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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such purposes as the Ct shall direct.

Upon the applicon of the liqrs, Order that the liqrs be at liberty Form 252.

until further order to carry on the business of the sd coy, so far as Litg^y to

may be necessary to complete contracts already made by the sd coj", carry on

and to undertake contracts to an extent not exceeding what may be qualified.
necessary to sell the land, buildings, and business of the sd coy as a

t2



276



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



going concern, and to use np tlie stocks of iron and other materials,
whether manufactured or not, in the liqr's possession, hut so that the
price for such further contracts, with the exception of the one specified
under letter G. in the second schedule of the said affi, shall not exceed
1,000Z., and so that any such further contracts shall not take more than
six months to complete. Emmerson^ Murgatroyd ^' Co., Pearson, J.,
19th Nov. 1883. A. 1691.



Form 253.

Liberty to
carry on for
six months.



Upon the applicon of E. M., the off liqr of the above-named coy,
and upon hearing counsel for the applicant, and upon reading the
orders dated resply, &c., two affts, &c., Order that the off liqr he at
liberty to carry on the works and business of the sd coy for the space
of six calendar months from the date of this order, or imtil further
order, and that for that purpose he may be at liberty to pay out of the
moneys from time to time in his hands the salaries, wages, and remune-
rations of the persons employed in the sd works and business, and also
all such rents, royalties, taxes, and other outgoings as may from time
to time become due and payable in respect of such works and premises,
and also for the purpose of carrying on the sd works and business to
make such purchases as may be proper in the ordinary course of busi-
ness, for cash or otherwise, of goods, and to pay the purchase-money
out of such moneys as afsd, and from time to time, for the same
purpose, to make such sales of the effects of the sd coy as may be
necessary or proper in the ordinary course of business ; And order that
the applicant, for the purpose of carrying on the husiness, may retain in
his hands such sum or sums of money as may he necessary, with power
to draw, accept, make, and indorse any necessary bills of exchange or
promissory notes in the name and on behalf of the sd coy, and gene-
rally to execute and do all such other things as may be necessary or
incidental to the carrying on the sd business without the sanction or
intervention of the judge. And order that the applicant do, on or
before the 1st day of Nov., 1886, leave at the chambers of the judge
a report in writing imder the hand of the applicant showing the result
of the carrying on of the coy's business, pursuant to the order up to
the date of such report. [And order that the off liqr be at liberty,
in addition to the account at the Bank of England to be opened by
him pursuant to the order of 16th April, 1886, to open a banking

account at the Chesterfield branch of the Bank, Limtd, and that

tlie account so to be opened be called "The Works Account," and
that the applicant be at liberty to pay into such account all moneys
which may arise from the carrying on of the business of the coy
pursuant to this order, and that the applicant bo at liberty to draw
against the said AVorks Account for all moneys required by him for
carrying on the business. And order that if and whenever the balance



concern.



CARRYING ON THE BUSINESS. 277

of the sd Chesterfield branch shall exceed 1,000^., the excess thof
shall forthwith be transfei'red by the applicant into the account of the
off liqr at the Bank of England.] — Re Oliver Sf Co., Chitty, J., 9th
Aug., 1886.

The words in brackets show the old practice as to a local account, but as to the
new practice, see sect. 11 (3) of 1890 and Chap. XXII. and XXV.



Upon the applicon of B., the off liqr of the sd coy, by summons ^orm 254.

dated, &c., and upon hearing the solors for the applicant, and upon Libei ty to

reading an order dated, &c., and an afft of, &c.. It is ordered that the ^P'^'^ °^ ^°^

six wGcks
sd B., as such off liqr as afsd, be at liberty for the period not exceed- with view to

ing six weeks from the date of this order, to manage and carry on the ^^^'^ ''^^ E'^'^'^i.
business of the above-named coy so far as may be necessary and proper
to execute orders already received, or which during such period of six
weeks may be received, and to undertake contracts to an extent not
exceeding what may be necessary to sell the business of the sd coy as
a going concern, and to use up the stocks of stoves, iron, copper, and
other materials, whether manufactured or not, in the off liqr's posses-
sion, and for that purpose to pay out of the moneys from time to time
in his hands the salaries, wages, and remuneration of the persons
employed in the sd business, and all such rents, taxes, and other
outgoings as may from time to time become due and payable in respect
of the premises now and from time to time to be in the occupation of
the sd coy, and for the purpose of carrying on the sd business and
manufacturing stoves as afsd, to make such purchases as may be proj)er
in the ordinary course of business, for cash, of goods, and to pay the
purchase-money out of such moneys as afsd, and from time to time
for the same purpose to make such sales of the effects of the sd coy
as may be necessary or proper in the ordinary course of business.
\_Leave to open local hanVimj accoim(.'\

And it is ordered that the sd off liqr be at liberty, for the purijoso
of carrying on the business of the coy as afsd and payment of current
expenses and completion of contracts in hand, to borrow immediately
or from time to time such sum or sums as he may require, not exceed-
ing in the whole 300^., the rate of interest on the amount so borrowed
not to exceed 6/. p. c. p. a.

And it is ordered that the off liqr bo at liberty to make such advance
or advances himself.

And it is ordered that the amount so to be borrowed, with the inte-
rest for the same, do constitute a first charge upon all the coy's assets
and undertaking, subject to any charge or incumbrances now existing
thereon. And it is ordered that the sd off liqr be at liberty to execute
a proper instrument or instruments for carrying out any such loan or
loans or otherwise perfecting any such charge as afsd to be settled by



278



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



the judge. [And it is ordered that the sd ofi liqr do forthwith at the
expiration of such six weeks leave at the chambers of the judge his
account of the sd business so to be carried on as afsd.] — Hygienic
Heating, ^c. Co., Chitty, J., 7 Jan., 1886.

The liquidator must now account to the Board of Trade. And see Form 283,
Chap. XXIX., for order for sale and closing business.



Form 255.

Order to carry
on business
and render
monthly
accounts.



Order that the applicants, as such oS liqrs, continue without further
order to carry on the works and business of the sd coy for the space of
six calendar months from the date of the order. And order that for
the purpose of carrying on such business the applicants be at liberty
to pay the salaries of workmen, and the rents and royalties in respect
of the mines resply payable by the coy, and any other necessary
expenses in order to the carrying on the sd business. And order that
the applicants do until further order render their accounts of the sd
business so to be carried on by them as afsd once a month ; the first
account to be rendered on the 27th March, and to embrace the period
from 10th February, 1879, up to the date of this order, as well as
subsequent thereto, and the subsequent accounts up to 27th of each
subsequent month. Thomas W. Booker S^ Co., Try, J., 25th Feb.,
1879. B. 362.



Liberty to
further carry
on business
and execute
power of
attorney to
person abroad



Form 256. Upon the applicon of the off liqr of the above-named coy, and upon
hearing the solors for the applicant, and upon reading, &e. It is
ordered that the sd A., as such off liqr, be at liberty to carry on the
business of the sd coy for the fiu'ther period of nine months from the
date of this order, but he is to report to the judge as to the position
of such business at the end of six months from the date hereof. And
it is ordered that the applicant, as such off liqr, be at liberty to execute

and transmit to W., of , New Brunswick, in the Dominion of

Canada, bank manager, the further power of attorney to do and act
in the sd Dominion with reference to the affairs and business of the
sd coy, which has been approved by the judge and is identified by my
\_chicf clerk^ s] signature to a memdum in the margin thof, and that the
sd off liqr be at liberty to revoke such power of attorney at any time
as he shall think fit or when the judge shall so direct. New Brunswick
Co. of London, Stirling, J., 15th Jan. 1891, B. 42.



Form 257.

Il<;tum of
trading.



In the matter of



Return of cash receipts and payments for day, the day

of , 189—.

(To be signed by the secretary or manager, and forwarded each
evening to the off rocr, witJi voucliorsyor all payments.)

[Then follow, on the debit side, four columns headed (1) received



CARRYING ON THE BUSINESS. ^9

from (names of debtors must be stated) ; (2) casli received for Look
debts due at date of winding-up order; (3) cash received for ready
money takings ; (4) total. On the credit side are five columns headed
(1) paid to ; (2) cash paid for goods necessarily pm-chasod for ready
money ; (3) cash paid for incidental trade expenses (not to include
wages) ; (4) cash paid to oS recr ; (5) total.]

N.B. — Goods must not be sold nor purchases made on credit without
the written permission of the off recr.

N.B. — Cash for goods and trade expenses are to be paid only out of
ready money takings, and not out of book debts due at date of order.

Signature of Secretary or Manager .

Address .



280



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



CHAPTER XXYII.



DELIVERY OF BOOKS AND OTHER PROPERTY.



Liquidator to

take posses-
sion of assets.



Order on

persons to
deliver up.



Liquidator in
jjosition of
receiver.



Sect. 94 of 1862.— The [official'] liquidator or liquidators .... shall take into
his or their custody, or under his or their control, all the property, effects, and
things in action to which the company is or appears to be entitled.

Sect. 98 of 1862. — As soon as may be after making an order for winding-up the
company, the Court .... shall cause the assets of the company to be collected
and applied in discharge of its liabilities.

Sect. 100 of 1862. — The Court may, at any time after making an order for
winding-up a company, require any contributory for the time being settled on the
list of contributories, trustee, receiver, banker, or agent, or officer of the company
to pay, deliver, convey, surrender, or transfer forthwith, or within such time as
the Coui't directs, to or into the hands of the [official] hquidator, any sum or balance,
books, papers, estate, or effects which happen to be in his hands for the time being,
and to which the company is prima facie entitled.

The object of the above section was to give a summary mode of procediire as
against the persons named. Hx parte Haickins, 3 Ch. 787. It gives no jurisdiction
as against outsiders. Illdcy Hotel Co., (1893) 1 Q. B. 248 ; HoUingsicorth'' s case, 3
D. & Sm. 102 ; Cox's case, Ibid., 180. The Act contains no provision like sect. 102
of the Bankruptcy Act, 1883.

Sect. 13 of 1890. — General rules may be made for requii-ing or enabling all or
any of the powers and duties conferred and imposed on the Court by sects. ... 98
[and] 100 of the Companies Act, 1862, to be exercised or performed by the liqui-
dator as an officer of the Court, and subject to the control of the Coiirt.

E. 89 of 1890. — The duties imposed on the Court by sect. 98 of the Companies
Act, 18G2, with regard to the collection of the assets of the company and the appli-
cation of the assets in discharge of the company's liabilities, shall be discharged by
the liquidator as an officer of the Court, subject to the control of the Court.

R. 90 of 1890. — For the piu^pose of the discharge by the hquidator of the duties
imposed by sect. 98 of the Companies Act, 18G2, as varied by sect. 13 of the Com-
panies (Winding-up) Act, 1890, and the last preceding rule, the liquidator shall,
for the purpose of acquiring or retaining possession of the property of the com-
pany, be in the same position as if he were a receiver of the property appointed by
the High Court, and the Court may, on his application, enforce such acquisition or
retention accordingly.

A receiver, if necessary, may be put in possession by writ of possession. R. S. C.
Ord. XLVII. r. 1., and in some cases a wiit of assistance can bo obtained.
Ord. XLVII. r. 2. Wyman v. Knif/ht, 39 C. D. 265.

luterferonce witli possession of receiver is a contempt of Court, and may be
visited with committal or restrained by injunction. Ames v. Birkenhead Locks, 20
Bcav. 332 ; llelmore v. Smith, 35 C. D. 449 ; Ex parte Cochrane, 20 Eq. 282 ; Under-



DELIVERY OF BOOKS AND OTHER PROPERTY. 281

hay V. Read, 20 Q. B. D. 209 ; Tmlc v. Bundle, 10 Beav. 318 ; Scton, C57. Anyone
who claims a right to interfere should apply to Court for leave and thus avoid
contempt. lane v. Cascij, (1891) 3 Ch. 411 ; Seton, G56.

R. 91 of 1890. — The powers conferred on the Court by sect. 100 of the Companies Notice to
Act, 1862, shall be exercised by the liquidator. Any contributory for the time deliver pro-
being on the list of contributorios, trustee, receiver, banker, or agent or officer of a ^ ^'
company which is being wound up under order of the Court shall, on notice from
the liquidator, and within such time as he shall by notice in writing require, pay,
deliver, convey, surrender, or transfer to or into the hands of the liquidator any
sum of money or balance, books, papers, estate, or effects which happen to be in
his hands for the time being, and to which the company is ^;rwrt(^ /«cic entitled.

E. 161 (1) and (2) of 1890.^(1) Where a liquidator is appointed by the Court, the Delivery by
official receiver shall forthwith jjut the liquidator into possession of all property of official
the company of which the official receiver may have custody ; provided that such ^^^ceiver.
liquidator shall have, before the assets are handed over to him by the official re-
ceiver, discharged any balance dae to the official receiver on account of fees, costs,
and charges properly incurred by him, and on account of any advances properly made
by him in respect of the company, together with interest on such advances at the
rate of four pounds per centum per annum ; and the liquidator shall pay all fees,
costs, and charges of the official receiver which may not have been discharged by
the liqiiidator before being put into possession of the property of the company, and
whether incurred before or after he has been put into such possession.

(2) The official receiver shall be deemed to have a lien upon the company's assets
until such balance shall have been paid and the other liabilities shall have been
discharged.

R. 141 of 1890. — Upon a liquidator resigning, or being released or removed from Delivery to
his office, he shall deliver over to the official receiver, or, as the case may be, to the official
new liquidator, all books kept by him, and aU other books, documents, papers, and ^^e^i^er on
accounts in his possession relating to the office of liquidator. The release of a liqui- '

dator shall not take effect unless and until he has delivered over to the official
receiver all the books, papers, documents, and accounts which he is by this rule
required to deliver on his release.

As to the liquidator obtaining possession from the official receiver, see also
Chap. XXI.

The above powers may be exercised by the official receiver while acting as pro-
visional liquidator under the winding-up order. See Chap. XV.

A comparison of the language of sect. 13 of 1890 and R. 91 [supra) with that of Failure to
sect. 100 of 1862, and of Form 53 of 1890 (Form 258, infra) with Form 13 of 1862 clehyer pos-

S6SS10I1

(Form 261, infra), seems to warrant the conclusion that a contributory, trustee, or
other person within the category of persons amenable to sect. 100 of 1862, or R. 91
of 1890, who fails to comply with the liquidator's notice, is in the same position,
although no order of the Court has been made, as he would have been under the
old practice after the Court had made an order against him under sect. 100. The
power conferred on the Coui-t by sect. 100 is now, by sect. 13 and E. 91 of 1890,
" subject to the control of the Court," to be exercised by the liquidator as an officer
of the Court — not by means of an order, as formerly, but by notice.

Under the old practice, disobedience to the order subjected the respondent to an Committal,
attachment [Anglo- French Co-operative Society, 14 C. D. 533), or in some cases to &c.
an order for committal. And it may be that failure to comply with the liquidator's
notice has a similar effect, and that the liquidator can apply to the Court for an
order accordingly. However, looking to the fact that the liquidator is to be re-
garded (R. 90 of 1890) as if he were a receiver appointed by the High Court,
which may on his application enforce such acquisition, it would seem that if he is



283



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



improperly prevented from taking possession he can apply to the Court for an order
enforcing his rights, and if needs be, for committal. See Chap. XXI.

Application for committal of any person to prison for contempt must be made in
open Court. E. 3 of April, 1892.



Form 258.

Notice by
liquidator
requiring
payment of
money or
delivery of
books, &c. to
liquidator.
Form 53 of
1890.



{Title.)

Take notice that I, the undersigned \_name of ltgr~\, have heen ap-
pointed liqr of the above-named coy, and that you, the under-mentd

\_name of person to whom notice is address ecl~\^ are required, within

days after service hereof, to pay to me [o?- deliver, convey, surrender,
or transfer to or into my hands], as liqr of the sd coy, at my office,

situate at [address of liqrs office~\, &c., the sum of £ , being the

amount of debt appearing to be due from you on your account with
the sd coy [or any sum or balance, books, papers, estate or effects], [or
specifically describe the property^ now being in your hands, and to
which the sd coy is entitled [or otherivise, as the case may 5e].

Dated this day of , 189 — .

(Signed) Liqr.

To [fiame of person to ivhom notice is addressed^.
[Address.^

This is the notice referred to in R. 91, supra.



Form 259.

Notice of
motion for
committal, or
for writ of
attachment,
or in alter-
native for
order to
deliver.



(Title.)
Take notice, &c.
At the expiration of two clear days from the date hereof, &c. [see
Form 9], on behalf of A. B., of &c., [the off recr and] liqr of the
above-named coy, That X., of &c., the secretary [or as the case may 5e],
may be ordered to stand committed to the Holloway Prison for his
contempt in making default in delivering [or as the case may be'] to the
sd A. B., as such [off recr and] liqr as afsd [state tvhat], in the hands
of the sd X., as such secretary as afsd, pursuant to a notice in writing,
dated, &c., and given to the sd X. by the sd [off recr and] liqr. Or
in the alternative, that the sd A. B. [off' recr and liqr], may be at liberty
to issue a writ or writs of attachment against the sd X. for his con-
tempt afsd. Or in the further alternative, that the sd X. may be
ordered forthwith, or within such time as the Court shall direct, to
deliver to the applicant [state tvhat]. And that the sd X. may be
ordered to pay to the applicant his costs of and incidental to this
applicon and the order to be made thereon, or that such further or
otlior orders may be made as the circumstances of the case may require.
And further take notice, tliat the applicant intends to read and use in



DELIVEKY OF BOOKS AND OTHER PROPERTY. 263

eupport of the sd applicon the affts and evidence set forth in the sche-
dule hereto, copies of which are served with this notice of motion.
Dated, &c.

The ScnEDHLE before referred to.

(1) Afft of C. D., proving service upon you of notice sought to be
enforced.

(2) Exhibit therein referred to, and being duplicate of such notice.

(3) Aift of A. B., proving yom.' non-complianco with such notice.

See Oswald on Contempt (2ncl ed.), App. B. pp. 246 et seq. ; An. Pr. 1897, p. 850.



Let A. B., of &c., attend, &c., on the hearing of an applicon by X., Form 260.

of &c., the [oil recr and] liqr of the sd coy, that the said A. B., a SaminonH~f
director of the sd coy, may be ordered forthwith to deliver to the delivery,
applicant the \_state ivhat, e.g., register of members of the above-
named coy], in accordance with the notice under the applicant's hand,

served on the sd A. B., and dated the day of , and that the

sd A. B. may be ordered to pay the costs of this applicon and of the
order to be made thereon.

The application should be supported by affidavits that the property is, or is Evidence,
believed to be, in the possession of the respondent, and that it hoio^igB primd facie to
the company, and that notice under R. 91 of 1890 has been duly served, and that
the respondent has refused to comply with or disregarded the notice.

Under the old practice, as appears below, the order for delivery was commonly
made in general terms, and no doubt the notice may be generally framed.

Where the person in possession has a lien or security, such lien or secui-ity will
not be disturbed without his consent. Capital Fire, 24 C. Div. 408.

There can, however, be no lien on the register of members or register of moi-t- Effect of Hen.
gages, or books or documents requii-ed to be kept by the directors under the con-
stitution of the company. Ibid. ; Anglo- Maltese Co., 54 L. J. Ch. 730. Moreover,
where the articles provide that the books shall be kept at a particular place, this
may prevent a lien from being established. Ibid.; and see Part I. p. 374. General
words in a mortgage or in debentures vrill not, it seems, affect the company's books.
Clyne Tin Co., 47 L. T. 439; Engel v. South Metropolitan Co., (1892) 1 Ch. 442.
Query whether this case is consistent with Capital Fire, ubi supra. And as to pro-
ducing documents without prejudice to lien under sect. 115 of 1862, see Ex parte
Faine and Layton, 4 Ch. 215.

As to abandonment of solicitor's lien by taking seciuity, see Taylor, Sfileinan and
Underwood, (1891) 1 Ch. 590; BissillY. Bradford Tramways, W. N. (1893) 44.



In the matter, &c. Form 261.



Upon the applicon of, &:c., and upon reading, &c., It is ordered that Order for
A. B., of, &c., do within four days after service hereof jmy to \or de- payment or
liver, convey, surrender, or transfer to, or into the hands of] E. P. H., sect^Too^ ^^
the off liqr of the sd coy, at the office of the sd E. P. H., situate at, (general).
&c., the sum of 1., being the amount of debt appearing to be due i862? °



284



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



from the sd A. B. on his account with the said coy [or any sum or
balance, books, papers, estates or effects] [or specifically describe the
property\ now being fti the hands of the sd A. B., and to which the
sd coy is^j/'2widyac«e entitled [or otherwise as the case may be'].



Form 262.

Order for
delivery of
"books.



Taxation.



Attachment,



When it is important to get possession of books and dociunents subject to a Uen,
it is not uncommon to obtain an order as follows : —

Upon the applieon of the liqr, and upon hearing the solors for the

aj)plicant and reading the aift of , order that the apphcant do, out

of any assets of the coy in his hands, pay to Messrs. , lately the

solors of the coy, the sum of 337/. in full discharge of the amount due
to them from the coy for costs or otherwise, and in discharge of any
lien they may have upon the deeds, books and documents belonging to
the coy. And order that upon such payment being made the sd

Messrs. do deliver up to the applicant, on oath if required, all

deeds, books, papers and documents in their possession belonging to
the coy. London Fish Market, Kay, J., 7th August, 1884. B. 1089.

Before applying for such an order it may in some cases be deemed desirable to



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 40 of 134)