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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separate meetings of the creditors and contributories of the above-
named bank bo lield for tlio purpose of ascertaining their wishes as to
the mod(; of protecting tlioir several interests, and that such meetings

rosply lio lu^ld at , on , the day of , 1892, and that

iKjticoH convening sucli ni(;etiiigs rosply bo advertised in The Times
uud The ^Standard novvspapors, and iu addition to such advertisements



GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES. 351

a circular letter containing a notice of such meeting be sent to all the
contributories of the above-named bank whose names are on the
London register, and also to all the creditors of the above-named
bank whose names and addresses are known to the appHcant. And it
is ordered that the applicant, as off recr and prov Hqr, do preside at
such meeting, and report the result thof to the Ct. And it is ordered
that the costs of the applicant and of the above-named bank of the sd
applicon and consequent thereon be costs in this matter. Mercantile
Bank of Australia, 089 of 1892, Vaughan Williams, J., 3rd June, 1892.

Upon the applicon of the off llqrs of the above-named coy, and upon Form 394.

hearing the solors for the applicant, It is ordered that the apphcants ^TT 7

do summon a meeting of the shareholders whose names appear on the liquidator to

share register of the sd coy for the purpose of ascertaining the wishes °'^ i™':^'^^"^

of the sd shareholders as to the acceptance or otherwise of certain holders as to

terms of settlement of the action now pending in this honourable Ct settlement of

i- ^ action,

between the X. Coy and the sd coy, entitled " The X. Coy v. The N.

Coy, Limtd. 1889. B. 3G08"^— such terms being the payment, &c.
And it is ordered that the sd meeting be held in London on, &c., or
such subsequent date as the applicants may determine upon. And
that notice to the sd shareholders of such meeting shall be given seven
clear days before the date thof. And that W., of, &c., one of the sd
off liqrs, do act as chairman of the sd meeting, and report the result
thof to Mr. Justice Stirling. And that the votes of the shareholders
at such meeting may be given either personally or by proxy. Notting-
ham and Derby Water Gas Co., Stirling, J., 14th April, 1892.

In the matter, &c., 7th of June, 1893. Form 394a

Memorandum.

Mr. Justice Vaughan Williams has directed a meeting of the share- ^^ ^^ meetin^'^
holders of the above-named corporation to be summoned by the secre-
tary of the sd corporation, pursuant to the above statutes, for the
purpose of ascertaining their wishes as to the jiending petition for the
winding-up of the above-named corporation. And that such meeting

shall be held on, &c., at o'clock in the afternoon, at, &c. The

judge has appointed to act as chairman at such meeting. General

Phosphate Corporation, 0096 of 1893.

Memorandum.

{Full title and reference to record.) Form 394b.

Mr. Justice Vaughan Williams has directed a meeting of share- Xiwther
holders of the above-named coy to be summoned pursuant to the above
statutes, for the purpose of ascertaining the wislies of the shareholders
as to whether the coy shall continue to carry on business, or whether



352



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



Form 395.

Notice con-
Tening meet-
ing directed
hy the Court.



the coy shall be wound up by the Ct under the provisions of the above-
mentd Acts in accordance with the prayer to the peton presented in
this matter.

Notice of the sd meeting- is to be sent by post, at least seven clear
days before the day appointed for the meeting, to each of the share-
holders of the coy, at the addresses of such shareholders resply appear-
ing in the books of the sd coy.

The judge has directed one of the off recrs attached to the Ct to act
as chairman of the sd meeting, and he is to report the result of the sd
meeting to the Ct, and in such report the votes of the shareholders
who repudiate their shares are to be distinguished from those who do
not repudiate, and the amount of the holdings of the several share-
holders voting at the meeting is to be stated.

And the further hearing of the sd peton is adjourned to the 25th
Nov. 1896.

H. J. Hood.
Registrar Cos ( Winding-up).

Thomas Edward Brinsmead and Sons (00200 of 1896), 6tli Nov., 1896.



In the matter, «S:c.
Notice is hereby given, that Mr. Justice —



■ has directed a meeting
of the creditors [or contributories] of the above-named coy to be
summoned pursuant to the above statutes for the purpose of ascertain-
ing their wishes as to [state the object for which meeting called, unless
notice is hy advertisement, in xvhich case say, certain matters relating to
the winding-up of the sd coy], and that such meeting will be held

on day, the day of , 189 — , at o'clock in the

noon, at -



in the county of



at which time and place all the



creditors [or contributories] of the sd coy are requested to attend.
[The sd judge has appointed H. T., of, &c., to act as chairman of such
meeting.]

Dated this day of , 189—. E. P. H., Liqr.

See Rr. 45, 4C.

The above form is on the lines of Form 45 in the schedule to the Rules of
November, 1862, and may be adopted where the Court directs a meeting.



Torm 395a.

Auothor.



[Full title a7id reference to record.')

Notice is hereby given that Mr. Justice Vaughan "Williams (the
judge before whom the peton presented by U. to wind up the above-
named coy is now ponding) has directed a meeting of the shareholders
of the above-named coy to bo sunmioned, pursuant to the above statutes,
for the purpose of ascertaining the wishes of the shareholders as to
whether the coy shall continue to carry on business, or whether the
coy shall be wound up by the Ct under the provisions of the above-



GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES. 353

mentd Acts, in accordance with the prayer of the sd peton, and that
such meeting will be held on Monday, the 23rd day of Nov., 1896, at
half-past two o'clock in the afternoon, at the Inns of Court Hotel,
Lincoln's Inn Fields, London, W.C

The sd judge has directed one of the off recrs attached to the Ct to
act as chairman of the sd meeting.

Dated 13th day of Nov., 1896.

H. J. Hood,

Registrar Cos Winding-up, Bankruptcy Buildings,

Carey Street, London, W.C.

Note. — By the direction of the judge the attention of shareholders
who repudiate their shares is called to the fact that it is jDossible that
it may be held that by attending the meeting, or by attending the
meeting and voting thereat, such shareholders have elected to accept
the position of shareholders of the coy, and therefore forfeited their
right to repudiate their shares. Shareholders may attend and vote at
the sd meeting either personally or by proxy. A form of proxy accom-
panies this notice. The judge has expressed his desire that no circulars
should be sent to shareholders, TJwmas Edward Brinsmcad and Sons
(00200 of 1896).

This is the notice given of the meeting referred to in Form 394b. The meeting
resolved that it was desirable to go on, but the learned judge made a winding-uii
order, and the Court of Appeal affirmed the decision. There were a number of
shareholders who had repudiated their shares on the ground of misrepresentation,
and had taken proceedings to enforce such repudiation. Having thus definitively
elected to avoid their contracts, they could have voted without danger, for " if a
man once determines his election it shall be determined for ever" (Com. Dig. Elec-
tions (c. 2)), so held by Court of Appeal in Foiilkes v. Quartz Hill Co., in 1884 (Em.
Dig. 1884, p. 102), and see further Part I. of this work, p. 67. To vote at a meet-
ing of the company after knowledge of a right to repudiate and before vrrit issued
operates as an affirmance of the contract. S/iarplci/ v. Louth, ij-c. Co., 2 C. D. 663.



( Title.) Form 396.



Take notice, that a meeting of creditors [_or contributories] in the Notice of

above matter will be held at on the day of , 189 — , at nieotmg

, 1 T . ,, -^ (general

• o clock m the noon. form).

Agenda. ^o^m 26 of

. . -, 1890.

\^Here insert imrpose for lohich meeting called.]

Dated this day of , 189 — .

(Signed) , [" Liqr " or " Off recr."]

Forms of general and special proxies are inclosed herewith. Proxies

to be used at the meeting must be lodged not later than o'clock

on the day of , 189 — .

For general and special proxy, sec Forms 158, 159, and Chap. XVII. And see
note to Form 402, also Form 402a.

F. A A



354



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



Form 397.

Notice of
general meet-
ing of

creditors (on
requisition).



{Title.)

Notice is hereby given that in pursuance of a requisition by creditors
rejDi'esenting one-tenth in value of the unsecured creditors of the coy,
a meeting of the creditors in the above matters will be held at No. 33,
Carey Street, Lincoln's Inn, W.C, on Thursday, the 9th day of June,
1892, at 12 o'clock noon.

Agekda.

(a) To consider the propriety of accepting an offer of 10s. in the £
upon the respective debts of the creditors, together with payment of all
costs, charges, and expenses incident to the liquidation.

(b) To fill a vacancy in the office of a member of the committee of
inspection.

Dated the 27th day of May, 1892.

C. J. S., Off Eecr and Liqr.

Forms of general and special proxy are inclosed herein. Proxies to
be used at the meeting must be lodged not later than 12 o'clock on
the 8th June, 1892. Broad's Patent Night Light Co.

See sect. 23 (2) of 1890, svpra. And see note to Form 402.



Form 398.

Authority to
deputy to act
as chairman
of meeting
and use
proxies,
rorm 25 of
1890.



-, the off recr of



{Title.)
-, do hereby nominate Mr.



-,of



to be chairman of the first meeting of creditors [or contributories] in

the above matter, appointed to be held at , on the day of

, 189 — , and I depute him \Jiere insert, "being a person in my



employment or under my official control, or being an officer of the
Board of Trade "] to attend such meeting and use, on my behalf, any
proxy or proxies held by me in this matter.

Dated this day of , 189 — .

Off Eecr.



Form 399.

Affidavit of
postage of
notices of
meeting.
Form 27 of
1890.



{Title.)
-, a [state the description of the deponent], make oath and say



as follows : —

1 . That I did on the day of



189 — , send to each creditor



mentd in the coy's statement of affairs [or to each contributory mentd
in the register of members of the coy] a notice of the time and the
place of the [insert here "general" or "adjourned general," or "first"
meeting of creditors or contributories, as the case may he~\ in the form
herounto annexed marked "A."

2. Tliat the notices for creditors were addressed to the sd creditors
rcsply, according to tlicir respective names and addresses appearing in
the statement of uilaii's of the coy.



I
I



GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES. 355

3. That the notices for contributories were addressed to the con-
tributories resply according to their respective names and addresses
appearing in the register of the coy.

4. That I sent the sd notices by putting the same prepaid into the

post office at , before the hour of o'clock in the noon on

the sd day.

Sworn, &c.



{Title.) Form 400.



I, , a clerk in the office of the off recr, hereby certify : — Certificate of

' 'J J postage of

1. That I did on the day of , 189—, send to each creditor "o^i^^**

mentd in the statement of affairs, «?• each contributory mentd in the Form 28 of
register of members of the coy \_or as the case may ie], a notice of the 1890.
time and the place of the first meeting \or "a general meeting," or
"adjourned general meeting," as the case may he~\ in the form here-
unto annexed marked "A."

Paragraj)hs 2, 3, and 4, as in [last form'].

(Signatiu'e) .

Dated .

A certificate by the official receiver or other officer of the Court, or by the clerk of
any such person, or an affidavit by the liquidator, or his solicitor, or the clerk of
either of such persons, that the notice of any meeting has been duly posted, shall be
sufficient evidence of such notice having been duly sent to the person to whom the
same was addressed.



{Title.) Form 401.



Before , at , on the day of , 189 — , at Memorandum

,11 of adiourn-

O clock. ment of first



Memdm. — The first [or as the case may he~\ meeting of [insert or other

of



"creditors" or "contributories," as the case may be~\ in the above p^^jj^^-fg
matter was held at the time and place above-mentd ; but it appearing 1890.
that [here state reason for adjournment] the meeting was adjourned

until the day of , 189 — , at o'clock in the noon, then

to be held at the same place.

, Chairman.



{Title.) Form 402.



I, W. S., of , in the county of , being a creditor [or con- Proxy at



tributory] of the above-named coy, hereby appoint , of , as

my proxy to vote for me, and on my behalf, at the meeting of the

A a2



eneral meet-



356



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



creditors [or contributories] of the sd coy, summoned by direction of

Mr. Justice , to be held on the day of , and at any

adjournment thereof.

As witness my hand this day of , 189 — .



W. S.

Signed by the sd W. S. j
in the presence of )

J. M., of, &c.

Rule 25 of April, 1892, recognizes the right to vote by proxy. See, as to proxies,
Er. 123 — 125 of 1890 {supra, p. 349). It is to be observed that the rules set out in
the first schedule to the Act of 1890 only apply to the first meetings of creditors and
contributories, and accordingly there appears to be nothing to prevent the appoint-
ment of any person as special or general proxy at subsequent meetings.

The name of the official receiver ought not to be inserted as proxy.



Form 402a.

Another,
approved by
the Court.



{Full title and reference to record.)

I, the undersigned, a shareholder of the above-named coy, hby
appoint [insert name, address, and description of proxy proposed. Such

proxy must be a shareholder of the coy'], of , in the county of ,

as my proxy, to act for me at the meeting of shareholders to be held
at the Inns of Court Hotel, Lincoln's Inn Fields, London, W.C, on
Monday, the 23rd day of Nov., 1896, at half -past two o'clock in the
afternoon, for the purpose of ascertaining the wishes of the share-
holders as to whether the coy shall continue to carry on business,
or whether the coy shall be wound up by the Ct under the provisions
of the above-mentd Acts, and at such meeting, and any adjournment
thof, to vote for me and in my name [insert here either " in favour of
carrying on the business of the coy,^'' or, " in favour of a ivindi^ig-up by the
Ct,'''' or, " in favour either of continuing the sd business or of a tvinding-
up, as my proxy may approve"].

Dated this day of Nov., 1896.

Signature (Stamp.)

Address

Description



Holder of [itisert hoiv many] shares in the above coy.

Note. — This proxy must be lodged at the office of the off recr,
33, Carey Street, Lincoln's Inn, London, not later than the day before
the mooting at which it is to be used.

Any alteration made in the form of this proxy must be initialled.

Note. — The above i.s the form of proxy paper issued by direction of the Court in
Thomas L'dtvard lirinsmcad i^- Co. See Forms 394b and 395a, supra. The portion in
itulics took the form of marginal notes in the original form.



GENEEAL MEETINGS OF CREDITORS AND CONTRIBUTORIES.



( Title.



357
Form 403.



of



Meeting of creditors \_or contributories] held at , this day List of

crcditorH or
coutributorics
assembled, to



-, 18-.



Number.



Names of Creditors [or Contributories] present or
rejjresentcd.



Total number of creditors [or contributories]
present or represented.



Amount of Proof [or ^e used at
Number of Shares]. every meet-



Form 31 of
1890.



{Title.)

I, A. B., the liqr of the above-named coy, chairman of a meeting of
the creditors [or contributories] of the above-named coy, summoned by

advertisement [or notice], dated the day of , and held on the

day of , at , in the county of , do hby report to the

Ct the result of such meeting as follows : —

The sd meeting was attended, either personally or by proxy, by



Form 404.

Report of
result of
meeting of
creditors or
contribu-
tories.
Form 32 of
1890.



creditors, whose proofs of debt against the sd coy were admitted for

voting purposes, amounting in the whole to the value of 1, [or by

contributories, holding in the whole shares in the sd coy,

and entitled resply by the regulations of the coy to the number of
votes hnftr mentioned].

The question submitted to the sd meeting was, whether the creditors
[or contributories] of the sd coy wished that [here state proposal sub-
mitted to the meeting~\.

The sd meeting was of opinion that the sd proposal should [or
should not] be adopted [or the result of the voting upon such question
was as follows :]

The ujider-mentd creditors [or contributories] voted in favour of the
sd proposal being adopted : —



Name of Creditor
\_or Contributory ] .



Address.



Value of Debt
[or Number of Shares].



Number of Votes conferred
on each Contributory by the
Regulations of the Company.



358



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



The under-mentd creditors [or contributories] voted against the sd
proposal being adopted : —



Name of Creditor
[or Contributory].



Address.



Value of Debt
[or Number of Shares].



Number of Votes conferred
on each Contributoiy by the
RegTilations of the Company.



Dated this



day of



189—.



(Signed) H. T.,

Chairman.



359



CHAPTER XXXVII.



CREDITORS.



What Debts provable.

Sect. 158 of 1862. — lu the event of any company being -wound up under this Act, Solvent
all debts payable on a contingency, and all claims against the company, present or companies,
future, certain or contingent, ascertained or sounding only in damages, shall be
admissible to proof against the company ; a just estimate being made, so far as is
possible, of the value of all such debts or claims as may be subject to any contin-
gency or sound only in damages, or for some other reason do not bear a certain
value.

The right of proof conferred by the above section is now limited to the case of
solvent companies ; for, as regards insolvent companies, sect. 10 of the Judicature
Act, 1875, declares vrhat debts and liabilities are to be provable.

That section is as follows : —

Jud. Act, 1875, s. 10. — In the administration by the Court of the assets of any Insolvent
person who may die after the commencement of this Act, and whose estate may companies,
prove to be insufficient for the payment in full of his debts and liabilities, and in
the winding-up of any company under the Companies Acts, 1S62 and 1867, whose assets
may prove to be insufficient for the payment of its debts and liabilities, and the costs of
winding-up, the same rules shall prevail and he observed as to the respective rights of
secured and unsecured creditors, and as to debts and liabilities provable, and as to the
valuation of annuities, and future and contingent liabilities respectively, as may be in
force for the time being under the law of bankruptcy with respect to the estates Application
of persons adjudged bankrupt, and all persons who in any such case would be en- of bank-
titled to prove for and receive dividends out of the estate of any such deceased ruptcy law.
person, or out of the assets of any such company, may come in under the decree or
order for the administration of such estate, or under the winding-iip of such com-
pany, and make such claims against the same as they may respectively be entitled
to by virtue of this Act.

The words in the above section " as to the debts and liabiHties provable," mean
" as to what debts and liabilities can be proved, and the manner in which they are
to be proved." Xaylor v. Mersey Steel Co., 9 Q. B. Div. 648 ; 9 Ap. Cas. 434.

The debts and liabilities provable La bankruptcy are specified in sect. 37 of BANKEurTCY
the Banki'uptcy Act, 1883, which is as follows : — Rules.

Bankruptcy Act, 1883, s. 37.— (1) Demands in the nature of unUquidated damages (Juliquidated
arising otherwise than by reason of a contract, promise, or breach of trust, shall not damages,
be provable m bankruptcy.

(2) A person having notice of any act of bankruptcy, available against the



3G0



WINDING-UP 13Y THE COURT. [ClIAP. XXXVII.



Debt after
notice of act
of bank-
ruptcy.

Other debts,
(Sec. provable.

Estimate as
to contingent
debts, &c.

Appeal.



Assessment
of value.



Meaning of
"liability."



debtor, shall not jirove under the order for any debt or liability contracted by the
debtor subsequently to the date of his so having notice.

(3) Save as aforesaid, all debts and liabilities, present or future, certain or con-
tingent, to which the debtor is subject at the date of the receiving order, or to
which he may become subject before his discharge by reason of any obligation
incurred before the date of the receiving order, shall be deemed to be debts provable
in bankruptcy.

(4) An estimate shall be made by the trustee of the value of any debt or liability,
provable as aforesaid, which by reason of its being subject to any contingency or
contingencies, or for any other reason, does not bear a certain value.

(5) Any person aggrieved by any estimate made by the trustee as aforesaid may
appeal to the Court.

(6) If in the opinion of the Court the value of the debt or liability is incapable
of being fairly estimated, the Court may make an order to that effect, and there-
upon the debt or liability shall, for the purposes of this Act, be deemed to be a debt
not provable in bankruptcy.

(7) If, in the opinion of the Court, the value of the debt or liability is capable of
being fairly estimated, the Court may direct the value to be assessed before the
Court itself without the intervention of a jury, and may give all necessary directions
for this purpose, and the amount of the value when assessed shall be deemed to be
a debt provable in bankruptcy.

(8) "Liabihty" shall, for the purposes of this Act, include any compensation
for work or labour done, any obligation or possibility of an obligation to pay money
or money's worth on the breach of any express or implied covenant, contract,
agreement, or undertaking, whether the breach does or does not occur, or is or is
not hkely to occur or capable of occurring before the discharge of the. debtor ; and
generally it shall include any express or implied engagement, agreement, or under-
taking, to pay, or capable of resulting in the payment of money or money's worth,
whether the payment is as respects amount fixed or unliquidated ; as respects time,
present or future, certain, or dependent on any one contingency, or on two or more
contingencies ; as to mode of valuation, capable of being ascertained by fixed rules,
or as matter of opinion.



Proofs.

How Made.

Er. 96—109 of 1890 are as follows :—
96. Every creditor shall prove his debt.

Af&davit 97. A debt may be proved by delivering or sending through the post in a prepaid

of proof. letter to the official receiver, or, if a lii^uidator has been appointed, to the liquidator,

an affidavit verifying the debt.

98. The affidavit may be made by the creditor himself, or by some person autho-
rized by or on behalf of the ci'editor. If made by a person so authorized, it shall
state his authority and means of knowledge.

Vouchers. 99. The affidavit shall contain or refer to a statement of account showing the

particulars of the debt, and shall specify the vouchers, if any, by which the same
can be substantiated. The official receiver or liquidator may at any time caU for
the production of the vouchers.

Security. 100. The affidavit shall state whether the creditor is or is not a secured creditor.

Cost. 101. A creditor shall bear the cost of proving his debt, unless the Court other-

wise orders.

Discount. 102. A creditor proving liia debt sliall deduct therefrom all trade discounts, but



CREDITOKS. 361

ho shall uot Lc compelled to deduct any discount, not exceeding five per centum on
the not amount of his claim, which he may have agreed to allow for payment in
cash.

103. When any rent or other payment falls due at stated periods, and the order Periodical
to wind up is made at any time other than one of those periods, the person entitled Payments,



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 49 of 134)