Francis Beaufort Palmer.

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

. (page 22 of 134)
Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 22 of 134)
Font size
QR-code for this ebook


seven days after service of this order make and file a full and sufficient iiispection.
afft stating whether he has or has had in his possession or power any,
and if any what, documents relating to the matters in question in
these matters, so far as regards the summons dated 4th June, 1878,
and the relief thereby sought against the apphcants, and accounting
for the same. And [^jjroducfion, inspection, &c.]. Blae7i Caelan Co.,
M. E., 15th July, 1878. A. 1504.

The folloTving are other examples : " Relating to the matters in question in the

summons issued by the said liquidator against the said A. and others on the

and returnable on the day of 1880," and "relating to the two pending

summonses issued by the said official liqiiidator, and another against the directors
of the company, dated respectively, &c."

As to discovery from liquidator, see Contract Corporation, 2 Ch. 350 ; GooeK's case,
7 Ch. 207; Mutual Societij, 22 C. Div. 71-4. According to the case last cited the
liquidator will only be ordered to make an affidavit of documents in very special
circumstances : he will be ordered to permit inspection .

For affidavit as to documents, see Form 8, in. App. B., E. S. C, 1883 ; Aim. Pr.
(1897) Vol. 2, 30.

Production of depositions imder sect. 115 refused inaction. North Brit. Co. v.
GoUshorouyh ^ Co., (1893) 2 Ch. 381.



[^By a respt to an applicon hj the off recr.'\ That C. J. S., the off Form 108.

recr and Hqr herein, may be ordered within ten days to file an afft ~

IT T J .,. . Summons

stating what documents are or have been m his possession, custody, or against

power, relating to the matters in question herein, &c. official



receiver for
discoveiy of
documents.



Upon the applicon of the off liqr, &c., and upon hearing the solors Form 109.
for the apphcant and for M. hnftr named. Order that M., an alleged



Order on

contributory of the sd coy, do within seven days after service of this alleged con-
order make and file a full and sufficient afft stating whether he has or tributory for
has had in his custody or power any, and (if any) what, documents documents,
relating to the matters in question in this matter, and his liability to

i2



116 WINDING-UP BY THE COURT. [ChAP. XII.

be placed on the list of contributories and accounting for the same.
And \iisual order for lii'oduction and inspection, and also for jjroduction^
upon any examination of witnesses in these matters and at the hearing
of the applicon to place the sd M. on the list of contributories of the
sd coy as the applicant shall require, &c. British Fire Office^ M. R.,
2iid Aug. 1878. A. 1864.



Form 109a. Upon the applicon of T., the applicant named in the notice of

~Z~^ ~ motion in the above matters, dated the 28th Nov. 1890, and upon

Order on ^ pit

company to hearing the solors for the applicant, and for the P. &c. Co., and upon

produce books reading: the sd notice of motion, and the sd. P. &c. Co. by their solors
for inspection. i i i • i • .

admitting that they have in their possession or power the books and

documents hnftr mentd, and undertaking to produce the same pursuant
to this Order, It is ordered that the sd coy do at all seasonable times
upon reasonable notice produce at the office of Mr. N., their solor,
situate at , in the city of London, the following books and docu-
ments, namely, the minute book and register of shareholders of the
sd coy, and the report of K., a director of the sd coy, on the ppty of
such coy, and dated &c., and that the sd T., his solors and agents, be
at liberty to inspect and peruse the sd books and documents when so
produced, and to take copies and abstracts thof and extracts therefrom
as the applicant shall be advised at his expense. But previous to the
sd inspection the sd coy are to be at liberty to seal up such parts of
the sd minute book, and the sd report as, according to an afOt to be
made (if required) by the coy by its proper oflB.cer, do not relate to the
matters in question raised "by the sd notice of motion. And it is
ordered that the sd coy do produce the sd books and documents on
any examination of witnesses in this matter, and at the hearing of the
sd motion, as the applicant shall require, and the applicant is to be at
liberty to make such further applicon as to all or any of the sd books
and documents as he may be advised. — Paszoiva {Galician) Petroleum
Co., Chitty, J., 16th Feb. 1891. B. 107.



Oral Evidence.

In ■winding-up proceedings, occasion sometimes arises for obtaining the oral
evidenco of witnesses. Thus, upon a winding-up petition the petitioner or respon-
dents may require to obtain the evidence of some person who declines to make an
aflidavit ; and, in proceedings after the winding-up order, a creditor whose claim
JH dinputc'd, or an alleged contributory, may desire to obtain such evidence. In
Huch cases the Court will give liberty to examine the witness before an examiner
of the Court or special examiner, pursuant to Ord. XXXVII. r. 5, i)ifra, or before
the registrar. Ite S'priiiffa!/, W. N. (1875) 225. As to special examiners, see Ann.
Pr. (1897), 743, 744. But where a liquidator wants such evidence, he can very
comiuouly obtuiu it under sect. 115 of the Act of 1SC2. Sec Chapter XLIII.



EVIDENCE. 117

K. S. C, 0. XXXVII. r. 5.— The Court or a judge may, in any cause or matter Depositions
where it shall appear necessary for the purposes of justice, make any order for the ?^ .^''•P
examination upon oath before the Court or judge or any officer of the Court, or any
other person, and at any place, of any witness or person, and may empower any
party to any such cause or matter to give such deposition in evidence therein on
euch terms (if any) as the Court or a judge may direct.

Formerly, a witness could be examined or cross-examined before an examiner
under 15 & 16 Vict. c. 86, s. 40, but this section has been repealed by 46 & 47 Vict.
0. 49 (a. 3), except so far as applied by Order in Council to the Lancaster Palatine
Court, or to any inferior Court of civil jurisdiction (sect. 7).

Formerly, the witness could be served with a subpoena to attend before the
examiner without any order, but under the present practice an order must first be
obtained directing the examination to be had before one of the examiners of the
Court, or, as is more usual in winding-up, before the registrar. See R. S. C, Ord.
XXXVII. rr. 39—52; Ann. Pr. (1897) 763—766. The examination having been
referred to an examiner or registrar, and an appointment obtained in accordance
with the rules above referred to, the subpoena can be served.

The order is to be obtained on summons. See infra, as to special examiners.

All viva voce evidence addiiced before the registrar has to be taken down in short-
hand. See Practice Directions in Appendix.

As to documents to be left with the examiner, see Ord. XXXVII. r. 10.

In the High Court of Justice. [^Reference to Record.~\ Form 110.

Companies (Winding-up). Precipe for

Mr. Justice Vaughan Williams. subpoena.

In the matter of the Companies Acts, 1862 to 1890,

and

In the matter of the — — Company, Limited.

Seal writ of subpoena ad testificandum [or duces tecimi], on behalf

of [e.y., the off recr and liqr of the above-named coy], directed to

\_state names of tvitness or ivitnesses~\, returnable the .

Dated the day of -^ — , 189—.

\_Name and address of solor.~\

Solor for the sd off recr and liqr.

R. S. C, 0. XXXVII. r. 20. — Any party in any cause or matter may by subpoena Attendance of
ad testificandum or duces tecum require the attendance of any witness before an officer witness under
of the Court, or other person appointed to take the examination, for the purpose of subpoena,
using his evidence upon any proceeding in the cause or matter in like manner as
such witness would be bound to attend and be examined at the hearing or trial ;
and any party or witness having made an affidavit to be used or which shall be
used on any proceeding in the cause or matter shall be bound, on being served with
such subpoena, to attend before such officer or person for cross-examination.

A subpoena may be issued at any stage of the proceedings without leave, although Abuse of
the Court on his attendance can say that he shall not be examined, or shall be process,
examined in open Court. Eaynwnd v. Tapsoti, 22 C. Div. 430.

And a subpoena to a witness to attend before an examiner is issued without order. Before
Ann. Pr. (1897) 757. examiner.

E. S. C, 0. XXXVII. rr. 26—34.—

26. Where it is intended to sue out a subpoena, a prfecipe for that purpose, in the Praecipe for
Form No. 21 in Appendix G. [altered as above in winding-up'], and containing the subpoena.



118



WINDING-UP BY THE COUET. [ChAP. XII.



Form of
subpoena.



Subpoena for
attendance in
Chambers.



Number of
persons in a
subpoena.



Correcting
errors.



Service.



Form 111.

Subpoena ad
testificandum
or duces
tecum.



name or firm and the place of business or residence of the solicitor intending to sue
out the same, and, where such solicitor is agent only, then also the name or firm
and place of business or residence of the principal solicitor, shall in all cases be
delivered and filed at the Central Office. [/« wbidinff-np the 2»'cecipe is placed on the
file at the Eegistrar's Chambers.']

27. A writ of subpoena shall be in one of the Forms 1 to 7 in Appendix J. [to
R. S. C. 1883], with such variations as circumstances may reqmre. [Form 111,
i/ifra. is used in winding-up.]

28. Where a subpoena is requii-ed for the attendance of a witness for the purpose
of proceedings in Chambers, such subpoena shall issue from the Central Office \in
winding-up, the Eegistrar's Chambers'] upon a note from the judge. [5«i see supra,
as to attendance before examiiiers.']

29. Every subpoena other than a subpoena duces tecum shall contain three names
where necessary or required, but may contain any larger number of names.

30. No more than three persons shall be included in one subpoena duces tecum and
the party suing out the same shall be at liberty to sue out a subpcena for each person
if it shall be deemed necessary or desirable.

31. In the interval between the suing out and service of any subpoena the party
suing out the same may correct any error in the names of parties or witnesses, and
may have the writ re-sealed upon leaving a corrected praecipe of such subpoena
marked with the words "altered and re-sealed," and signed with the name and
addi'ess of the solicitor suing out the same. [And see infra.]

32. The service of a subpoena shall be effected by delivering a copy of the wi'it,
and of the indorsement thereon, and at the same time producing the original writ.

33. Affidavits filed for the purpose of proving the service of a subpoena upon any
defendant must state when, where, and how, and by whom, such service was
effected.

34. The service of any subpoena shall be of no validity if not made within twelve
weeks after the teste of the writ.

As to amending the date of return, and otherwise as to the above rules, Ann. Pr.
(1897) 760—762.

The subpoena will be as follows: —

{Title as in Form 110.)

Victoria, by the grace of God of the United Kingdom of Great
Britain and Ireland Queen, Defender of the Faith.

To \Jiere insert name or names of the tvitness or tvitnesses~\ greeting :

We command you [ichere several, and every of you] to attend before

Esq., one of the examiners of witnesses in our High Court of

Justice, at [his Chambers situate at No. — , New Square, Lincoln's
Inn, in the County of Middlesex, or at the Chambers of the Registrar
Companies Winding-up, Bankruptcy Buildings, Carey Street, London],

on day, the day of , at the hour of in the noon

and 80 from day to day until your evidence shall have been taken, to
give evidence on behalf of [the off recr and hqr of the above-named coy].

Witness. — Lord High Chancellor of Great Britain, the

day of , in tlio year of our Lord one thousand eight hundred

un<l .

In tlio case of a Kubpoona duces tecum, the words "and also to bring with you
and produce ut tho timo and place aforesaid " [specify documents to be produced],



EVIDENCE. 119

Bhould bo inserted in the above form before the word " -witncKS." A subpoena duces
tecum should specify the documents requii'cd, so that the witness may be able to
identify them. Kcwland v. Steere, 13 TV. R. 1014. But a witness served with a
subpoena in a general form, who admits that the documents are in his possession,
must produce them, lee v. Angas, 2 Eq. 59. "Wliere the witness is to be cross-
examined the requisite modifications must be made, e.g., instead of "to give evi-
dence," say " to be cross-examined on your affidavit filed in this matter on, &c."

A liquidator in a compulsory winding-up, who has been ordered to bo cross-
examined, need not be subpoenaed. General Financial Banh, TV. N. (1888) 47.



Tliis writ was issued by A. B., of , »S:c., whoso address for Form 112.

service is at the office of Mr. , No. — , Coleman Street, in the indorsement

City of London [agent for . of, &e.], sol or for the liqr of the 0° ^"t where

, , ■ issued by

above-named coy. solicitor.

An indorsement as above shovild be placed on a subpoena and the copy served.
Consolidated Ord. III. rr. 2 and 5, required it, and see Ord. XXXVII. r. 32.
Ord. XXXVII. also requires the particulars to be inserted in the pra3cipe. See
Rule 26 supra, and see Dan. Ch. Forms, pp. 2, 303.



{Title.) Form 113.



Take notice that you are required to attend under the accompanying- Notice to

subpoena before , one of the examiners of witnesses in the High ^;*°^|^/^

Ct of Justice, at his chambers, No. — , New Square, Lincoln's Inn, examiner or
London [or, as the case may be, before the Registrar, Companies registrar.
Winding-up, Bankruptcy Buildings, Carey Street, London, "NV.C],

on the day of , at of the clock in the fore[noon]

of that day, and so from day to day until your [examination] shall be
comj)leted.

Dated this day of ■ .

E.B., 0/ ,

Solor for .

To \_msert names and place of
residence of person to he served~\.



Should be obtained as follows :

{Title.) J1QJ.JJJ 114_

I certify that an appointment was made with me for the day Examiner's""

of , to take the examination \or cross-examination] of C. D., pur- certificate of

non-attend-



suant to the order made in this matter on the day of , and ance of

that no person of the name and description of C. D. [^address and descrip-

tio7i] attended to be cross-examined before me on that day [or that ,

of , attended before me on that day and refused to be sworn and



120



WINDING-UP BY THE COURT. [ChAP. XII.



Refusal to
attend or be
sworn.



examined as a witness in this matter [or cross-examined on his af£t

referred to in the sd order].

Dated this day of .

, Examiner.

E. S. C, 0. XXXVII. r. 13. — If any person duly summoned by subpoena to attend
for examination shall refuse to attend, or if, having attended, he shall refuse to be
sworn or to answer any lawful question, a certificate of such refusal, signed by the
exanuner, shall be filed at the [Registrar's Chambers], and thereupon the party
requiring the attendance of the witness may apply to the Court or a judge ex parte
or on notice for an order directing the -witness to attend, or to be sworn, or to answer
any question, as the case may be.

Where the -witness attends, but refuses to produce documents, the certificate will
of course be varied. See Form in Chap. 5LIII.



Form 115.

Notice of
motion that
an objecting
witness do
attend the
examiner.



Objection by
■witness to
questions.



Costs occa-
sion cd by
rcfuHu) or ob-
jection under
rr. 13, 11.



On obtaining this certificate a notice of motion or summons may be served as
follows :

On the part of [A. B., the oS recr and liqr of the above-named coy],

that N., of , a witness sworn and examined in this matter on behalf

of the applicant on the day of , before M., Esq., one of the

examiners of this Ct [or the examiner specially appointed for that
purpose] may be ordered to attend at his o-wn expense before the sd
examiner, at such time and place as the sd examiner shall appoint, to
be further examined on behalf of the applicant, and [if so, add, that
the sd N. may be ordered then and there to answer the questions

which he objected to answer upon his afsd examination on the

day of , that is to say [s2)ecify the questions^ ; and] that the sd N.

may be ordered to pay the costs of and occasioned by his sd demurrer
or objection [or of the day of the proceedings had before the sd
examiner] and of and consequent upon this applicon.

R. S. C, 0. XXXVII. rr. 14, 15, are as follows :—

14. If any witness shall object to any question which may be put to him before
an examiner, the question so put, and the objection of the witness thereto, shall be
taken down by the examiner, and transmitted by him to the Central Ofiice to be
there filed, and the validity of the objection shall be decided by the Court or a judge.

15. In any case under the two last preceding rules, the Court or a judge shall
have power to order the witness to pay any costs occasioned by his refusal or
objection.

As to a witness being ordered to attend at his own expense, see Stuart v. Bcdkis Co.,
wfra, in note to Form 128.

The above form can readily bo varied to suit the circumstances. The application
ehould be supported by an afiidavit of service of the subpoena and non-attendance,
or as the case may be. Also by an office copy of the examiner's certificate of non-
attendaucr'. Dan. Forms, 310.



Form lie.

AfiBrlavit of
Hervicc of



1. On tli'^



day of



I served M., the person named in the



Hubpoona next hnftr mentd, with a subpoena issued out of and under
the seal of this Ct, by delivering to and leaving with the sd M. per-



EVIDENCE. 121

sonally at , in the county of , a true copy of sucli subpoena subpoBna and

and of the indorsement thereon, and I at the same time showed the sd ^*^^i^^-
subpoena so under seal as afsd to the sd M.

2. By the sd subpoena the sd M. was commanded to attend

before , Esq., one of the examiners in the High Ct of Justice

\_ follow the words, e.g., at such time and place as the bearer thof
should by notice in writing appoint], and so from day to day until the
examination should be completed, to be cross-examined on his afit filed
the day of in this matter.

3. At the time of the afsd service of the sd subpoena I delivered to
and left with the sd M. a notice in writing intituled in this matter
addressed to the sd M., and purporting that the sd M. was required
to attend \_set out notice m/ull^.

Instead of reciting the subpoena, it can be referred to as an exhibit.

The form of order for attendance can readily be framed from Form 115.

The order should be served personally with an indorsement, in accordance with
Ord. XLI. r. 5. Disobedience is a contempt of Com-t (Ord. XXXVII. r. 8), and a
motion to commit can accordingly be made.

As to subpoena duces tecum, see Ord. XXXVII. r. 20, supra ; An. Pr. (1897)
756 ; and as to order in Ueu thereof, see Ord. XXXVII. r. 7 ; In re Smith, W. N.
(1890) 230 ; and Ann. Pr. (1897) 749.

As to filing depositions, see infra.


Affidavit Evidence {High Court).

E. S. C, 0. XXXVIII. r. 1. — Upon any motion, petition, or summons, evidence When
may be given by affidavit ; but the Court or a judge may, on the application of allowed,
either party, order the attendance for cross-examination of the person making any
such affidavit.

See further, as to evidence in support of petition, Chap. V.

As to cross-examination, see infra.

Every affidavit is to be intituled in the cause or matter in which it is swom. Title.
Ord. XXXVIII. r. 2.

Affidavits are to be confined to such facts as the witness is able of his own Information
knowledge to prove, except on interlocutory motions [= applications, Kcw Callao, and belief.
22 C. Div. 484], on which statements as to his belief, with the grounds thereof,
may be admitted. Ord. XXXVIII. r. 3. An affidavit of facts to the best of the
defendant's knowledge, information and belief, without stating the grounds, is
worthless. Quartz HiU Co. v. Bcall, 20 C. Div. 508 ; 51 L. J. Ch. 874 ; 46 L. T.
746 ; 30 W. R. 583. And an affidavit deposing positively to a fact not likely
to be within the personal knowledge of the deponent, is worthless, unless it shows
deponent's means of knowledge. Bidder v. Bridges, 26 C. Div. 1. Evidence on
information and belief is not admissible on applications which finally settle the
rights of the parties. Gilbert v. Endean, 9 C. D. 259. But as to the statutory
affidavit in support of a winding-up petition, see Chap. V.

Every affidavit is to be drawn in the first person, and is to be divided into Formalities,
paragraphs, numbered consecutively, and as nearly as may, each to be confined to a
distinct portion of the subject. Every affidavit is to be written or printed bookwise.
Ord. XXXVIII. r. 7. As to stitching margins, see supra, p. 22.

Every affidavit is to state the description and true place of abode of the deponent, Filing.



122



WINDING-UP BY THE COUET. [ChAP. XII.



Ofl&ce copies.



Notice of
filing, Sec.



and should be filed in tie registrar's office. Ord. XXXVIII. rr. 8, 10 ; R. 11 of
AprH, 1892.

As to alterations, see Ord. XXXVIII. r. 12.

As to use of original affidavits and office copies, see Ord. XXXVIII. r. 15.

E. 12 of April, 1892. — [In proceedings before Vauglian Williams, J.] — All office
copies of affidavits, dei30sitions, papers, and writings, or any parts thereof, required
by any liquidator, contributory, creditor, officer of a company, or other person
entitled thereto, shall be provided by the registrar, and shall, except as to figures,
be fairly -written out at length, and be sealed and delivered out without any
unnecessary delay and in the order in which they shall have been bespoken.

As to swearing before solicitor in cause or matter, see Ord. XXXVIII. rr. 16, 17.
And as to swearing affidavits of proof of debt, see Order of 3rd Dec. 1892, in Appen-
dix B.

The party intending to use any affidavit in support of any application made by
liim in Chambers in the Chancery Division is to give notice to the other parties
concerned of his intention in that behalf. Ord. XXXVIII. r. 20. See further as
to notice of intention to use affidavits. Chap. V., supra, and see infra, p. 927.

All affidavits which have been previously made and read in Court upon any pro-
ceeding in a cause or matter, may be used before the judge in Chambers.
Ord. XXXVIII. r. 21.

Every certificate on an exhibit referred to in an affidavit, signed by the com-
missioner or officer before whom the affidavit is sworn, is to be marked with the
short title of the cause or matter. Ord. XXXVIII. r. 24.

And see also, as to affidavits, Chap. II., p. 29.

For forms of affidavit, see Forms 11 and 12, supra.



Cross-examination on Affidavits.

The Court has a discretion as to ordering a cross-examination under Ord.
XXXVIII. r. 1, siipra. La Trinidad y. Broivne, 36 W. R. 138.

Under Ord. XXXVII. r. 20, supra, any party or witness having made an affi-
davit, is bound on being served with a subpoena to attend before the examiner,
or other officer of the Court, or a special examiner, for cross-examination. Rule 19
of General Order of 5th Eebruaiy, 1861, imposed on the party who filed the
affidavit the onus of producing the deponent for cross-examination, but required
notice of the intention to cross-examine to be given within fom'teen days after
the filing of the affidavit, and forty-eight hours' notice to produce ; but this rule
does not appear in the Rules of 1883. See supra, r. 28 of Ord. XXXIII., which
would seem to apply. Co7inell v. Balcer, 29 C. D. 711, and r. 178 of 1890.

A subpa3na cannot issue under r. 20 until an order has been obtained for the
examination of the witness. Ann. Pr. (1897) 756. And Ord. XXXVIII. expressly
requires an order for cross-examination. Where the witness does not attend, an
order should be obtained. See infra, Form 128, and case last mentioned.

Ah to subpoena, see supra, and Raymond v. Tapson, 22 C. Div. 43-i ; and as to old
practice, In re Knight, 25 C. D. 297.

Ah to expenses of witness, see irork'mg Men'' s Mutual Society, 21 C. D. 831. An
affidavit once filed cannot be withdrawn so as to avoid cross-examination. Quartz
mil Co., Kv parte Young, 21 0. Div. 643.

Under the new practice the order for cross-examination refers it to the examiner



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 22 of 134)