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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1890— not the affidavit referred to in R. 129.



In the matter of tlie Cos Acts, 1862 to 1890,
and

In the matter of the Coy, Limtd.

By virtue of the powers conferred upon them by the Cos (Winding-
up) Act, 1890, and in accordance with the provisions of the Cos
(Winding-up) Eules, 1890, the Board of Trade do hereby order you
to submit to them within seven days from the date of service hereof
upon you an account verified by afft of the sums received and pd by
you as liqr of the above-named coy.

Dated this day of , 189—.

By the Board of Trade.
[A. B.] Chief Bankruptcy Clerk, duly authorized in that
behalf by the President of the Board of Trade.
To .



Note. — The account should be furnished in a form similar to Form
No. 75 in the Cos (Winding-up) Eules. It should be furnished in
duplicate, and be verified by afit in a form similar to Form No. 75a.

If nothing has been received or pd on account of the coy, an afit of
no receipts or payments should be furnished in a form similar to Form
No. 75a.

Forms can be obtained from the Registrar of Joint Stock Cos,
Somerset House, AV.C, or from a Law Stationer.

The account or afft should be addressed to the Inspector-General in
Cos Liquidation, Board of Trade, 4, Whitehall Yard, London, S.W.

This is the order referred to in R. 129 (1) of 1890, supra.



Enfoecing Accounts under Sect. 15 akd Er. 128 and 129 op 1890.

There seems to be no difficulty about enforcing the delivery and audit of an
account under sect. 15.

The order of the Board of Trade [Form 228] is served personally on the liquidator.
In some recent cases commenced by the Board of Trade the five forms next follow-
ing were used, and a form of application to set down for hearing, which was un-
necessary, as pointed out in previous editions, and has now been discarded.

Under R. 10 of April, 1892, supra, in case of a " mindiiiff-up in the High Court to
which these rules appbj [an application can bo] bo made and dealt with by the judge
of the High Court upon motion." The words in italics certainly include every



PROCEDURE UNDER S. 15 OF 1890. 257

compulsory winding-up before Mr. Justice Vaughan "Williams, and probably, also
(see s. 151 of 1862), every winding-up subject to the supervision of theHigli Court,
and not retained by the Chancery judges under R. 1 of April, 1892, and perhaps
to every voluntary winding-up in which the first application to the Court would be
taken before Mr. Justice Vaughan Williams. It may be objected that if this be so,
there is nothing on which clause (d) of R. 130a (p. 247) can operate, but the answer
may be that clause (d) would operate in respect of winding-up matters in the Iligh
Court retained by Chitty, North, Stirling, and Kekcwich, JJ., under R. 1 of April,
1892. On the other hand, the expression is " in " the High Court and a voluntary
winding-up is not "in" the Court.

The application, when in the High Court, whether before the judge as winding-
up judge or as the bankruptcy judge, is by motion in open Court. See Rr. 3 and
IG of April, 1892.

In some recent cases the proceedings were intituled —
lu the High Court of Justice.

In Bankruptcy.
In the Matter of the Companies Acts, 1862 to 1890, and the Bankruptcy Act, 1883,

and
■ In the Matter of the Company, Limited.

But it is submitted that in every case, unless some provision of the Bankruptcy
Act is to be enforced, the ordinary title [Form 1] is sufiicient. Where this is
sought, or ex abundanti cauteld, where the winding-up is voluntary, the title should
be as in the following form : —

In tlie Higli Court of Justice.

Cos (Winding-up).

Mr. Justice Williams.

In the matter of the Cos Acts, 1862 to 1890, and Form 229.

the Bankruptcy Act, 1883, 'Z^T, ~

^ '' ' ' Title of pro-

and ceedings when

In the matter of the Coy, Limtd. liquidation

voluntary.
In bankruptcy, on the construction of sect. 162, sub-sect. 2 (b) of the Bankruptcy

Act, 1883 (which is in the same terms as R. 129 (1) of 1890), it has been held that

on an application to enforce the requirements of a Board of Trade order to account,

the Board need not show that the trustee has any funds remaining in his hands.

In re Calderwood, 6 Mor. Bk. Rep. 10-i, Ap., 1889.



ITitle as in Form 229.] Form 230.

Whereas by an order of the Board of Trade, dated the day of ^ ,. 7

1 89 — , you, X. Y., the liqr of the Coy, Limtd, were ordered to submit motion for

to them "within seven days from the date of service upon you of such °5 3' °!^ ,
"^ i ./ liquidator to

order an account verified by afft of the sums received and pd by you submit

as such liqr as afsd. And whereas the sd order was served upon you 'verified
, ^ i .^ account,

the sd liqr personally on the day of 18 — . And whereas

you have not complied with the sd order. Take notice, that applicon

will be made to the Ct, sitting at the Eoyal Cts of Justice, Strand,

in the county of London, by counsel on behalf of the Board of Trade,

on Wednesday, the day of 189 — , at half -past ten o'clock in

the forenoon, or so soon thereafter as counsel can be heard, for an

P. s



258



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



order that you do -u-ithin four days from the date of service of the
order to be made hereon upon you, comply with the sd order of the
Board of Trade hinhefore recited, and that you do pay the costs of and
incident to this applicon and such order. And further take notice,

that the affts of Frank Lowson Clark, John Samuel Purcell, and ,

and the exhibits therein referred to, copies of which are dehvered to
you herewith, and the correspondence between you and the Board of
Trade or their solor, will be used in support of this applicon.
Dated this day of Jan. 189 — .



To Mr.



of



and to his solor.



Solor to the Board of Trade,
Whose address for service is

4, Whitehall Yard, London, S.W.



Form 231.

Affidavit of

Kegistrar of

Joint Stock

Companies

proving

voluntary

winding-up.



{Title as in Form 12^.)

I, John Samuel Purcell, a Companion of the most Honourable Order
of the Bath, of Somerset House, Strand, in the county of London,
Registrar of Joint Stock Cos, make oath, &c.

1. The above-named coy was, on the day of , 1881,

incorporated under the Cos Acts, 1862 to .

2. On the day of , 18 — , there was received from the sd

coy, pursuant to sect. 53 of the Cos Act, 1862, a printed copy of a
special resolution passed by the sd coy requiring the coy to be wound
up voluntarily, and appointing Mr. X. Y., of , liqr for the pur-
poses of such winding-up.

3. The sd resolution purported to have been passed on the

day of , and confirmed on the day of , at which date

the registered office of the sd coy was situate at .



Form 232.

Affidavit of
chief bank-
ruptcy clerk
proving non-
coinj)li;nico
with Board of
Trade order.



{Title as m Form 229.)

I, Frank Lowson Clark, of 4, Whitehall Yard, Westminster, in the
county of London, Chief Bankruptcy Clerk to the Board of Trade,
make oath and say as follows : —

1 . On the day of , the Board of Trade did, in pursuance

of the powers given to them by the Cos (Winding-up) Act, 1890, and
the Cos (Winding-up) Pules, make an order directing X. Y., the liqr
of the above-named coy to submit to them within seven days from the
service of such <n-dor upon him an account, verified by afft, of the
sums received and pd by him as such liqr since .

2. I am informed and believe that the sd order was served upon the

sd liqr on the day of , 189 — , by H. C, and I refer to the

alFt of the sd H. C, witli reference thereto.



PROCEDURE UNDER S. 15 OF 1890.



259



3. Up to tlie time of my swearing tliis my af£t tlio sd liqr has not
complied with the sd order of the Board of Trade.



{Title as in Form 229.)

I, H. C, of &c., make oath and say as follows : —

1. I did, on the day of , 189 — , serve upon



Form 233.

Affidavit of
service of
-, Ot &C., Board of

the order of the Board of Trade, dated &c., of which a copy is now Trade order,

produced and shown to me marked " ," by delivering the same

to the sd at afsd [by sending the same in a registered

post letter addressed to the sd , at , lohich sd letter loas on tlie

day of —, 189 — , placed by me in the official post-bag provided

for the use of the Board of Trade by the Postmaster- Ge?ieral.^

Sivorn at .



\_Title, see Form 229.]



Form 234.



Upon motion this day made unto this Ct by counsel on behalf of P^^g^^^i^^"^
the Board of Trade, and no one appearing for the respt X., although verified
ho has been duly served with notice of the sd motion, and with copies ^^^^ount.
of the evidence intended to be used thereon, as by afft appears, and
reading the afft of F. L. C, the afft of J. S. P., and the afft of A. R.,
all filed the 10th July, 1896, and the exhibit A. E. in the last mentd
afft referred to, It is ordered that the sd respt X., the liqr appointed
in the voluntary winding-up of the sd coy, do, within four days fi-oni
the service of this order upon him, submit to the Board of Trade an
account, duly verified by afft, of the sums received and pd by him as
such liqr as afsd since the 30th Sept. 1894. And it is ordered that the
sd X. do pay to the Board of Trade their costs of the sd motion, such
costs to be taxed. John B. Shipley ^- Co. (00167 of 1896), Yaughan
Williams, J., 15 July, 1896. See also Seamless Hosiery Co., Vaughan
Williams, J., 11 Feb. 1893; Marriott and Williams (0045 of 1896),
Vaughan Williams, J., 16 April, 1896.

This form is altered to suit the circumstances of the case.



Payment in op Unclaimed and Undistributed Assets.
Cos (Winding-up) Act, 1890, s. 15.
Form C. No. 1. — Application for Eeceivable Order. E. 0. No.



I, A. B. of



Form 235.

Application
for paying in
or receivable
order (r. 131).



Instate address and occupatio7i], liqr of the under- Form C.



mentioned coy, hby apply to the Board of Trade for a receivable

s2



260 WINDING-UP BY THE COURT. [ChAP. XXIV.

order to pay into tlie cos liquidation account at the Bank of England
the sums of which the following are the particulars :

\_Nanie of coy .]

\_State lohether wound up voluntarily ^ or hy order of the Ct^ or under the

supervision of the Ct.~\
[_Date of Winding-up Order or of resolution for voluntary ivinding-up
(as the case may be).]

Here follow four columns.
Col. 1 is headed — "Nature of fund, whether dividend (first or
second, &c.), composition instalment, undistributed balance, or what
other fund.

"In the case of dividends distinguish between amounts due to
creditors and to contributories."

\_A7id i7i the column itself are the following ivords ;]
"Undistributed balance."

\_A71d be7ieath~\,
' ' Dividends or other apportioned amounts remaining unclaimed or
impaid, viz. : — "

Col. 2 is headed — "Unclaimed dividends, or undistributed moneys
which have remained unclaimed or undistributed for six months."
[_This colmmi is sub-divided i^ito three parts ^ headed resply — ]
(a) " Names and addresses of persons, if any, to whom dividends,
or other funds are due." (b) " Date when dividend (if any) de-
clared." (c) "Amount."

Col. 3 is headed — "These columns to be filled in by Board of Trade,"
a7id is subdivided into four parts^ headed resply : —
" No. of paying- out order."
"Date of payment out."
" Amount of payment out."
" Examined."

Col. 4 is headed — "Remarks."

Under parts (a) and (b) of col. 2 are the words — " Further amount
of dividend, if any, as per schedule attached." These additional
schedules should only be used ivhoi the space in this form is insufficient.
Beneath this are the words, " Total remittance." Beneath the columns
are spaces for date and signature ; and the ivords, " Note. — The person
paying in should add any other particulars that the circumstances
render expedient. Ho is responsible for the full disclosure of all the
facts necessary for his discharge. An abstract of the particulars on
this form should be made on Form C, No. 2 [Form 237, infra'], and
})oth forms should bo returned to the Inspector-General in Bank-
rui)t(;y, 4, White] lall-yard, London, »S.W."

The above furm may bo obtained from the Board of Trade, and the paying in or
receivable order (hoc next form) la an authority to Bank of England to receive the
payment. See R. 131 of 1890, svpra.



PROCEDURE UNDER S. 15 OF 1890. ^^1

Remittances may be sent, accompanied by this receivable order, either to the Bank Form 236.

of England, or to the Branch Bank of England : — Law Courts, London, E.C. — ; ;

. 1 . A Receivable

Cos Liquidation Account. order imder

•^°- • Eeceivable Order. rule I3l.

Name of Coy .

Board of Trade, 189—.

Please to receive from the sum of £ , and place the same

to the credit of the cos liquidation account.

Cosmo Monkhottse.
To the Agent of the Bank of England, Law Cts Branch, London, E.G.
N.B. — All drafts and cheques to he drawn in favour of the cashiers of
the Bank of England or order, and crossed Bank of England.

Cos (Winding-up) Act, 1890, s. 15. Form 237.

Form C. (No. 2).-Certificate. ^ Certificate of

Abstract of Pariictdars of Application. receipt under

[Name of coy. 1 sect. 15 (3),

\8tate whether wound up voluntarily, or hy order of the Ct, or under the Qf application

supervision of the Ct.'] therefor.

[Date of winding-up order or of resolutio7i for voluntary windiny-tip (as j^q^ 2. *'

the case may be).]
Amount proposed to be remitted — £ s. d.

Undistributed balance ,, ,,

Dividends or other apportioned amounts



)> u



Total £

Dated this day of , 189—.

(Signature) .

[The certificate of receipt heloio is to be filled up by the Board of
Trade.']
Eeceivable Order No. .

It is hereby certified that [name of liqr] did on the day of ,

189 — , pay into the cos liqtiidation account at the Bank of England

the sum of pounds, shillings, and pence, alleged by

him to be due to the cos liquidation account, in accordance with his
application to the Board of Trade, of "which the particulars are thereto
annexed.

Dated this day of , 189 — .

A. B.,
Assistant-Secretary, Board of Trade.

[This form must in all cases be filled tip and i-eturned to the Inspector-
General in Bankruptcy, 4, Whitehall Yard, London, S. W.^ with Form C.
{No. 1).]

Enforcing Payment in.

As to the Courts to which applications are to be made for enforcing payment of
moneys into the cos liquidation accoimt, under sect. 15 (4) of 1890, supra, see



262



WINDING-UP BY THE COURT. [ClIAP. XXIV.



E. 130a (R. 7 of April, 1891) and R. 16 of April, 1892, sjyura, and the observations
at p. 256.

The provisions of and incoi-porated by sect. 15 (4) apply whether the winding-up
is compulsory, voluntary, or under supervision.

The Eoard of Trade cannot, apparently, itself make an order for payment in of
moneys under sect. 15.

An application must be made to the proper Court by motion on notice to the
liquidator (Rr. 3 and 16 of April, 1892), supported by an affidavit of the Registrar
of Joint Stock Companies verifying the liquidator's statement, and an affidavit of
the Inspector-General with reference to the particulars of the payments to be made.

It seems to be settled now that no formal application is necessary for leave to set
the matter dovsm. The necessary forma have been drafted for the Board of Trade
by competent hands.



Form 238.

Liquidator's
application
for payable
order (undis-
tributed
funds).
Form 17a.



Payment out of Undisteibtjted Funds.

Cos (Winding-up) Act, 1890, s. 15.

Applicon for Payable Order.

Undistributed Fimds.

In the matter of [insert full name of coy'] the Coy, Limtd.

\_State whether wound up voluntarily , or by order of the Ct, or under
the supervision of the Ct.']

I, , of , the liqr of the ahove coy, make oath and say : —

That, as liqr of the above coy, I did, on the day of , 189 — ,

pay to the credit of the cos liquidation account the sum of £

sterling, as undistributed funds in the above matter :

That there is now payable to the persons specified in
the schedule hereto annexed, in resj)ect of the claims,
and in accordance with the resolutions or other legal
authorizations severally specified in the said schedule
sums amounting in aU to £ ,, ,,

That there are funds in the hands or under the control
of the liqr, apart from the moneys pd into the cos liqui-
dation account, and available for payment of the above
amount, amounting to £ ,, ,,

And that the balance required to be met out of funds
at the credit of the coy with the cos liquidation ac-
count is £ ,, ,,

That I request the Board of Trade to issue payable order or orders
on the cos liquidation account for the above last-mentioned amount
in respect of the sums above claimed, and in favour of the several
persons specified in the schedule, and to forward the same to me
at .

[77*6 schedule contains five columns^ of tvhich (1) is blank. The
other columns are headed rcsply — (2) "Name and Address of Person
to whom Money is due." (3) "Nature of Claim. (Whether in respect



PROCEDURE UNDER S. 15 OF 1890.



263



of Costs, Remuneration, Dividends, Returns to Shareholders, Com-
position Instalment, or otherwise.) (Claims by Creditors and by
Contributories should be distinguished.)" (4) ''Amount of Claim."
(5) " How Authorized. (Whether in pursuance of a resolution of
the Coy, or of the Creditors, or allowed by the Ct or taxing Officer.)"

l_Ai the foot of the cash column are the ivords : "Total amount, £ ."

Below the schedule are the words following : — hi the mar y in: "This
affit should be made before a magistrate, justice of the peace, or com-
missioner appointed to administer oaths," and opposite this the usual

jurat, "Sworn, &c.," a^id the ivords, "Signature of Liqr, ."

Beloio are the ivords ;]

Notes. — (1.) In windings-up by the Ct the counter-signature of
the chief clerk is required. See R. 133 (2).

(2.) Claims in respect of remuneration and costs should be accom-
panied by evidence that they have been allowed by resolution of the
coy, by the Ct, or by the taxing officer, as the case may be.

Ex , 189—. No. of R. 0. .

The above is tlie form dii-ected by the Board of Trade by R. 132a (R. 6 of April,
1891), supra. The Board thereupon directs cheques to be issued to the liquidator
for transmission to the persons to whom the payments are to be made.

See also R. 133 of 1890, supra.

The expression "chief clerk" does not in R. 133, as in other Rules of 1890, mean
"registrar" in proceedingsbeforoVaughan "Williams, J. (seeR. 35 of April, 1892), the
reason being apparently that this Rule only applies in the case of official liquidators,
i.e., in cases in which the winding-up order was made before 1st Jan. 1891.

But the liquidator is not the only person who may apply for payment out.

Sect. 15 (5) of 1890, and R. 132 of 1890, enable creditors and contribtitories, with
the certificate of the liquidator, to make application for payment out, as in the two
forms following.



Cos (Winding-up) Act, 1890, s. 15.

Application for Payable Order.

Unclaimed Dividends.

In the matter of .

I, , of , make oath and say : —

That I [if afft is made on hehalf of a firm, insert the words, "partner
of the firm of A. B., and that the said A. B."] have duly proved my

debt as a creditor in the above matter for pounds shilKngs

and pence sterling'; and that the same has been admitted by the

liqr, and that ["I am " or "they are"] entitled in respect thereof to a
\Jiere state tvhether first, second, or other dividend, cotnposition, instal-
ment, ^v., which is claimed'], amounting to pounds shillings

and pence sterling.

That the reason of ["my" or "their" not having heretofore applied
for payment of the same is that .



Form 239.

Application
by creditor
under

rule 132, and
liqiiidator's
certificate.
Form C,
No. 10.



264 WINDING-UP BY THE COURT. [ChAP. XXIV.

That I request the Board of Trade to issue to , the liqr, a pay-
able order on the cos liquidation account for the same in ["my" or
"their"] favour.

(Signature) ,

Sworn at , this day of , 189 — .

Before me .



[In the margin of the form, opposite the jurat, are the following notes] : —

" This a£ft should he made before a magistrate, justice of the peace,
or commissioner appointed to administer oaths, or before such persons
at are mentd in sect. 128 of the Cos Act, 1862 (^printed at hack of this
form).

" After the afft has been s-worn, this form should be sent to the liqr
for completion."



I, , of , liqr of the above coy, certify that the above claim

was duly proved by the above-named on the day of ,

189 — , and admitted by me, and that the sd is entitled out of

moneys pd in by me on the , 189 — , to the credit of the Cos

Liquidation Account with the Bank of England, to payment of the

above-mentd amount of pounds shillings and pence

sterling.* (£ s. d.)

Dated at this day of , 189 — .



(Signature)



Liqr.



* If the creditor holds bills, the liquidator must add to the above certificate the

words " on production of bills for 1, as per particulars endorsed hereon," and

state the particulars on the back thereof.

The Inspector-General in Companies Liquidation,
Board of Trade,
4, Whitehall Yard, London, S.W.

Exd. .

Number of receivable order .



Form 240.

Ditto by
contributory.
Form C,
No. 10a.



[^Title and commencement as in last form.~\

That I [^partner, ^c, see last form'] have been placed on the list of con-

tributorios in the above matter for shares representing L,

and tliat as the holder of such shares I am entitled to a dividend
amounting to 1, out of the surplus assets of the coy.

Tliat tlio reason, &c. Tliat I request, &c. \_as in last form].

I, , of , liqr in the above matter, certify that the above



PROCEDURE UNDER S. 15 OF 1890. 265

claim has been duly admitted by me, and that the sd ia entitled,

&c. l^contmue as in last form.']

The Inspector-General in Companies Liquidation,
Board of Trade,
4, Whitehall Yard, London, S.W.

Exd. .

Number of receivable order ,



In the margin of the form, opposite the jurat, are the two notes mentioned at
foot of last form.



266



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



CHAPTER XXY.

BANKING ACCOUNT AND INVESTMENT.



Companies

Liquidation

Account.



Payment in
by liquidator.



Special bank
account.



Undue deten-
tion of money,



Payments out.



PaymentH to
privato ac-
count for-
bidden.

How Hpcciitl
(u;coiant ki-jit.



Banking Account.

Sect. 11 of 1890. — (1) An account, called the Companies Liquidation Account,
shall be kept by the Board of Trade with the Bank of England, and all moneys
received by the Board of Trade in respect of proceedings under this Act shall be
paid to that account.

(2) Every liquidator of a company which is being wound up by order of the
Court shall, in such manner and at such times as the Board of Trade, with the
concurrence of the Treasury, direct, pay the money received by him to the Com-
panies Liquidation Account at the Bank of England, and the Board of Trade shall
furnish him with a certificate of receipt of the money so paid.

(3) Provided that, if the committee of inspection satisfy the Board of Trade that
for the purpose of carrying on the business of the company or of obtaining advances,
or for any other reason, it is for the advantage of the creditors or contributories
that the liquidator should have an account with any other bank, the Board of
Trade shall, on the application of the committee of inspection, authorize the
liquidator to make his pajonents into and out of such other bank as the committee
may select, and thereupon those payments shall be made in the prescribed manner.

(4) If any such liquidator at any time retains for more than ten days a sum
exceeding fifty pounds, or such other amount as the Board of Trade in any
particiilar case authorize him to retain, then, unless he explains the retention to the
satisfaction of the Board of Trade, he shall pay interest on the amount so retained
in excess at the rate of twenty pounds per centum per annum, and shall be liable to
disallowance of all or such part of his remuneration as to the Board shall seem just,
and to be removed from his ofiice by the Board, and shall be liable to pay any
expenses occasioned by reason of his default.

(5) All payments out of moneys standing to the credit of the Board of Trade in
the Companies Liquidation Account shall be made by the Bank of England in the
prescribed manner.

(G) No liquidator of a company which is being wound up by order of the Court



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