This Act shall be construed as one with the Companies Acts, 1862 to 1890.

3. — (1.) Where after the passing of this Act a prospectus or notice invites per-
sons to subscribe for shares in or debentiu'es or debenture stock of a company, every
person who is a director of the company at the time of the issue of the prospectus
or notice, and every person who having authorized such naming of him is named in
the prospectus or notice as a director of the company or as having agreed to become
a director of the company either immediately or after an interval of time, and every
promoter of the company, and every person who has authorized the issue of the
prospectus or notice, shall be hable to pay compensation to all persons who shall
subscribe for any shares, debentures, or debenture stock on the faith of such pro-
spectus or notice for the loss or damage they may have siistained by reason of any
untrue statement in the prospectus or notice, or in any report or memorandum
ajjpearing on the face thereof, or by reference incorporated therein or issued there-
with, unless it is proved—

{rt) With respect to every such untrue statement not purporting to be made on
the authority of an expert, or of a public official document or statement,
that he had reasonable ground to beUeve, and did up to the time of the
allotment of the shares, debentures, or debentui-e stock, as the case may be,
believe, that the statement was true ; and
(i) With respect to every such untrue statement purporting to be a statement by
or contained in what purports to be a copy of or extract from a report or
valuation of an engineer, valuer, accountant, or other expert, that it fairly
represented the statement made by such engineer, valuer, accountant, or
other expert, or was a coiTcct and fair copy of or extract from the rei:)ort
or valuation. Provided always, that notwithstanding that such untrue
statement fairly represented the statement made by such engineer, valuer,
accountant, or other expert, or was a correct and fair copy of an extract
from the report or valuation, such director, person named, promoter, or
other person, who authorized the issue of the prospectus or notice as afore-
said, shall be liable to pay compensation as aforesaid if it be proved that he



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 114 of 134)