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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p. 1, that notwithstanding the decision in Anglo-African Co., above referred
to, a notice of an appointment to settle the list of contributories of a com-
pany might be served out of the jurisdiction in manner provided by R. 60 of the
General Orders of November 11th, 1862. (See now R. 21 of 1890.) This was
decided on the ground that the notice was not intended to be the foundation of any
proceedings against the person on whom it was served. The liquidator is only per-
forming the duty cast upon him by the Companies Acts of giving certain informa-
tion to persons whom it is proposed to place on the list of contributories. A
foreigner may be on the list, and all that has to be done is to give him notice
that it is intended to place him on the list. So also notice may no doubt be given
to a credito:^ abroad to come in and prove, or be excluded. See further as to giving
notice. In re King % Co.'s Trade Mark, (1892) 2 Ch. 462. The result of the decisions
is, that although notice to settle the list of contributories may be served out of the
jurisdiction, an order can no longer be obtained here, unless, indeed, the con-
tributory has become bound by special provisions in the articles of association. (See
Copin v. Adamson, 1 Ex. Div. 17.) And where it is necessary to recover calls from a
contributory abroad, an action must be brought, so that Order XI. of the Rules of
the Supreme Court may be utilised, and hberty to serve the writ out of the juris-
diction may be obtained. It would seem desirable to make a new rule extending
Order XL, so as to permit the service of summons and orders against contributories
out of the jurisdiction ; they arc not in the position of a mere foreigner, seeing that
they are members of a corporation within the jurisdiction. The authority to make
rules for service out of the jurisdiction is clear, see Dr/aiunond v. Dr/aiunond, 2 Ch.
32. Jud. Act, 1875, 8. 24 ; Jud, Act, 1881, s. 19.

Form 132. Upon tho applicon of T. A. W., tlio off llqr of tlie above-named
General ordiT corporation, and ]iearing tlio solors for tlio applicant, and upon
forBor\icu out reading, &c., It is urdorod that service of any notice, summons, order,



or other procoodiug in these matters, not requiring personal service, f*/ jurisdic-

uj)on such of the contributorios whoso respective last-known addresses

or places of abode are situate out of England, and on whoso behalf

resply no appearance has been entered pursuant to the 62nd Eide

of the General Orders and Eules of this Court of the 11th Nov., 1862,

be effected by notice, copy of summons, order, or other proceeding,

together with a copy of this order, as a prepaid letter into any post

office receiving-house in England duly addressed to them resply to

their respective last-known addresses or places of abode, in the same

manner as service as afsd may be effected upon the other contributories

of the sd corporation whose last-known addresses or places of abode

are situate in England, and on whose behalf resply no appearance

shall have been entered as afsd. Oriental Bank Corporation^ Chitty, J.,

5th June, 1878; Government Security Fire Insurance Co.^ Limtd^ Hall,

V.-C, 5th June, 1878. A. 1130; Milan Tramioays Co.^ 17th April,

1877. B. 834; Kennoor Fisheries Co., 9th July, 1877. A. 1623.

The above is merely given by Wcay of illustration of the practice which prevailed
prior to 1887. See also the three following orders.

Upon the applicon of and , the liqrs of coy under the supervision of this J^ Orm loo,

Ct, and upon reading, &c., Order that the sd liqrs be at liberty to serve a copy of Libertv to
the summons dated, &c., issued in these matters from and under the seal of the serve sum-
Chambers of the judge at the instance of the sd applicants, together with a copy of mens out of
this order, upon W., of Bombay, in the Empire of India, at Bombay or elsewhere in Jurisdiction,
the Empire of India. Overend, Gurney % Co., Limtd, Malins, V.-C, 22nd Aug.

1878. B. 1502.

Upon the applicon of the off liqrs, &c.. Order that the applicants be at liberty to Form 134.
serve all summonses, orders, notices, and proceedings in these matters, not requiring y ., , 7~
personal service, upon the several persons named in the second column of the serve out of
schedule hereto, being resply contributories of the sd coy, by sending copies of this jurisdiction,
order and of such summonses, ordei's, notices, and proceedings in this matter tlu'ough
the general post-office, properly addressed to such persons resply at the places set
opposite to their respve names in the third column of the sd schedule, and being resply
places in the kingdom of Holland out of the jurisdiction of this Ct, until the appli-
cants receive proper notice of any change of residence of such contributories. And
order that fourteen days from the date of such service be the time for the sd persons
to appear or do any act referred to in such siunmonses, &c. resply. Add schedule
with three columns showing (1) Serial No.; (2) Name; (3) Address. Thomas TV.
Booker ^- Co., Fry, J., 20th March, 1879. B. 562.

Upon the applicon [as above], and that the times resply to be fixed in and by such Form 135.
summonses, orders, and notices, be the times resply for the sd persons to appear, or T ~j
to do any act referred to in such summonses, &c, resply. Indian Co-operative,
Chitty, J., 19th Dec. 1883. A. 1826.

Upon the applicon of the liqrs of coy, Oi'der that the sd liqrs be at Form 136.
liberty to serve the several persons whose names are set forth in the second -j^.^^^, ,
column of the schedule hereto who resply claim to be creditors of the sd serve credi-



tors out of coy, and wlio reside out of the jurisdiction of this Ct, with notices to prove
with peremp- their respre claims or the unadmitted parts thof resply against the sd
tory notice to coy, and to file their affts in support thof, and to give notice thof to

Messrs. , the solors for the liqrs of the sd coy, on or before 2nd

May, 1877, and to attend at the Chambers of the Master of the Rolls
in the EoUs Yard, Chancery Lane, in the county of Middlesex, England,
on Saturday, 5th May, 1877, at 11.30 of the clock in the forenoon,
being the time appointed for hearing and adjudicating on the sd claims
resply, by sending such notices, together with a copy of this order, by
post in a prepaid letter addressed to the sd several persons resply, ac-
cording to their respve addresses as appearing opposite their names
resply in the third column of the sd schedule, such notice to be posted
on or before the 20th April, 1877. And order that such service be
deemed good service upon such persons resply.

No. on List of Claims.

Name of Creditor.

Address and Description.



A. B.


Augsburg, Germany.
No. — , Eue, &c. Paris.

Stviss Times Co., Jessel, M. E., 16th AiDril, 1877. B. 649. And see
similar order, Oriental Telegram Agency, Jessel, M. E., 22nd June,
1877. B. 1118.

Form 137. Upon the applicon of the off liqr, &c., Order that the applicant be
Annthr-r ^^ liberty to serve by post out of the jurisdiction of this honourable

Ct the several persons mentd in the schedule hereto with notice that
unless they do resply produce to the applicant or to this Ct the secu-
rities on which they claim to be creditors of the sd coy, their claims
resply will be disallowed, and they will be excluded from all dividends
declared or to be declared, and the assets of the coy will be forthwith
distributed without further notice. And order that a coj)y of this order
be also served in like manner upon the sd claimants named in the
schedule with the sd notice.




Amoimt claimed.

Berlin Great Market, 8fc. Co., M. B., 2nd Juno, 1877. A. 1063.


For order giving liberty to serve, out of the jurisdiction, summons for delivering
up to liquidator a messuage situate in Dublin, see Iniernational Talent Tulp Co.,
18tli June, 1877. A. 1142.

For order giving liberty to serve summons for call in Gruemsey and Ireland, see
TcignmoiUh, ^-c. Co., M.R., 21st June, 1878. B. 1207.

For order giving liberty to serve all summonses, orders, &c. on two contributorics
resident in Belgium and Scotland, see Tinfoil Decorative Co., Bacon, V.-C, 12tli
June, 1877. B. 1122.

Suhstituted Service.

R. S. C. 1883, 0. LXVII. r. 6. — Where personal service of any writ, notice,
pleading, summons, order, warrant, or other document, proceeding, or written
communication, is required by these rules or otherwise, and it is made to appear to
the Court or a Judge that prompt personal service cannot be effected, the Court
or judge may make such order for substituted or other service, or for the substitu-
tion of notice for service by letter, public advertisement, or otherwise, as may be
just. And see Seton on Decrees, 5th ed. pp. 9 ct scq. for various forms including

Applications for orders for substituted service must be supported by affidavit,
setting forth the grounds on -which the application is made. R. S. C. 1883,
Ord. X.

Upon the applicon of tlie liqrs, &c., Order that service of this order Form 138.
and of a copy of the summons issued in these matters, dated the 17th Order for
April, 1878, by leaving a copy of such summons and of this order at substituted

-TT T • T 1 -TT 1 " J service 01

the Hotel, situate , and at the Hotel, situate , summons.

addressed to J. in the sd summons named, be good and sufficient
service of the sd summons upon the sd J. Forest of Dean, Sfc. Co..,
M. E., 30th April, 1878. A. 763.

Upon the applicon of , off liqr, &:c., and upon reading, &c., It Form 139.

is ordered that service of the sd orders dated, &c., upon M., of &c., a q ^ T
contributory of the above-named coy, by sending copies of the sd substituted
orders resply, together with a copy of this order, enclosed in an ^^^^'^^^ °*
envelope addi-essed to the sd M. at the address afsd, with the proper contributory.
postage stamps affijsed thereto as a prepaid letter, and duly registered,
be deemed good and sufficient service of the sd orders resply upon the
sd M. Patent TuniielUng, S^-c. Co., Chitty, J., 1st Feb. 1886. B. 66.

Upon motion this day made unto this Ct by counsel for K., who Form 140.
alleged that on the 4th Dec. 1878, the sd K. presented a peton unto Order for
this Ct praying that J. might be removed from his office of off liqr of substituted
coy, and might be ordered to deliver up all the property, cash, books pg^Jf^jj^
of accounts, and papers, in his possession or control belonging to the
sd coy, and file proper accounts forthwith, and that a liqr might
be appointed in the place of the sd J., and that all necessary and



proper dii'ections might be given for tliat purpose, or that such further
or other order might he made as the nature of the case might requii-e ;
and that the sd petrs have been unable to serve the sd peton on the
sd J., as by an afft of the sd petrs, filed 6th Dec. 1878, appears, and
upon reading the sd peton and afft, Order that service of a copy of the
sd peton (having this Ct's indorsement that all parties do attend hereon
on 13th Dee. 1878), together with a copy of this order, upon F., of
Manchester, be deemed good service of the sd peton upon the sd J.
Ilain Prmtmg, Sfc. Co., Hall, V.-C, 6th Dec. 1878. B. 2011.

Form 141.

Another :
order for
service of

Upon the applicon of S., the off liqr of the coy, and upon hearing
the sob' for the applicant, and upon reading an afft, &c.. It is ordered
that service of the summons dated 10th Jan. 1880, issued from and
imder the seal of the Chambers of the sd Master of the Eolls, requiring
all parties concerned to attend at the Chambers of the sd judge in,
«S:c., on Monday, 19th Jan. 1880, at 11.30 of the clock in the forenoon,
upon the hearing of an applicon on the part of S., the off liqr, that

B., of , the late off liqr, might be ordered, within four days after

service of the order to be made thereon, to leave his accounts of his
receij)ts and payments at the Chambers of the judge, and to pay the
balance as might appear due from him on the sd account forthwith to
the Bank of England to the account of the off liqr of the coy ; and
that the costs might be costs in the winding-up. And of the two
indorsements on the sd summons, the first of which is in the words
and figures following: — "The 1st day of March next, at 11.30 of the
clock in the forenoon, is appointed for the sd W. B. to attend at my
Chambers as within mentd, dated this 19th day of Feb. 1880. George
Jessel, Master of the Eolls " ; and the second of which is, &c.,
together with a copy of their order upon kS., the trustee in banki'uptcy
of the sd W. B., be deemed good service on the sd W. B. Nevj
Amicable Life, M. E., 28th Feb. 1880. B. 571.

Form 141a. On the part of the liqr, kc, that service of the summons issued in
this matter on the day of , by \Jiere specify mode of service


j)roposed, e.y., serving a copy thof together with a copy of the order

to bo made hereon, on N., of ], may be deemed good and sufiicient

service on A., of , a respt in the sd summons named.






See Er. 23 and 24 of April 1892 (Chap. IX.) aa to leaving documents for com- Completing
pletion of and settling the winding-up order. order.

The practice of leaving a copy of the winding-up order at Chambers and taking
out a summons to proceed is abrogated by the Rules of 1890.

But " the liquidator "—a term which, under sect. 4 and R. 2 of 1890 includes the Directions,
official receiver when acting as liquidator — "may apply to the Court in manner
prescribed for directions in relation to any particular matter arising under the
winding-up." Sect. 23 (3) of 1890.

R. 174 of 1890. — Where the attendance of the liquidator's solicitor is required on Attendance
any proceeding in Coui-t or Chambers, the liquidator need not attend in person, °^ liquidator,
except in cases where his presence is necessary in addition to that of his solicitor,
or the Court dii'ects him to attend.

Attenda7ice atid Appeat-ance of Parties.

R, 173 of 1890. — Every person for the time being on the list of contributories of Creditors and
the company, and every person whose proof has been admitted, shall be at liberty, contributories
at his own expense, to attend proceedings, and shall be entitled, upon payment of
the costs occasioned thereby, to have notice of all such proceedings as he shall by
written request desu'e to have notice of ; but if the Court shall be of opinion
that the attendance of any such person upon any proceedings has occasioned any
additional costs which ought not to be borne by the funds of the company, he may
direct such costs, or a gross sum in lieu thereof, to be paid by such person ; and
such jDerson shall not be entitled to attend any further proceedings until he has
paid the same.

R. 173a of 1890.— (19th May, 1896.)— (1.) No creditor or contributory shall be Appearance
entitled to attend any proceedings in Chambers, unless and until he has entered in book.
a book, to be kept by the registrar for that purpose, his name and address, and the
name and address of his solicitor (if any), and upon any change of his address or of
his solicitor, his new address, and the name and address of his new solicitor.
(2.) This nde shall come into operation on the 1st day of June, 1896, and may be
cited with the Companies (Winding-up) Rules, 1890, as R. 173a.

This rule is taken from R. 62 of the General Order of Nov. 1862.

As to rights of persons entitled to attend, see Brampton Hailwai/ Co., 11 Eq. 428 ;
in which case Bacon, V.-C, said : " Having under the rule the right to attend the



proceedings, they have, as I read it, equal rights with those which a party to a suit
woidd have, and those rights would include the right to cross-examine."

But it does not follow that the Court is bound to hear all who attend. Thus in
Anglo- Indian Co., Grei/s case (W. N. (88) 137; 59 L. T. 208), Kay, J., refused to
hear a creditor as well as the liquidator. And an examination under sect. 115 is
not to be considered part of the proceedings. Grcy''s Brcxcer]] Co., 25 C. D. 400 ;
Norwich Equitable, 27 Ch. D. 515.

Form 142. Upon the applicon of B. and S., trading, &c., of

Liberty to
creditors to

order neces-

-, wlio have

been admitted as creditors of the above-named coy, and upon hearing
the solors for the applicants and for the liqr of sd coy, and npon read-
ing an order dated 1st July, 1874, and an order dated 2nd Aug. 1877,
Order that the said B. and S. be at liberty at their own expense to
attend the proceedings before the judge under the sd order dated
1st July, 1874, and upon the terms and conditions mentd in the [60th
Euleof the Orders of Court, dated 11th Nov. 1862, 71010 "E. 173 of
the Cos Winding-up Eules, 1890 "]. And order the sd B. and S. to
pay to the sd A., the liqr, one guinea for the costs of this applicon.
Norwich Provident Co., Bacon, V.-C, 21st May, 1878. B. 1241.

Even under the old practice, although it was not unusual to make an order as
above, no such order seemed necessary. R. 60 of 1862 gave liberty to attend
(subject to R. 62), and accordingly some of the chief clerks declined to make orders
as above. A similar liberty is given by E. 173 of 1890, supra.

For order in favour of a person claiming to be a creditor, see Harwich Sarhoitr
Co., HaU, V.-C, 6th May, 1878. A. 867.

Form 143. Upon the applicon of W., of , a contributory, &c., Order that

the sd "W. be at liberty at his own expense to attend the jDroceedings
before the judge in these matters. And order that the sd "VV., upon
payment of the costs occasioned thereby, have notice of all such pro-
ceedings as he shall by written request desire to have notice of. Cape
Breto7i Co., Malins, V.-C, 9th March, 1878. A. 423.

Libei'ty to
to attend.

Form 144.

Liberty to
holders to

of creditor.

Upon the applicon of W. H. and B. L. resply, as holders of A
dobontm-es of the above-named coy, &c.. Order that the applicants be
at liberty to attend all proceedings in the winding-up of the sd coy
relating to the sale and disposition of the assets of the sd coy com-
prised in the indenture of 14th Dec. 1875, and all proceedings relating
to the pajTnont or other dealing with the proceeds thof. And order
that the costs of such attendances, including the costs of both the sd
applicons, bo added to the applicants' securities, and the ppal and
interest duo on their debentures. Hooper'' s Telegraph Works, M. E.,
14th Juno, 1877. A. 1171.

For order giving executors of wiU of creditor liberty to attend proceedings
relating to sale of assets, see Central American File Co., Hall, V.-C, 21st May,


1878. A. 1851. As to impropriety of giving dobcnturo-liolders liberty to attend
at company's expense, see Hamilton's Winchor Iromoorks, 27 W. R. 827.

R. 61 of 1862, which empowered the judge to appoint a contributories', or
creditors' representative, at the expense of the company, is now annulled, so far as
regards compulsory winding-up, and there is no similar provision in the Rules of
1890, the supervision of the committee of inspection and of the contributories and
creditors in general meeting, being, presumably, considered sufficient. But it must
be remembered that, under R. 178 of 1890, where no other provision is made by the
Acts or Rules, the existing procedure applies, and R. S. C, 1883, 0. XVI. r. 9,
and 0. LV. rr. 40 — 43, seem to provide adequate macliinery for appointing con-
tributories' or creditors' representatives. And for a representation order made since
the Act of 1890 came into operation, see Form 145.

For order appointing committee of contributories to attend at expense of com- Committees
pany, see International Life Assurance Society, Malins, V.-C, 29th Nov., 1873, A.
2983. For appointment of consultative committee of creditors, see Oriental Bank
Corporation, Cliitty, J., 21st Jrdy, 1884, B. 927. For order as to remuneration of
covtamtiee, seo Overend Gurneij 1^- Co., \?>tla.A^Tt:i\, 1877. B. 705. See, for appointment
of committee (for special pui*poses) of contributories. Copper Miners'' Co., Malins,
V.-C, 15th March, 1875. A. 2078; of creditors, Cornish Consolidated, ^e., Corporation,
MaHns, V.-C, 11th April, 1878. A. 724.

Even under the old practice, a creditor's representative was very rarely appointed,
except for some limited purpose. See Maclver's Claim, 5 Ch. 424 ; 23 L. T. 38 ; 18
W. R. 794.

Upon the applicon of , claiming- to be unsecured creditors of tlie Form 145.

coy, by summons dated, &g., And upon bearing the solors for the Re r s nta-
applicants and for A. and C. J. S., the liqrs of the above-named coy, tion order.
and counsel for the D. Corporation, Lmtd., And upon reading an
order, &c.,

It is ordered that the sd E. be appointed to represent the unsecured
creditors of the sd Hansard Publishing Union, Limtd, under E. 61 of
the General Rules of 1862, on the hearing of the motion by the sd
D. Corporation, Limtd, against the above-named Hansard Publishing
Union, Limtd, herein, notice of which is dated the 1st June, 1891.

And it is ordered that the costs of this apx^licon be reserved. IIcoi-
sard Puhlishinrj Union (1891, H. 057), Chitty, J., 2nd Nov., 1891.

For order giving liberty to attend a taxation as representative of a class, see
Form 660, Chap. XL VIII.










on order to

wind up.

Is liquidator
May be re-
ceiver in
Is liquidator
■when no other

of official
receiver and

S. 4 of 1890. — (1.) On an order being made by the Court for winding-up a com-
pany the officer hereinafter mentioned shall, by virtue of his office, become the
provisional liquidator of the company, and shall continue to act as such until he or
another person becomes liquidator and is capable of acting as such.

(2.) The said officer shaU be the official receiver, if any, attached to the Court for
bankruptcy purposes, or if there 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 purpose by the Board of Trade. Any
such officer shall, for the purpose of his duties under this Act, be styled the official

(3.) When a person other than the official receiver is appointed liquidator of a
company he shall be styled liquidator, and not official liquidator of the company,
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 there-
from. 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 information and such access to and facilities for inspecting
the books and documents of the company, and generally such aid, as may be
requisite for enabling that officer to perfoi'm his duties under tliis Act.

(4.) If any vacancy occurs in the office of liquidator of a company, the official
receiver shall, by virtue of his office, be the liquidator dui'ing the vacancy.

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

(G.) Where an application is made to the Court to appoint a receiver on behalf of
the debenture holders or other creditors of a company the official receiver may be so

S. 6 (3) of 1890. — In case a liquidator is not appointed by the Court, the official
receiver shall be the liquidator of the company.

S. 27 of 1890. — (1.) The Board of Trade may, with the approval of the Treasury,
apjtoiiit such additional officers as may be required by the Boai-d for the execution

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