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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liqr of the above-named co}^, and [upon hearing the solors, &c.] upon payment of
reading [the order to wind up the sd coy, dated, &c., the certificate of a contribu-
the applicant of the settlement of the list of contributories of the sd coy] ^"^J-

an afft of , filed the ■ day of , 189 — , and an a££t of the iggo.

[off recr and] liqr, filed the day of -, 189 — , It is ordered that

C. D. of, &c. [or E. F. of, &c., the legal personal representative of L. M.,
late of, &c., deceased], one of the contributories of the sd coy [or if
against several contributoines, the several persons named in the second
column of the schedule to this order, being resply contributories of Balance order,
the sd coy], do, on or before the day of ■, 189 — , or [subse-
quently] within four days after service of this order, pay to the [sd

B. as such off recr and] liqr of the sd coy at his office, No. — ,

Street, in the county of , the sum of ^., [if against a legal

personal representative add, out of the assets of the sd L. M. deceased, in
his hands as such legal personal representative as afsd, to be adminis-
tered in a due course of administration, if the sd E. F. has in his
hands so much to be administered, or if against several contributories,
the several sums of money set opposite to their respve names in the
sixth column of the sd schedule hereto], such sum [or sums] being the
amount [or amounts] due from the sd C. D. [or L. M., or the sd several

persons resply], in respect of the call of 1, per share duly made,

dated the day of , 189 — .

P. II



482



Form 538.

Another
providine- for
payment of
costs, <S:c.



WINDING-UP BY THE COUET. [ChAP. XXXIX.

The Schedule kefereed to in the eoeegoing Order.



No. on
List.


Name.


Address.


Description.


In what Character
included.


Amount due.












£ s. d.



Note. — The copy for service of the ahove order must be indorsed as follows : —

" If you, the undermentioned A. B., neglect to obey this order by the time
mentioned therein you will be liable to process of execution." These words are often
placed on the face of the order, before the schedule, if any.

The schedule is only added where there are two or more contributories.

The above order, commonly called a " Balance Order," is copied, almost verbatim,
from Form 39 of 1862.

The note at the foot of the order is essential. Hampden v. TFallis, 26 0. Div. 746.

See orders actually made in Newspaper Co-operatire Association, 1891, N. 0385;
V. Williams, J., 28th Hay, 1892 ; Automatic Door Co., Giflfard, Reg., 8th Sept. 1892.

Upon, &c., and au afft of, &c., It is ordered tliat tlie several persons
named in tlie second column of tlie schedule hto being resply contribu-
tories of tbe sd coy, do, on or before the 16tli day of Sept., 1895, or
subsequently within seven days after service of this order, pay to the
applicants the sd C. and B., as such liqrs as afsd, at their offices, No. — ,

Street, in the City of London, the several sums of money set

opposite to their respive names in the sixth column of the schedule hto,
such sums being the amounts due from the sd several persons resply
in respect of calls duly made. And it is further ordered that the sd
several persons whose names are set forth in the second column of the
schedule hto, do, within the like period, pay to the sd C. and B., as
such liqrs as afsd, the several sums set opposite to their respive names
in the seventh column of the schedule hto, being the ascertained pro-
portion of the costs of this applicon properly payable by such several
persons resply. And it is further ordered that such persons do pay
interest at the rate of 51. p.c. p. a. on the amounts specified in the
sixth column of the schedule hto, so due from them resply from the
time appointed for payment of such calls to the time of actual pay-
ment. And it is ordered that the respive sums set opposite to the
respive names of the sd several persons in the schedule hto who
are resply married women be payable out of their sej^arate ppty
re.sply as hnftr mentd and not otherwise. And it is ordered that exe-
cution liereon against the sd several persons who are married women
be limtd to their separate ppty resply, not subject to any restriction
against anticipation unless by reason- of sect. 19 of the Married
AVonion's Troporty Act, 1882, the ppty shall bo liable to execution
notwithstanding such restraint. And it is ordered that the several



CONTKIBUTORIES. 483

sums payable by T., &c. named in tlio sd schedule lito be paid by tliem
out of the assets rosply of T., deed, and X., deed, in their respive
hands as legal personal representatives resply of the sd T. and X.,
deed, to be administered in a due course of administration if the sd
T., &c. resply have in their hands so much to bo administered. And
it is ordered that the remainder of the sd applicon do stand over.
Economic Fire Office (0082 of 1894), Hood, Eeg., loth Aug., 1895.

The schedule contained eight columns headed respectively — (1) Serial niunber on
list ; (2) Name and address ; (3) Description ; (4) In what character included ;
(5) Number of shares ; (G) Total amount of call due ; (7) Proportion of costs ;
(8) Total amount due exclusive of interest. Indorsement as on note to Form 537.



Upon the applicon of the [off reer and] liqr of the sd coy, and upon Form 539.
reading, &c., [Order for payment of call]. And order that the sd W. Order for
do, on or before 22nd Feb. 1883, or within seven days after service of payment of
this order upon him, pay to the sd S. the sum of 3^. 16s. 6f/., being the
apphcant's ascertained costs of this applicon. Public Supphj Associa-
tion, Fry, J., 5th Feb. 1883. B. 245.



Upon the applicon of S., the [off] liqr of the above-named associa- Form 540.
tion, and upon hearing the solors for the applicant and for F., a Order for
contributory of the sd association, and upon reading &c.. It is further call,
ordered that a further call of 40/. p.c. on the amounts insured in the
Greneral Average Club and 45/. p.c. on the amounts insured in the
Total Loss Club be made on the several persons named in the schedule
hereto, being contributories of the sd association. And it is ordered
that each of the sd several persons named in the schedule hereto do

pay to the sd [o£E] liqr, S., at his office situate at , in the City of

London, on or before the 1st day of Oct. 1891, the amount which will
be due from him in respect of such further call. Lowestoft Mutual
Lisurance, Kekewich, J., 11 Aug. 1891. B. 1049.



insurance
association.



Upon the applicon of the [off recr and] liqr, &c., Order that the Form 54L

several persons named in the first column of the schedule to this T~; ~

_ . Order tor

order, being resply contributories of the sd syndicate, do within four payment of

days after service of this order upon them resply pay to , the [olf ^^^^ where

recr and] liqr of the sd syndicate, at his office, No. — — , m the City of registered.

London, the several sums of money set opposite to their respective

names in the fourth column of the sd schedule, being the amounts due

from the sd several jpersons resply in respect of the calls of 50 p.c,

50 p.c, and 90 p.c. on the amounts resply originally subscribed by

each contributory, made by the orders dated resply the 1st of Aug.

ii2



484



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



1874, the 9tli of April, 1875, and tlie 1st of June, 187G, or some or
one of such calls. Royal Victoj-ia Palace Theatre Syndicate, 5th April,
1878. B. 808.

For order to pay calls made before wiiiding-up, see infra, Form 553.



Form 542.

Order on a
B. contribu-
tory.



Upon the applicon of the [off] liqr, &c., Order that the sd B., of
-, a contributory, as being a past shareholder of the sd society,



who ceased to be a member within a year before the commencement of
the winding-up, do, on or before 13th May, 1881, pay to S., the [off]
liqr of the sd society, at his office situate, &c., the sum of 4,240/.,
being a call of 212/. per share in respect of the twenty shares lately
held by him in the sd society. Albion Life Assurance Society, 13th
April, 1881, Fry, J. A. 684.

A general order on the B. list is made as in Form 628.



Form 543.

Affidavit of
service of
order for pay-
ment of call.
Form 65 of
1890.



{Title.)

I, J. B., of, &c., make oath and say as follows: —

1. I did on the day of , 189 — , personally serve G. F., of

, in the county of , &c., with an order made in this matter by

this Ct, dated the day of , 189 — , whereby it was ordered

[set out the order~\, by delivering to and leaving with the sd Gr. F., at

•> , in the county of , a true copy of the sd order, and at the

same time producing and showing unto him, the sd G. F., the sd
original order.

2. There were indorsed on the sd copy when so served the following
words, that is to say, "If you, the under-mentd G. F. neglect to obey
this order by the time mentd therein, you will be liable to process of
execution."

Sworn, &c.

R. S. C, Ord. LXVII. r. 1, provides that — "Except in the case of an order for
attachment, it shall not be necessary to the regular service of an order that the
original order be shown if an office copy of it be exhibited." Accordingly the
words " an office copy of " might be inserted in paragraph 1 of the above affidavit
where convenient.



Form 544.

Affidavit of
BrTvico on
Bevoral.



1 . That I did on the respective days mentd in the second column of
the Rohedulo hereto, personally servo the several persons whose names,
addresses, and descriptions are set f(n'th in the third, fourth, and fifth
columns of the sd schedule opposite to the sd respective days, with the

order made in this matter by this Ct, dated the day of ,

whereby it was ordered [set out order in past te7isc^, by delivering a



CONTRIBUTORIES.



485



truo copy of tlio sd order to and leaving the same witli each of tlio sd
several persons at the respective places set forth in the third column of
the ed schedule opposite to their respective names, except that only
that part of the schedule to the sd order which related to each of the
sd several persons was included in the sd copy order served on him as
afsd. And I at the same time produced and showed to each of the sd
several persons [an office copy of] the sd original order duly passed
and entered.

2. There was indorsed upon each of the sd copies, at the time of
such service thof as afsd, a memdum in the words following ; that is

to say: — "If you, the within mentd , neglect to obey this order

by the time mentd herein, you will be liable to process of execution,"
except that the name of the person so served with such copy order was
inserted in such memdum after the word " within-mentd."



The Schedule above referred to.



No. on
List.



Date of
Service.



Names of
Persons served.



Addresses.



Description.



Place of
Service.



On the



day of



I personally served on the within-named Form 545.



A. B. the withm order [or the order whereof the withm is an office ~ ;

-11 IT- 11- -IT TA-n. -1 Memorandum

copyj by delivering to and leaving with the sd A. B. at , m the of service to

county of , a true copy of the sd order (except that such copy only ^^ made by

included so much of that part of the scliedule to the sd order as related ino- service.

to the sd A. B.), and at the same time producing and showing to him

the sd original order duly entered [or the sd office copy]. There was

indorsed on the sd copy when so served a memdum in the words

following, that is to say : — " If you, the within-mentd , neglect to

obey this order by the time mentd therein, you will be liable to

process of execution."



detective.



Upon the applicon of the off liqr of coy, and upon hearing the solor Form 546.
for the applicant, and upon reading an afft of the sd off liqr, filed, Libertvto
&c., Order that the sd off liqr be at liberty to pay out of the assets of employ
the sd coy to E. P., or to such person or persons as may give informa-
tion enabling him to recover calls from the contributories of the sd
coy who have not yet satisfied their liability, a commission of 1 5 per
cent, upon all sums not exceeding 400/., and a commission of 10 per



486 WINDING-UP BY THE COURT. [ChAP. XXXIX.

cent, upon all sums exceeding 400^. whicli may be recovered in conse-
quence th.of. And let such payments be allowed to the sd off liqr on
passing his accounts. Estates Livesiment Co., M. E., 12th Jan., 1878.
A. 56.



Form 547.

Another.



Upon the applicon of L., the [off] liqr, &c.. Order that the applicant
be at liberty to employ W. P. to find out the whereabouts of the con-
tributories mentd in the schedule hto. And order that the sd P. be
allowed a commission of 20 per cent, on all amounts up to 100/.
recovered from the sd contributories, and 15 per cent, between 100/.
and 500/., and 10 per cent, on all amounts recovered beyond 500/.
National Funds Co., M. E., 28th Feb., 1878. B. 445.

For similar order by Fry, J., see St. Nazaire Co., lih. April, 1879. B. 685.

For order of M. R., authorizing the employment of P. at a commiesion to dis-
cover whereabouts of contributories, and api^roving of the agreement which had
been prepared, see BarnecPs Banlcing Co., M. E., 9th May, 1879. A. 1496.



Order of

Court.



Set-ofe.



Suing for



Enforcing payment of Application and Allotment
Moneys, and Calls made before Winding-up.

Sect. 101 of 1862. — The Court may, at any time after making an order for
winding-up the company, make an order on any contributory for the time being
settled on the list of contributories, directing payment to be made, in manner in the
said order mentioned, of any moneys due from him or from the estate of the person
whom he represents to the company, exclusive of any moneys which he or the
estate of the person whom he represents may be liable to contribute by virtue of
any call made or to be made by the Court in pursiiance of this part of this Act ;
and it may, in making such order, when the company is not limited, allow to such
contributoiy by way of set-off any moneys due to him or the estate which he
represents from the company on any independent dealing or contract with the
company, but not any moneys due to him as a member of the company in respect
of any dividend or profit.

Provided that when all the creditors of any company, whether limited or
unlimited, are paid in full, any moneys due on any account whatever to any
contributory from the company may be allowed to him by way of set-off against
any subsequent call or calls.

Sect. 98 also directs that the Court shall cause the assets of the company to be
collected, and sect. 99 provides for settling the list of contributories.

Under sect. 13 of 1890, general rules (83 — 95 of 1890) have been made for giving
the liquidator the powers of the Court iindcr the Act of 1862 with reference to the
list of contributories, the collection and distribution of the assets, and (subject to
contrf)!) making calls. But sect. 101 of 1862 is not mentioned in sect. 13 of 1890,
and the rules of 1890 do not interfere with it, and the practice is substantially the
same as it was before tho commencement of the Act of 1890.

The fact that a balance order has been made for calls made before winding-up does
not merge the debt, and the company may still sue for tho calls. Westmoreland, ^c.
Co. V. Feilden, (1891) 3 Ch. 15.



CONTRIBUTORIES. 487

Board of Trade. Form 548.

Office of the Off Eecr in Cos Liquidation, Official an-

33, Carey Street, Lincoln's Inn, plication for

London, W.C, , 189—. ^'XuS^^fd.

Please address all conununications
respecting this matter to the Off
Eecr in Cos Liquidation, and quote
the number below.

No. of 189—.

Telegrams ; —
"Concluding, London."

In tlae matter of , Limtd.

I have to apply to you for payment of /., being the amount

due from you to this coy in respect of unpaid calls. If you fail to
pay this sum to me within seven days from the date of this notice, it
will be my duty [to include your name in the list of contributories of
the coy, and] to apply to the Court for an order enforcing payment.
Under such order you will be liable to process of execution for the
sd amount, together with the costs of the proceeding.

I am, your obedient servant,

A. B. C, Off Eecr and Liqr.
Moneys not sent by post can be pd in every week day, except Satur-
day, from 10 to 4 ; on Saturdays, from 10 to 1.

Cheques to be made payable to the off recr or bearer, and crossed
" Bank of England, Credit of Cos Liquidation Account."

The above form is issued directly after the liquidator's appointment, for the
purpose of getting in calls made before the winding-up order, and still unpaid.

After settlement of the list of contributories the following application is issued to
persons liable to pay calls made before the winding-up order : —

{Address, date, title, ^'c, as in last form.) Form 549.



The time during which you might have made applicon to the Ct Last official

to remove vour name from the list of contributories of the above coy, !ipphcatu)n

, ^„T. ,. • ^ l^ foi' payment

had you any legal grounds for domg so, having expired on the of c;iUs.

inst., it now becomes my duty to take out a summons against you to

enforce payment of the sum of 1., being the amount due from you

in respect of the shares you hold. I propose, however, to defer taking

this step for a period of seven days, to give you the opportunity of

paying the claim and avoiding the costs of the fui-ther proceedings

prescribed by the Act. The amount should be paid to me on or before

the inst.

I am. Sir, your obedient servant,

A. B. C, Off Eecr and Liqr.
Proceedings against contributories are frequently taken under sect. 101.
The summons should be served by post (see R. 21 of 1890) on the contributories Service by
against whom the order is sought, and an affidavit of service should be made. post.



488



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



Set-oflf.



Interest.



Sometimes the application applies to calls made before the winding-up, and also
to calls made by the liquidator.

Generally the application is made against several persona, but, if necessary, it
can be made against an individual.

A contributory in a limited company cannot set off against money due from
bi-m to the company a debt due to him from the company. GrisseWs case, 1 Ch.
528; WhitehoHse ^- Co., 9 C. D. 595 ; West of England Bank, 12 C. D. 823; GilVs
case, 12 C. D. 755.

Where the calls or other moneys, by virtue of the articles of association or
otherwise, carry interest, the summons can ax^ply for interest accordingly (see
Forms 554 — 556), and in any case costs should be applied for.

It should be ascertained whether the resolution for a call was valid. It must state
not only the amount of the call, but also the time at which it is to be paid. Caw-
ley S; Co., 42 C. Div. 209.



Form 550. Let, &c. See Form 10.



Summons for
payment of
calls made
before wind-
ing-up,
varied for
case of ap-
plication and
allotment
moneys.



On the part of S., the [off recr and] liqr of the above-named coy,
that the several persons named in the second column of the schedule
hereto may be ordered, within seven days after service of the order to
be made hereon, to pay to the sd S., the [oif recr and] liqr of the sd

coy, at his office, No. — , Street, in the county of , the several

sums set opposite their names in the sixth \or, tvhere apjilicon a7id
allotment moneys also claimed, the tenth'] column of the sd schedule, such
sums being the amounts due from the sd several persons resply in
respect of [application money, allotment money, and] a call [or calls]
made by the directors of the sd coy prior to the order to wind up the
same, and that the sd several persons may be ordered also, within seven
days after the service of the order to be made hereon, to pay to the
applicant, at his office afsd, interest on the respective amounts specified
in the sixth, [seventh, eighth, and ninth] columns of the sd schedule
at the rate of 5Z. p.c. p. a. from the time when such call \or the same~\
became due, as mentd in the same columns of the sd schedule, until
payment, and that the sd several persons may be ordered to pay the
costs of this applicon.

Dated, &c.

The Schedule above referred to.



In the case of a summons for one call only, the schedule will be as in Form 537

[six columns], but heading to sixth column, " Call of 1., made • Jan.

189—."

Where ncccssaiy, there can bo additional columns for several calls, &c., e. g., in a
summons for application money, allotment money, and two calls, there should be ten
columns, licadcd as follows : — (1) No. in list. (2) Name. (3) Address. (4) In
what character included. (5) No. of shares held. (6) Amount due on application.
(7) Amount duo on allotment. (8) Call of 1/., made 2Gth Sept. 1890. (9) Call of
%. 10.?., mado 25th Jan. 1891. (10) Total amount duo.



CONTRIBUTORIES. 489

Formal parts. ScoFormll. Form 551.

1 . I did, on tlio day of , in tlie manner hnfter mentd, serve



11 -,■,-■» Affidavit of

a true copy ot the summons now produced to me, and marked A, upon service of

each of the respective persons whoso names and addresses are set forth **i"n«ions to

in the [off recr and] liqr's certificate of settlement of tlie list of contri- of call.

butories of the above-named coy, dated &c., and in the second and third

columns of the schedule to the sd summons. [^Someiimes the following

words are added : — Except that in the copy summons served on each of

such persons there was inserted so much only of the sd schedule as

related to the person on whom the copy of the sd summons was served,

in the same words and figures as are set forth in the sd schedule to the

sd summons.]

2. I served the sd respective copies of the sd summons by putting

such copies resply into envelopes, duly addressed to such persons

resply according to their respective names and addresses appearing in

the sd certificate and in the schedule to the sd summons, and with the

proper stamps, &c. [^conclude as in para. 3 of Form 503].

If any of the addresses are different from those contained in the list of contribu-
tories the fact should be noticed, and in all cases the affidavit should state that the
addresses are those last known to the liquidator.

There must also be an affidavit showing the necessity for the proposed call.



1. There are due from the several persons named in the second Form 552.

column of the schedule to the summons issued in this matter on T^iTi ~^ TTT

Amdavit with

19th July, 1884 [produced and shown to me, and marked A], being a view to
resply contributories in their own right of the sd coy, the several sums °^^^'^-
set opjjosite to their respective names in the tenth column of the sd
schedule, being the amount due from them resply on account or in
respect of [application money, allotment money, and] calls \or a call]
payable on shares held by them in the above-mentd coy, as appears
by the schedule to the sd summons. [The calls referred to in the sd

schedule were] made by the directors of the sd coy on the day of

prior to the winding-up of the sd coy, in respect of the several

shares held by them, as mentd in the fifth column of the sd schedule

[together with interest on the sd several sums from the sd day of

at the rate of 5 p.c. p. a.], as appears from the books of the sd

coy, with the exception of C. B. and J. B., who have, since the sd
summons was issued, pd the amount due from them.

2. The claims of the creditors of the coy [allowed against the coy, as

appears by the chief clerk's certificate, dated ], amount in the

aggregate to 1., or thbts.

3. I believe that there are no assets of the sd coy, except, tSrc, and
the sums due from the contributories of the coy as afsd, which amount
in the aggregate to 769/., and to the best of my information and belief



490



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



it will be impossible to recover in respect of tbe sd sums more than
500/. or thbts.

4. My solors liave estimated for tbe purposes of tbis my afft, and
have informed me that the costs of the petr and the creditors and con-
tributories, directed to be taxed by the order to wind up the sd coy,
but not yet taxed, will amount to not less than 110/. or thbts.

5. I have estimated the costs, charges, and expenses of and incident



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 65 of 134)