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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in rotation or the registrar to take the cross-examination [or appoints a special
examiner], and the attendance of the witness must bo enforced by subpoena. Ord.
XXXVII. r. 20.

If (lio witncHH docs not attend on the subpoena, or refuses to answer, the proper



EVIDENCE. 123

course is to ajDply for an order to attend under Ord. XXXVII. r. 13, siqrra. Back-
house V. Alcock, 28 C. D. 669 ; and Connell v. Baker, ubi supra. If he docs not comply
he can bo committed; costs in the discretion of the judge. Ord. XXXVII. r. 15.
See further the preceding- section of tliis chapter and Ord. XXXVII., infra.

As to cross-examination and evidence of witnesses on "winding-up petitions, see
further, Forms 51 and 52, supra.

Cross-examinations are usually taken before the registrar.



\_By a rcspt to an applicon of off recr7\ — That ho may liave ono Form 117.
month's time to file his evidence in answer to the evidence filed on



Summons
behalf of the off recr. against official

\_Suhsequent summons.'\ — That he may have one month's further furtheTtime

time to file, &c. to file ,

evidence.

Filing of Evidence.

Practice Directions, 2nd June, 1892. — On all applications by summons, the e\i- Qn summons,
dence in support must be filed, and notice of such filing must be served on the
opposite party at the time of the service of the summons. The opposite party
must file his evidence in answer within eight days of the service of the summons
and the said notice, and the applicant's evidence in reply must be filed within three
days from such last-mentioned time.

As to time for filing affidavits in opposition to petition, and in reply, see p. 6-1, On petition.
supra.

As to the undertaking to be given on filmg affidavits out of time, see Practice
Directions in Appendix.

Ord. XXXVII., r. 12. — The depositions taken before an officer of the Court, or Depositions to
before any other person appointed to take the examination, shall be taken down in ^^ taken down
writing by or in the presence of the examiner, not ordinarily by question and °'

answer, but so as to represent as nearly as may be the statement of the witness, and
when completed shall be read over to the witness and signed by him in the presence
of the parties, or such of them as may think fit to attend. If the witness shall
refuse to sign the depositions, the examiner shall sign the same. The examiner
may put down any particular question or answer if there should appear any special
reason for doing so, and may put any question to the witness as to the meaning of
any answer, or as to any matter arising in the course of the examination. Any
questions which may be objected to shall be taken down by the examiner in the
depositions, and he shall state his opinion thereon to the counsel, solicitors, or
parties, and shall refer to such statement in the depositions, but he shall not have
power to decide upon the materiality or relevancy of any question.

All viva voce evidence taken before the registrar is taken down in shorthand. See Shorthand
Practice Directions, Appendix C. notes.

But shorthand notes are not allowed before an examiner. See Ann. Pr. (1897) 753.

Ord. XXXVII., r. 16. — T\Tien the examination of any witness before any examiner Depositions,
shall have been concluded, the original depositions, authenticated by the signature
of the examiner, shall be transmitted by him to the Central Office (see infra) and
there filed.

It was the practice in winding up, prior to April, 1892, to file the depositions in
the Central Office, but by rule 11 of April, 1892, all depositions were to be filed in
the office of the registrar (Bankruptcy Buildings), but by rule 1 of November, 1895,
depositions (except on a public examination) are not to be placed on the file, or be



124



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



open to inspection (except as therein mentioned) unless and until the Court shall bo
direct.



Form 118. I^et all parties concerned attend at the office of tlie registrar,

Bankruptcy Buildings, Carey Street, London, on day the

(Jay of , upon the hearing of an applicon on the part of the off

recr and liqr, that A. B. and C. D. do attend and be cross-examined in
[open] Ct upon the afltts filed herein by them resply.



Summons for
order for
cross-exami-
nation.



Form 119.

Summons
for cross-
examination
of official
receiver.

Form 119a.

Order to cross-
examine in
Court on
hearing of
petition.



That the sd C. J. S., W. B., and W., do attend before the registrar,
or one of the examiners of the Ct, for the purpose of being cross-
examined ou his a££t filed herein on the day of .



Upon the applicon by summons dated &c., of G., the respt to the
peton of M., preferred in this Ct on the &c., and upon hearing the
solors for the applicant and for the respt the sd M., and upon reading
the eight several affts of the sd M., filed &e., S., filed &c., It is ordered
that the applicant, the sd G., be at liberty to cross-examine the sd
M. &c., upon their sd several affts filed in this matter on behalf of the
sd petr, and that such cross-examination be taken in open Ct on the
hearing of the sd peton ; And it is ordered that unless the sd M. &c.,
appear for the purpose of such cross-examination the sd petr M. shall
not be at liberty to read or use the sd affts, or the affts of such of the
sd persons as shall not appear as evidence in this matter -without the
special leave of the Ct. Neio Pari of Mines (00237 of 1895), North, J.,
for Yaughan WiUiams, J., 27th April, 1896.



Order for

cross-exami-
nation, with
restrictions as
to use of
affidavits.



Form 120. Upon the applicon of the [off] liqr, of &c., and upon hearing, &c., it
is ordered that the sd [off] liqr be at liberty to cross-examine H. B.
and S. upon the afft made by them in this matter, and filed, &c., in
support of the claim of the sd W. against the sd coy ; And it is
ordered that such cross-examination bo taken before one of the
examiners of the Ct, at such time and place as the sd examiner may
appoint; And it is ordered that unless the sd H. B. and S. appear
accordingly tlio sd "W. bo not at liberty to read or use the sd afft as
evidence in tliis matter witliout special leave of the Ct; And it is
ordered that in the first instance the sd H. only be so cross-examined,
but if the sd [off] liqr, after such cross-examination is concluded, shall
doBiro to croKH-cxamino the other three deponents, or any one or more
of them, ho is to be at liberty to do so, on giving notice thof . {Lactinay
^•c. Co., Toarson, J., .5 March, 1886.)



EVIDENCE, 125

TJpon the applicon of L., a creditor of the coy, and upon hearing Form 121.
the solors for the applicant and for the [off] liqr, and upon reading, Order for
&c., Order that each of the sd A., B. and C. do rosply attend Lefore cross-exami-
one of the examiners of the Ct, to be cross-examined on their resp affts examiner,
filed herein. Carta Para, &;c. Co., Pearson, J., 19th May, 1884. A.
704.

Ifc is not usual to make the order until the evidence is complete, lie Uavies, 44
C. Div. 2,53.

Upon the applicon of W., one of the respondents to a summons Form 122.
issued by the [off] liqr, and dated 26th Nov., 1883, and upon hearing Order for
the solors for the applicants and for the [off] liqr, and upon reading cross-exami-
the afft of B., the [off] liqr, filed 18th Feb. 1884, Order that the sd li^^^^l,. ^^
W. be at liberty to cross-examine the sd B., [off] liqr, upon his sd application of
afft, filed 18th Feb. 1884, and that such cross-examination be taken ^^espondent.
before the examiner in the manner provided by the statute the loth
and 16th Vict. c. 86 ; and that the sd B. do appear for cross-examina-
tion before the examiner accordingly, at such time and place as the
examiner may appoint, and that, unless the saidB. appear accordingl}',
the sd B. shall not be at liberty to read or use the sd afft as evidence
in these matters without special leave of the Ct. French Date Coffee,
Chitty, J., 27th March, 1884. A. 940.

Upon the applicon of E., a contributory of, &c., Order that the sd Form 123.
F. be at liberty to cross-examine viva voce in Ct the sd H. on his two -j^., , ,
several affts, filed, &c. And order that the summons issued on the cross-examine
6th and returnable on the 13th Dec. 1882, be placed in the list of i'l Court,
[actions with witnesses] ; and costs of this applicon to be disposed of
on the hearing of the sd summons. Cape Breto7i Co., Fry, J., 19th Feb.
1883. A, 522.

Upon the applicon of B., &c., Order that upon the hearing in Ct of Form 124.
the summons issued on the 6th and returnable on the 13th of Dee. further order
1882, which by the sd order of 19th Feb. 1883, was directed to be put following the
in the list of actions with witnesses, the applicant be at liberty to ^ °^'^*
cross-examine the sd and on their respve aifts and deposi-
tions ; and that the applicant may also be at Uberty to subpoena for
attendance in Ct on the hearing of such summons the two persons

following, namely and ; and the costs of ai)plicon to be

costs of sd summons. Cape Breton Co., Fry, J., 5th March, 1883.
A. 502.

Special Examiners.
A special examiner is now rarely appointed.
The application for the appointment of a special examiner ia usually made by



126



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



stumnons, and should be supported hj an affidavit as to the circumstances, and that
the proposed examiner is a fit person, and has no interest in the matters in question.
See further as to the practice, Dan. Forms, pp. 286 et scq. ; Ord. XXXVII. r. 5,
supra, and Ann. Pr. (1897) 743 H scq.



Appointment
of district
registrar to
be special
examiner.



Form 125. Upon tlie applicon of H., liqr of coy, by summons dated 21st July,
1883, and upon hearing the solors for the applicant and for S. S. and
B., and upon reading the afft of E., filed 2nd Aug. 1883, of service of
the summons, and the afft of H., filed 25th July, 1883, Order that M.,
of Leeds, in the County of York, the registrar of the County Court of
Yorkshire, holden at Leeds, and of the Leeds District Registry of this
Honble Ct, be appointed special examiner, for the purpose of taking

the examination of the following persons ; that is to say, , of

Leeds, &e., concerning the knowledge of the trade dealings and estate
and effects of the sd coy. And order that the sd several persons do
attend such special examiner on 21st Nov. 1883, at 11 o'clock in the
forenoon, and at such other times as he shall direct, for the purpose of
being examined accordingly. Leeds Estate Co., Kay, J., 15th Nov.
1883. B. 1458.



Form 126.

Appointment
of special
examiner in
general terms.



Upon the applicon of L., the [off] liqr of the coy, for a special
examiner to be appointed to take the evidence of witnesses in these
matters, and upon hearing the solor for the applicant, and upon
reading, &c.. Order that Y., Esq., barrister-at-law (he consenting), be
appointed special examiner for the purpose of taking the evidence of
witnesses in these matters. And order that the depositions, &c.
Saturn, Sfc. Co., 12th May, 1877. B. 893.



Form 127.

Apijointment .
with pro-
vision as to
interpreter.



Upon the applicon of the [off] liqr of the coj, &c., Order that A.,
of , be appointed examiner for pur2:)ose of taking the cross-
examination of the sd P. on his sd alft, filed, &c., and the examination
and cross-examination of other witnesses in these matters, And order

that the sd [off] liqr be at liberty to employ J., of , interj)reter

and translator of the Portuguese, French and other languages, to act
as interpreter and translator into English of the vivd voce evidence to
be given in the French language by the sd P. before the sd examiner.
And cjrdor that the translation of such evidence Avhich is to be made
by the sd J. be adopted and filed as truly representing the vivd voce
examination or deposition of the sd P. Portuguese Contract Co., 10th
Juno, 1870. ]\ralins, V.-C.



Form 128.

Order that



Upon motion, &c., Order that P, do attend, at his oivn expense,
before tho special examiner appointed in the above matter, at such



EVIDENCE. 127

time and place as tlie sd examiner sliall appoint, to answer such ques- "witness attend
tions as may be properly put to him, including the questions which he questk)riT'^

refused to answer on the day of , and do produce before the ol^jected to.

sd special examiner all books, papers and documents in his possession
or power relating to the above coy, and in particular, &c. And order
P. to pay to the liqr his costs of sd motion, to be taxed. East Van Co.,
Kay, J., 6th Dec. 1883. A. 1753.

Wliere a witness does not attend the pi-oper coui'se is to serve him -with subpoena,
and then if he fails to attend, move for order to attend at his own expense. Stuart
V. Balk cj- Co., 32 W. R. 67G. As to committal for contempt in not answering-, see
Cutler V. Wright, W. N. (1890), 28.



Upon motion this day made unto this Ct by K., the off liqr of the Form 129.
above-named coy, and upon reading the order to wind up the sd coy, (J3 ^
dated 23rd April, 186G, and the order appointing the off liqr, dated examination
25th May, 186G, and an affidavit of K., filed 19th June, 1877, this ScoSd°^ '"^
Ct doth order that the sheriff of the county of Inverness, Scotland, (under s. 127
do summon C. S. and W. T. E., or either, or if necessary both of them, °^ ^^^~)-
the managers or agents of The National Bank of Scotland at Inverness,
afsd, to attend before the sd sheriff at such time and place as he shall
appoint, as witnesses and havers to be examined upon oath on behalf
of the sd off liqr with reference to the estate, dealings and affairs of
the coy, and also in reference to the estate, dealings and affairs of
a contributory or alleged contributory of the coy, and to produce all
deeds, books and documents called for which may be in their or either
of their possession or power, and that the sd sheriff do take such
examination orally, and authenticate such examination in writing by
his signature, and forward the same to the [Record and "Writ Clerks'
Office, Chancery Lane, in the county of Middlesex], to be filed in the
above matters in due course, and do transmit with such written
examination the books, papers, deeds and documents produced before
him, or such copies thof or extract therefrom as may be necessary ; and
it is ordered that in case the persons so summoned fail to appear at
the time and place specified, or appearing refuse to be examined or to
make the production required, then that he, the sd sheriff, do proceed
against such persons as a witness or haver duly cited and failing to
appear, or refusing to give evidence, or make production according
to the law of Scotland ; and it is ordered that the sd sheriff be entitled
to such and the like fees, and the witnesses to such and the like
allowances as sheriffs when acting as commissioners under appoint-
ment from the Ct of Session, and as witnesses and havers are entitled
to in the Kke case, according to the law of Scotland ; and that if any
objection is stated to the sd sheriff, and by any witness, either on the
ground of his incompetency as a witness, or as to the production



128



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



Form 130.

Notice to
produce at
hearing of
petition.



required to be made, or on any other ground whatever, the sd sheriff
is to be at liberty to report such objection to this Ct, and suspend the
examination of such witness until the objections have been disposed
of ; and this Ct doth order that the sd sheriff do have and exercise all
the powers and privileges vested in him for the purposes of or in
relation to such examination as afsd by the Cos Acts, 1862 to 1867.
Contract Corp., Lintel, M. E., 20 Nov. 1877. A. 1113.
Made under sect. 127 of the Companies Act, 1862. See end of Chap. XLIII.



Notices to produce and admit Documents.
In the matter, «S:c.
Take notice that you are hby required to produce to the Ct, at the
hearing of the peton in these matters, all books, joapers, coj)ies of
letters, and other writings and documents in your custody, possession,
or power containing any entry, memorandum, or minute relating to
the matters in question in these matters or any of them, and particu-
larly those specified in the schedule hereto.
Dated, <S:c.

P. Q., Solor to the ahove-named Coy
[or as the case may be'].
To Mr. and Messrs. , his solors



\_or as the case may be~\.



SCHEDITLE.




Dates of Documents.



Form 131.

Notice to
admit.



The notice will be as follows :

In the matter, &c.
Take notice that upon the hearing of [the summons issued, &c., or
as the case may be] the [off (recr and) liqr of the above-named coy] pro-
poses to adduce in evidence the several documents hereunder specified,
and that the same may be inspected by the [respt to the sd summons],

his solor or agent, at , on , between the hours of , and

the [sd respt] is hby required, within forty-eight hours from the last-
mentd hour, to admit that such of the sd documents as are specified to
be originals were resply written, signed, or executed as they purport
resply to have been, that such as are specified as copies are true
copies, and such documents as arc stated to have been served were so



EVIDENCE.



129



served, sent, or delivered resply, saving all just exceptions to the
admissibility of all such documents as evidence in this cause.

Dated, &c. (Signed) Gr. H.,

Solor [or agent] for the sd \_off rccr and] I'lqr.

To E. F., solor [or aijent]for the sd .



Originals.



Doscz'iption of Documents.



Dates.



Copies.



Description of Documents.




Original or Duplicate served, sent, or delivered,
when, how, and by whom.



This form can readily be altered to suit the case of a motion or summons.

Notice to produce documents at the hearing of a petition, motion, or summons,
or at examination of witnesses, is frequently given. See Dan. Forms, pp. 450,
808 ; and R. S. C. 1883, Ord. XXXI. ; An. Pr. (1897) 656, 657.

Notice to produce is generally given by either side in the case of a winding-up
petition. As to giving notice to produce, and enforcing production of, documents
referred to in pleadings or affidavits, see Ord. XXXI. rr. 14, 15 et seq. ; Credit Co.,
11 0. D. 256 ; National Funds Assurance Co., 24 W. E. 774 ; Ilobcrts v. Oppcnlieim,
26 C. Div. 724.

R. S. C, 0. XXXII. r. 2. — Either pai*ty may caU upon the other party to admit
any document, saving all just exceptions ; and in case of refusal or neglect to admit,
after such notice, the costs of proving any such document shall be paid by the party
so neglecting or refusing, whatever the result of the cause or matter may be, unless
at the trial or hearing the Court or a judge shall certify that the refusal to admit
was reasonable ; and no costs of proving any document shall be allowed unless such
notice be given, except where the omission to give the notice is, in the opinion of
the taxing officer, a saving of expense.

R, S. C, 0. XXXII. r. 3. — A notice to admit documents shall be in the Form
No. 11 in Appendix B., with such variations as cii'cumstances may rccxuire. And
see An. Pr. (1897) 666, 667.

P. K



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



Proceedings of Board of Trade.

Sect. 30 of 1890. — (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 autho-
rized 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.



131



CHAPTER XIII.

SERVICE OF PROCESS.



Within the Jurisdiction.

Eule 21 of 1890. — All notices and other docmnents, for the service of which no
special mode is directed, may be sent by prepaid post letter to the last-known
address of the person to be served therewith ; and the notice or document shall be
considered as served at the time that the same ought to be delivered in the due
course of post by the post office, and notwithstanding the same may be returned
by the post office.

As to service of process by the high bailiff in County Coui't cases, see E. 20 of
1890, infra, Chap. LIII.

See E,. 178 of 1890 as to the application of the general practice of the Courts
" where no other provision is made by the Act or these rules."

For affidavit of service by post, see infra, Form 503.

For affidavits of personal service, see supra. Forms 38, 39.

As to substituted service, see p. 66, and Forms 138 ct seq.

The following rule must be borne in mind : — •

R. S. C. 1883, 0. XLI, r. 5. — Every judgment or order made in any cause or
matter requiring any person to do an act thereby ordered, shall state the time, or
the time after service of the judgment or order, within which the act is to be done,
and upon the copy of the judgment or order, which shall be served vipon the person
required to obey the same, there shall be indorsed a memorandum in the words, or
to the effect following, viz. : —

" If you, the within-named A. B., neglect to obey this judgment \_or order] by
the time therein limited, you will be liable to process of execution for the purpose
of compelling you to obey the same judgment [or order]."

This rule is not confined to cases in which the service of the order is personal. It
applies in all cases. Sampden v. Wallis, 26 C. Div. 740. The old form of indorse-
ment may be sufficient. Treherne v. Bale, 27 C. Div. 66.

Out of the Jurisdiction.

There is no express provision in the Companies Act, 1862, or in the Act of 1890,
or in the rules thereunder, as to the service of notices or orders out of the jui-isdic-
tion. In the Joint Stock Companies (Winding-up) Act, 1848, 11 & 12 Vict. c. 4o,
there was a provision (sect. 108) that every summons, notice, &c., mig'ht be served
upon any party by being sent by the post, although any such party might be out
of the jurisdiction of the Coiu-t ; but the Act of 1862 repealed that Act, and with it
the provision referred to. It appears, however, to have been considered that the
power of authorizing service out of the jurisdiction was i)-eserved by sect. 170 of



132 WINDING-UP BY THE COURT. [ClIAP. XIII.

the Act of 1862, or that the Coiirt had inherent jurisdiction to authorize service out
of the jui'isdiction in a winding-up where I'equisite, and for at any rate ten or
fifteen years before 1886, it was usual, where there were contributories and creditors
out of the jurisdiction, to obtain a general order for service as above. Hundreds of
such orders were made by Jessel, M. R., by Hall, V.-C, by Fry, J., by Chitty, J.,
and by other eminent judges. However, in 1887, it was held in Anglo- African Co.,
32 C. D. 348, that this practice was wrong, and that as Order XI. of the Rules of
the Supreme Court does not authorize service out of the jurisdiction in such cases,
there was no power in the Court to authorize service out of the jurisdiction of
any notice, or summons, or order intended to be the foundation of proceedings sub-
stituted for an action, as, for example, an order for a call. This decision was in
accordance with the principles laid down in Ee Busfield, 32 C. Div. 123. " Service
out of the jurisdiction is an interference with the ordinary course of law, for
generally Courts exercise jurisdiction only over persons who are within the territorial
limits of their jurisdiction. If an Act of Parliament gives them jurisdiction over
British subjects wherever they may be, such jurisdiction is valid, but apart from
statute a Court has no power to exercise jurisdiction over anyone beyond its limits."
Per Cotton, L. J. (See also In re Pearson, (1892) 2 Q. B. 263, and Russell v. Cambe-
fort, 23 Q. B. D. 526.) " A person resident abroad, still more ordinarily resident
and domiciled abroad, and not brought by special statute or legislation vsdthin the
jiu'isdiction, is prinid facie not subject to the process of a foreign court ; he must
be found within the jurisdiction to be bound by it." Per Lord Selbome, L. C,
BerMey v. Thompson, 10 App. Cas. 49.

However, it was subsequently held in Nathan Newman ^- Co., 35 C. Div.



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