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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dividends in respect thereof. [Document above referred to.]

[Schedule with columns headed Date, Name of persons appearing thereon, Amount.]

{Title.) Form 416.



I hereby certify that the following list is a correct statement of all List of proofs
proofs tendered to me in the above matter. filed'iSde" ^^

Dated this day of , 189 — . rule 116.

Off Eecr and Liqr.

[Here follow two columns, headed respectively " Name of creditor" and " Proofs
tendered." The second column is sub-divided into six cash columns, headed
respectively "Total amount," "Wholly admitted, amount," "Partly admitted,
amount," "Admitted preferentially," "Partly rejected, amount," "Wholly
rejected, amount." These amounts are "carried forward," if necessary, on con-
tinuation sheets.]

As to the above form, see R.. 116 of 1890, supra, p. 362.



384



WINDING-UP I!Y THE COUirf. [ClIAP. XXXVII.



Form 417.

Liquidator's
monthly list
of proofs.



{Title.)

I hby certify that the following list is a correct statement of all proofs
received by me in the above matter during the month preceding the
date hereof. Dated, &c., A. B., Liqr of the above-named Coy.

\_Here follow the columns as set out in last Form.^

As to this form, see R. 117 of 1890, supra, p. 362; and see E. 118, as to filing
proof in case of appeal.



Form 418. I^et, &c., upon the applicon of A. B., of , that the licp of the

above-named coy may be ordered forthwith to admit the applicant as

a creditor of the sd coy for 1., and that the sd liqr may be ordered

to j)ay the costs of this applicon [out of the assets of the sd coy].

Under R. 120 of 1890, a liquidator is within twenty-eight days to admit or reject
a proof, " or require further evidence in support of it." In the result a liquidator
who feels a difficulty about admitting a proof might unduly delay matters, and in
any such case it may be expedient, as under the old practice, to take out a s'um.-
mons to admit or to settle, as in the form following, some point in dispute.



Summons for
order that
liquidator
may admit
proof.



Form 419. I^^t, &c., that it may be declared that the applicant is entitled to set

;:; ;: — off the amount provable by him in respect of the damage sustained by

Summons for ^ ^ p . tt t

reason of the coy s breach of a certain contract, dated, &c., and made,

&c., or a competent part thof, against the sum of 1, due from him

to the sd coy, and to prove for the balance, and that the costs, &c.



Mimmons
allowance of
set- off.



Form 420.

Order to
admit claim.



Upon the applicon of C, the liqr of the above-named coy, by
summons, dated 13th June, 1892, and uj^on hearing the solor of the
applicant, and for, «S:c., and upon reading the supervision order of
18th July, 1891, an afft, &c., it is ordered that the applicant be at
liberty to admit the claim of F., particulars of which claim are set forth
in the sd afft by the applicant, filed 1-lth June, 1892, at the sum of
4,184/. Glendon Iron Co.^ 17th June, 1892.



Form 420a. Upon the applicon of Messrs. "W. 11. Smith & Son, &c.. Order that
the claim of the sd W. II. Smith & Son be allowed at the sum of 250/.,
together witli 10/. 10s. Of/., the ascertained costs of proving the same.
South Wales Atlantic, cj-c. Co., M. E., 24th Jan. 1878. B. 171.



Another.



Form 421. The applicon of Iho Baulc of L., Sec., ndjournod into Ot and now

Another. coming on, Ike, Oi-ilcr lliat the ap[)lica]its ])0 allowed as creditors of the

sd coy for the sd sum of 2,109/. \\s. lul. ; And order that iho costs of

the Bank of L. of this applicon and of the adjournment thof into Ct, be



CREDITORS. 385

allowed out of the assets of the sd coy, such, costs to bo taxed, &c. in
case the parties differ. General South American Co., Malius, V.-C,
24th Nov. 1877. A. 222. See 7 Ch. D. G37.

For order to admit claim for future and contingent liabilities under lease, see
Tanther Lead Co., supra, Form 392b.

Upon the applicon of K., the [off] liqr, &e., and it appearing- that the Form 422.
assets of the coy are sufficient for the payment of his debts in full, and g^^.^fj
it also appearing that the sd W. is indebted to the coy in the sum. of allowed.
175/., and that he has been admitted a creditor of the coy for 164/. 12s.,
By consent order that the said W. do on or before 2nd July, 1883, or
thereafter within four days after the service of this order, pay to the
sd K. the sum of 10/. 8s., being the difference between the sd sum of
175/. and 164/. 12s. Haven Gold Co., Bacon, V.-C, 28th May, 1883.
A. 686.

As to set-off, see supra, p. 375.

Upon, &c., Order that the following issue be tried before in the Form 423.

winding-up of the coy by oral evidence, viz., whether the L. B. Coy Order for
are or are not entitled to retain and appropriate T.'s promissory notes, issue to be
&c. Catterall Paper Co., Hall, V.-C, 7th July, 1881. A. 2032. judge!'''^*'''^

Upon the applicon of H., the trustee in [liquidation] of B., an Form 424.
alleged creditor of coy, &c.. Order that the following question arising „ .
in this matter be referred to the official referee in rotation, to inquire referee to
and report, that is to say, the claim made by the sd H., as trustee in i"epoi't on
[liquidation] of sd B., against the coy, and either party is to be at
liberty to apply as he may be advised. City of London Printing Co.,
Kay, J., 7th March, 1883. A. 841.

Upon the applicon of C, the liqr of the Fish Exchange, Blackfriars, Form 425.
Limtd, and upon hearing the solor for the applicant, and upon reading, ciaim dis-
&c., order that the claim of the sd H. against the coy be disallowed, allowed.
Fish Exchange, Lintd, Chitty, J., 12 Dec. 1883. A. 1820.

Upon, (S:c., Order that the claim of the sd syndicate against the above Form 426.
coy, be and the same is hby disallowed ; And costs to be taxed, &c., Xnother!
and pd by the syndicate to the applicant. Cheramhodi Gold Co.,
Chitty, J., 22nd May, 1884. A. 802.

Let A. B., of, i&c, the liqr [or the off recr and Hqr] of the above- Form 427.
named coy, attend, &c. on the hearing of an applicon of C, of, &c., Summons to
a creditor of the above-named coy, for an order that the decision of reverse or

p. c c



386



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



vary liqui-
dator's de-
cision on
proof.



the said A. B. as sueli liqr as afsd [or as the cose may he~\, rejecting
the proof of the sd C. in these matters, may be reversed, and that the
sd proof may be allowed in full, [and, if necessary, that the time
for making this appeal be extended] ; and that the sd off recr and liqr
may be ordered to pay the costs of and incident to this applicon [out
of the assets of the sd coy].

The Conrt may, on the application of the creditor or contributory, reverse or vary
the decision of a liquidator in respect of a proof ; but, subject to the Court's power
to extend time, no application to reverse or vary a decision rejecting a proof shall
be entertained unless notice is given before the expu-ation of twenty-one days from
the rejection. See R. Ill of 1890, supra, p. 361.

Where a creditor appeals from the rejection of a proof after the latest date up
to which proofs may be lodged under the notice of intention to declare a dividend
(Form 436), notice of appeal shall (subject to extension of the time in special
cases) be given within seven days " from the date of the notice of the decision
against which the appeal is made." See R. 122 (2) of 1890.

That is to say, seven days from the date of the notice of rejection of proof.
Form 414, supra.

An application by way of an appeal from a decision of the official receiver acting
as liquidator must be made in chambers. National Wholemeal Bread and Biscuit
Co., Ex parte Baines (No. 1), (1892) 2 Ch. 457.

The official receiver or liquidator must, within three days after notice from a
creditor of appeal from rejection of a proof, file such proof, with a memorandum
thereon of his disallowance. See R. 118 of 1890.

In practice, the duplicate of the notice of rejection (Form 414) is filed with
the proof.



Form 428. Upon motion on the 21st May and this day made unto this Ct by

Order re- counsel for B. of , a creditor of the above-named coy, and upon

versing rejec- hearing counsel for the applicant and for C. J. S., the off recr and
liqr of the above-named coy, and upon reading the two several affts



Form 428 a.



of T. B. filed resply on the



day of



-, and



day of



and the exhibits therein — T. B. 1 , and T. B. 2 — this Ct doth order that the
decision of the assistant off recr of the above-named coy, rejecting the
proof of the sd T. B., whereby he claimed the sum of 23^. 10*. 9^?.
against the sd coy, be reversed, and that the sd claim be allowed and
l)d to the sd T. B. in full; and it is ordered that the costs of the appli-
cant, T. B., of and incident to this applicon, except that no costs of
proof be allowed, be taxed and pd by the sd C. J. S., the off recr and
liqr, to the sd T. B. out of the assets of the above-named coy. National
Wholemeal Co., (1892) 2 Ch. 457, Vaughan Williams, J., 28 May, 1892.

E. 121 of 1890. — The official receiver shall in no case be personally liable for
costs in relation to an appeal from his decision rejecting any proof wholly or
in part.

{Fnll title. J. S.'s claim.)
Tlio applicon of J. fc>., a creditor. Order that the rejection by the sd



rejection. C. J. 8., as such off tocr and liqr, of the proof of the applicant for



CREDITORS. 387

2,729/. 1)0 varied, and that the sd proof be admitted for the sum of
1,500/. And that the dividend of 3s. 4d. in the £ already declared in
the liquidation of the above-named coy bo forthwith pd by the sd C. J. S.,
as such off recr and liqr of the above-named coy, to the sd applicant
J. S. And it is ordered that the costs of the sd C. J. S., the off recr,
&c., of this applicon be costs in the winding-up. Ki-asnajiolshy Res-
taurant, 8fc. Co., 0041 of 1892, Vaughan Williams, J., 21 June, 1893.

Tlio applicon of F., which, upon hearing the solors for the applicant Form 429.
and for the respts, the off recr and liqr of the sd coy, in Chambers, Leayg to
was adjourned to be heard in Ct, coming on this day to be heard prove for
accordingly, and upon hearing counsel for the applicant and for the ^^^^ ailottin"-
respt, and upon reading an afft, &c.. It is ordered that the applicant F. fully paid-up
be at liberty to prove in the winding-up of the sd coy for damages by
reason of the failure of the sd coy to allot to him fully pd up shares
in respect of the one-fifth of the contract price agreed to be taken in such
fully paid up shares, the measure of damages being, as to the shares
in respect of the one-fifth of the amount of the first two certificates of
the coy's surveyor, W., the value of the shares at the commencement
of the winding-up of the sd coy, and as to the shares in respect of the
rest of the contract price, the value of the shares at the date of the
final certificate of the sd "W., dated the 24th June, 1891; and it is
ordered that the applicant F. do pay to the respt S. his costs occa-
sioned by the adjournment of this applicon into Ct, such costs to be
taxed by tiie taxing master, and the sd S. is to be at liberty to retain
out of the assets of the sd coy his costs of this applicon. London and
Suhurhan Co-operative Stores, (1891) L. 17, Chitty, J., 6th April, 1892.

EXPTTKGING AND EeDUCING PrOOFS.

Let, &c., on the applicon of A. B., of &.C., the liqr [or a creditor or Form 430.
contributory] of the above-named coy, for an order that, notwithstand- Summons to
ing the proof of X. Y., of &.G., a creditor of the sd coy, has been admitted expunge or

for the full amount of /. [or as the case may ie], such proof may

be expunged, or, in the alternative, that the amount of the same may
be reduced.

A proof may be expunged on the application of the liquidator, or of a creditor or
contributory. See Rr. 112 and 113 of 1890, supra.

According to the rule in bankruptcy, it seems immaterial that the proof has been
on the file for a year or more. See Vaughan Williams on Banki-uptcy, 5th ed. 344.

As to the necessity for serving the liquidator when the application is made by a
creditor or contributory, see Ex parte Mcrriman, 25 C. Div. 144.

Let, &c., on the part of A., of , that, notwithstanding the Form 43L

time limited for making claims has expired, the applicant may be at p„TnTnnnH for"

cc2



388



leave to pro
after time
expired.



WINDING-UP BY THE COURT. [ClIAP. X.XXVII.

ve libert}^ to make and establish, his claim against the sd coy for the sum
of 1.

See sect. 107 of 1862, supra, as to the power of the Court to limit a time for
making proofs. But by tlie Act the assets are impressed with a trust in favour of
all the creditors, and accordingly the Court will make no difficulty in admitting
proofs after the expiration of the time fixed. " No mischief can be done to other
creditors by reason of the delay or laches of any creditor, since, if he delays beyond
the proper time, he must take his chance of what assets he can find for payment of
his debt, not disturbing any former dividend." Per James, L. J., General Rolling
Stock Co., 7 Ch. 649. A sectired creditor very commonly waits to come in until he
has realised his security, and then to prove for the balance. Kit Sill, ^-c. Co., 16
C. D. 590 ; In re Metcalfe, 13 C. Div. 236. He cannot complain that no reserve
was made for his possible dividend. JSx parte Good, 14 C. D. 82.



Form 432. Ux^on the applicon of D. of, &c., a creditor of the above-named coy
Order for ^J summons dated, &c., and upon hearing the solors for the applicant,
leave to claim for the liqr of the above-named coy, and for C, resply contributories
expired attending proceedings, and upon reading the order, dated the 13th
June, 1891, an afft of the applicant filed, &c., and the exhibits therein
referred to, and the afft of filed, &c., It is ordered that, notwith-
standing the time limited for making claims has expired, the applicant
be at liberty to come in and establish his claim as a creditor of the

above-named coy in respect of the sum of £ , and interest. And

it is ordered that the applicant do pay to the liqr of the above-named
coy his costs of, and incident to, this applicon, such costs to be taxed
by the taxing master in case the parties differ. Russell, Cordner 8f Co.,
North, J., 23rd Feb. 1892.

By R. 122 (2) of 1890 {supra), where no notice of appeal has been given within
the time therein specified, the liquidator is to exclude rejected proofs from partici-
pation in the dividend.



Another.



Form 433. Upon the applicon of W., &c., Order that, notwithstanding the time
limited for making claims has expired, the applicants be admitted as
creditors of the above-named coy for the sum of 369^. 10*. lOr/., and
order that the off liqr of the sd coy do pay to the sd W. the dividends
of Is. 6f/. and Qxl. in the pound iqion the sd sum of 369^. 10s. \Qd.,
being the amount of dividends already x^d to the other creditors of the
above-named coy pursuant to the sd orders, dated resply 28th July,
1883, and 3rd April, 1884. Re 'Thames and Channel Co., Chitty, J.,
17th July, 1884. B. 979.



Form 434.



Another.



Upon the applicon of "W., that notwithstanding the chief clerk's
certificate as to debts and claims in these matters has been made, the
debt or claim of the sd W. against the coy be now allowed at the sum



\



CREDITOrvS. 389

of 86/. 13s. 4 J., as a debt not carrying interest. And upon hearing
the solors for the applicant and for N., the off liqr of coy, and upon
reading, &c., Order that, notwithstanding the sd chief clerk's certificate,
the applicant be allowed to stand as a creditor of the sd coy for the
sum of 80/., a debt owing to him by the sd coy not carrying interest;
but in any further distribution of the assets of the sd coy among the
creditors, and before any payment is to be made to the applicant in
respect of the debt allowed as afsd, regard is to be had to the fact that
the applicant is now subject to liability as a contributory of the sd coy.
And order that the applicant pay to the sd N. as such off liqr the sum
of 21. 2s. for his costs of the applicon. Monte Loreto Gold, 8fc. Co.,
Hall, Y.-C, 8th May, 1877. B. 1049. And see Kit mil, Sfc. Co.,
Ex parte Williams, 16 Ch. D. 590.

Dividends.

As to declaration of dividend, see sects. 12 and 23 of 1890, supra, Chap. XXI. ;
and E. 122 of 1890, sj(pya, p. 363.

For notice of dividend, see Forms 437, 439, infra.

There may be cases in which it may be expedient to apply to the Court for
direction as to the payment of a dividend, e.rj., where there is litigation pending.
See Form 444, infra.

This is one of the forms issued by the Board of Trade to official receivers to be Form 435.
used by them when acting as liquidators. It must also be used by other liquidators. ri~~. "
It is in practice headed, "Notice for London Gazette. Companies (Winding-up) intended
Act, 1890. (4) Notice of Intended Dividend." Then follow the seven columns set dividend (for
out in part 4 of Form 15, supra, p. 31. The form must be signed by the liquidator, gazetting).
and dated, and sent to the Board of Trade, 4, Whitehall Yard, London, S.W. It ^3°^^/^,^^^'
must be sent "not more than two months before declaring a dividend," and in ^ygj^
column 5 the " latest date up to which proofs must be lodged " must be " not less
than fourteen days from the date of such notice." R. 122 (1) of 1890.

The Gazette notice is inserted by the Board of Trade, and when it has appeared a
memorandum of gazetting must be filed by the liquidator. See pp. 32, 33, supra,
and Form 15. At the same time the notice below (Form 436) must be given to
' ' such of the creditors mentioned in the statement of aif airs as have not proved
their debts," and this must also state the last day for proving, which must be not
less than fourteen days from the date of the notice. E. 122 (1).

E. 122 (4) of 1890. — If it becomes necessary, in the opinion of the liquidator and
the committee of inspection, to postpone the declaration of the dividend beyond the
limit of two months, the liquidator shall give a fresh notice of his intention to
declare a dividend to the Board of Trade in order that the same may be gazetted ;
but it shall not be necessary for the liquidator to give a fresh notice to such of the
creditors mentioned in the statement of affairs as have not proved their debts. In
all other respects the same procedure shall follow the fresh notice as would have
followed the original notice.

A [iyisert here "first," or "second," or "final," or as the case may Porm 436.



he'] dividend is intended to bo declared in the above matter. You are Notice to



300



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



creditors of
intention to
declare
dividend.
Form G9 of
1890.



mentioned in the statement of affairs, but you have not yet proved
your debt.

If you do not prove your debt by the day of , 189 — , you

will be excluded from this dividend.

Dated this day of , 189—.



G. H.



To X. Y.



liqr,
\_Address.']



As to this notice, see notes to last form.

As to giving notice of appeal after the last day named in the above notice, see
E. 122 (2) of 1890. This clause also provides that "Where no notice of appeal has
been given within the time specified in this rule, the liquidator shall exclude all
proofs which have been rejected from participation in the dividend."



Form 437.

Notice of
di\'idend (for
gazetting).
Form 86'~(o\
13th Feb.
1891.



This is another of the forms wliich the Board of Trade issue to ofiicial receivers
to be used by them when also acting as liquidators. It must also be used by other
liquidators. In practice it is headed "Notice for London Gazette. Companies
(Winding-up) Act, 1890. (5) Notice of Dividend." Then follow eight columns,
as in jjart 5 of Form 15, supra. It must be signed and addressed like Form 435.
The advertisement is inserted by the Board of Trade, and the liquidator must file a
memorandum of advertisement. See pp. 32, 33, supra.

R. 122 (3) of 1890. — Immediately after the expiration of the time fixed by this
rule for appealing against the decision of the liquidator he shall proceed to declare
a dividend, and shall give notice to the Board of Trade (in order that the same may
be gazetted), and shall also send a notice of dividend to each creditor whose proof
has been admitted.

See R. 122 (2) as to the time for appealipg.

The words ' ' declare a dividend ' ' are construed by the Board of Trade as
meaning to dispatch warrants for payment of a dividend or to gazette the above
notice.



Form 438.

Apjdication
to Board of
Trade fur
orders for
payment of
dividend.
Form C,
No. 40.



In the



The Companies (Winding-up) Act, 1890,
Cos Liquidation Account.

Ledger folio-
Ct of .



In the matter of \_insert full name of coy~\.

I certify that by my books the sum of /. stands to the credit of

the above coy with the Cos Liquidation Account at the Bank of

England, and that the sum of 1, is required to pay a [^state ichethcr

^' first,^^ "secoiid,^' or ^'fnal,'^ as the case may be~\ dividend of

in the £ to tlie undermentd creditors, on proofs which have been duly
made and admitted to rank for dividend upon the coy, and I have to
request tliat orders for payment may be issued to me.

The dividend is payable on the day of , 189 — , and notice



CREDITORS.



391



of declaration thereof was for\yarded to the Board of Trade, for inser-
tion in tlie London Gazette, on the — — day of , 189 — .

Date , 189—. A. B., Liqr.

, Address to which cheques and money-
orders shoukl be sent.

To the Board of Trade.

{There are seoen columns helow, headed resj)ly, "No.," "Surname,"
"Christian Name," " Town on which Post Office Money Orders shoukl
be drawn," "Amount of Proof," " Sums under £2," " Sums of £2 and
above."]



Board of Trade Eegulatioxs of January, 1893, Appx.

The payment of dividends wiU in every case, except ivhere a Special Bank Account Distribution
has been authorized, be made by cheques on the Bank of England, or money orders, ^^ dividends,
which wiU be prepared by the Board of Trade on the application of the liquidator
(Form C, No. 40), and wiU be transmitted to him for distribution amongst the
creditors. The Board of Trade will require ten days' notice to enable them to pre-
pare the cheques or money orders for dividends. As imperfect or inaccurate lists
would cause considerable inconvenience and increased labour, great care should be
exercised in the preparation of them, and in all cases of payment to executors,
trustees, representative officials, &c., the name or names should be inserted in the
list. The several payees in the lists should be numbered consecutively, so that for
the piu-pose of identification corresponding numbers may be affixed to the cheques
and money orders. The total amount of the dividend payable should be charged
in the cash book in one sum. If the di\idend has been paid by cheques on the
Companies Liquidation Account, the liquidator, on the expiration of six months from
the date of issue, or an application for liis release, if that event occurs earlier,
should return any cheques or postal orders remaining in hand to the Assistant
Secretary, Finance Department, Board of Trade. If the dividend has been paid
through a special bank, the hquidator wiU be required, at the expiiy of six
months from the date of the declaration of a dividend, to forward to the Insijector-
General for audit, vouchers for the dividends paid and a list of those remaining
unclaimed. The liquidator wiU then be furnished with a receivable order for pay-
ment into the Bank of England of the amount of the dividends unclaimed. Under
no circumstances should imclaimed dividends be credited to the estate without the
previous sanction of the Inspector-General.

[When there is a special bank account the dividends are paid by cheques on that
account, as to wliich see Chap. XX V.]



{Title.)

[Please bring this Dividend Notice with you.]

Dividend of in the £.



[Address.]



Date



189-



Form 439.

Notice of
dividend.
Form 72 of
1890.



Notice is hby given that a dividend of in the pound has

been declared in this matter, and that the same may be received at



392



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



office, as above, on



the



of



189 — , or on any sub-



sequent



between tlie hours of



Upon applying for payment this notice must be produced entire,



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