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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shares, until payment in full of the amount due in respect thereof.
Reliance Builditig Society, Chitty, J., 3rd May, 1892. B. 661. W. N.
(1892) 77; 66 L. T. 823.




In England and Wales.

Orders of the Chancery Division may be enforced in accordance with R. S. C.
Ords. XLII. to XL VIII.

E. S. C. 1883, Ord. XLII. r. 24. — Every order of the Court or a judge, in any Order en-
cause or matter, may be enforced against all persons bound thereby, in the same forced hke
manner as a judgment to the same effect. Jo*

But an order, even though made in Chambers, cannot be enforced by execution
until it is duly filed. Ballard v. Tomlinson, 31 W. R. 563. There is no " entry" of
orders in the registrar's office.

For full details as to the mode of enforcing orders, the practitioner is referred to
An. Pr. (1897), pp. 801 et seq.

The following provision must be borne in mind : —

Sect. 1 (6) of 1890. — Every Court [including the Palatine Courts and County Each Coui-t
Courts] having jurisdiction under this Act to wind up a company, shall for the piu - has High
pose of that jurisdiction have all the powers of the High Court. -P

See, however, as to County Courts, Re BasseWs Plaster Co., (ISQl) 1 Q. B. 96, that
a County Court cannot by virtue of this enactment issue a writ oifi.fa. to sheriff.

It may be convenient here to specify shortly the mode of enforcing those orders Modes of
which are most frequently made in vsinding-up, viz. : — ^ orciug.

(a) Orders for payment into Court. See Leeds Banking Co., 1 Ch. 151.

(b) Orders for i^ayment to the liquidator or official receiver within a sj)ecified

period after service.

(c) Orders to do any act (other than the payment of money) or to abstain from

doing any act.

As regards (a), such orders can be enforced by writ of sequestration, and where Payment
the order is against a trustee or person in a fiduciary capacity, or a solicitor "^''^ ^^ourt,
in his character as an officer of the Court, by attachment. See sect. 4 of the
Debtors Act, 1869 (32 & 33 Vict. c. 62), and E. S. C. 1883, Ord. XLII. r. 4 ;
and see generally as to attachment, R. S. C. Ord. XLIV. In either case evidence
of the service of the order is requisite. Sequestration can be issued either under a
judgment or an order without special leave. Sprunt v. Fiigh, 7 C. D. 567.

As regards (b), such orders may be enforced — Payment to

(1) By writs vijt.fa. or elegit. See R. S. C. 1883, Ord. XLII. r. 17. liquidator.

(2) By writ of sequestration.

(3) In the excepted cases mentioned in sect. 4 of the Debtors Act, 1869 (32 & 33

Vict. c. 62), by attachment.

(4) By imprisonment for six weeks, under sect. 5 of the Debtors Act.

KK 2



(5) By attachment of debts. See R. S. C. 1883, Ord. XLII. rr. 32 et seq. ;

Ord. XLV.

(6) By charging- shares or stock belonging to judgment debtors. See R. S. C.

1883, Ord. XLVI.

Equitable (7) By equitable execution, i. e., the appointment of a receiver.

execution. The receiver can be appointed in the -winding-up [Salt v. Cooper, 16 C. D. 544) ;

Receiver. and gives the party on -whose application he was appointed a valid charge on the

property over -which he is appointed receiver. Ex parte Evans, 11 C. D. 691. It
is necessary to resort to equitable execution -when there is a d i ffi culty in obtaining
payment, and it is known that the judgment debtor is entitled to property which
cannot be effectually taken in execution, by writ oiji. fa., elegit, or the like. Man-
chester District Bank v. Parlcinson, 22 Q. B. D. 173; Ee Shephard, 43 C. Div. 136.
For example, where he is entitled to the equity of redemption in freehold or lease-
hold property {AngIo-Italia>i Bank v. Davies, 9 C. D. 275 ; Smith v. Cowell, 6 Q. B.
D. 75) ; or to dividends on stock standing in names of trustees [Bryant v. Ball, 10
C. D. 153) ; or to payment of money not capable of attachment as a debt, e.g., in
administration action or winding-up [Westhead v. Riley, 25 C. D. 413) ; or to a
reversionary interest [Fiiggle v. Bland, 11 Q. B. D. 711 ; Tyrrell v. Fainton, (1895)
1 Q. B. 202) ; or income of trust fund. {Oliver v. Lowther, 28 W. R. 381 ; Webb v.
Stenton, 11 Q. B. D. 518). And see other cases cited An. Pr. (1897) 924 et seq., and
Solmes V. Millage, (1893) 1 Q. B. 551 ; and Re Potts, 9 T. L. R. 308; Fleggy. Frentis,
(1892) 2 Ch. 428. There is no jurisdiction to appoint merely because it is more
convenient than the usual modes of execution. The order cannot be made at the
instance of a judgment creditor unless the Court of Chancery could have done so
before the Judicature Act. Harris v. Bcaucltamp, (1894) 1 Q. B. 801. R. S. C,
Ord. L., r. 15a (Oct. 1884), must be borne in mind.

As regards (c), such orders may be enforced by writ of sequestration (R. S. C,
Ord. XLIII. r. 6 ; see Sprunt v. Fugh, 7 C. D. 567) ; or by attachment or com-
mittal. R. S. C, Ord. XLII. t.7; Re Evans, (1893) 1 Ch. 252. And as to seques-
tration, see Miller v. Huddlcstone, 22 C. D. 233.

See also Chap. XLIV. as to orders for public examination.

R. S. C. 1883, Ord. XLII. r. 11. — No writ of execution shall be issued without
the production to the officer by whom the same should be issued of the judgment
or order upon which the writ of execution is to issue, or an office cojjy thereof,
showing the date of entiy. And the officer shall be satisiied that the proper time
has elapsed to entitle the creditor to execution.

In the registrar's office all orders are stamped with the date on which they were
" completed."

For forms of praecipe for the issue of writs of execution, see App. G. to the Rules
of 1883 ; and for forms of writs of execution, see App. H. to same rules. An. Pr. 1897,
vol. ii. pp. 81 et seq. and 88 ct seq. When the order is for payment within a limited
time after service, there must be an affidavit of service before a writ of execution will
be issued. See R. 17 of Ord. XLII.; see Form 543. And generally as to service,
see R. S. C, Ord. LXVII. ; and compare R. 21 of 1890. And wherever it is sought
to enforce an order, it must appear that the copy order served was didy indorsed in
accordance with Ord. XLI. r. 6, supra. Chap. XIII. ; for although in case of a
balance order an indorsement in .accordance with Form 64 of 1890 (Form 537, supra)
would seem to be sufficient, in practice the form set out in Ord. XLI. r. 5 is endorsed.

Misfeasance Companies (Winding-up) Act, 1893, sect. 1. — An order for payment of money

order. made by the Court uiidrr sect. 10 of tlie Companies (Winding-up) Act, 1890, shall

be deemed to be a final judgment within the meaiiiug of paragraph (g) of sub-

Bcct. (I) of K-nt. 4 of tlie Bankruptcy Act, 1883.

Other orders.

Production of
judgment on


As regards coiitributories, tlio Act of 1SG2 provides as follows : —

Sect. 105 of 1862. — If any person made a eoutributory as personal representative Orders
of a deceased contributory makes default in paying any sum ordered to be i)aid by agaiust con-
him, proceedings may be taken for administering the personal and real estates of tributones.
such deceased contributory, or either of such estates, and of compelling payment
thereout of the moneys due. [As to this section and the next, see lie Hubbaek, 29
C. D. 934.]

Sect. 106 of 1862. — Any order made by the Court in pursuance of this Act upon
any contributory shall, subject to the provisions herein contained for appealing
agaiust such order, be conclusive evidence that the moneys, if any, thereby appear-
ing to be due or ordered to be paid are due, and all other pertinent matters stated
in such order are to be taken to be truly stated as against all persons, and in all
proceedings whatsoever, with the exception of proceedings taken against the real
estate of any deceased contributory, in which case such order shall only be primd
facie evidence for the piu-pose of charging his real estate, unless liis heirs or devisees
were on the list of contributories at the time of the order being made.

Sect. 95 (7) of 1862. — . . . In all cases where he [the liquidator] takes out letters
of administration, or otherwise uses his official name for obtaining payment of any
moneys due from a contributory, such moneys shall, for the purpose of enabling
him to take out such letters or recover such moneys, be deemed to be due to the
[official] liquidator himself.

For affidavit of service on contributories, see Form 543.

Upon the applicon of the [off recr and] liqr of the coy, and upon Form 566.

hearing the solors for the applicant, and upon reading the order charoino-
dated, &c., the certificate, dated, &c., a balance order dated 25th order on
July, 1882, the order dated, &c., Order that the 500 shares in the contributory.
N. Coy, Limtd, standing in the name of A., do stand charged with the

payment to B., of , the [off recr and] liqr of the above coy, of that

sum of 50/. and interest thereon at the rate of 4 p.c. p. a. from 25th
July, 1882, until payment. And it is ordered that the sd N. Coy be
restrained from permitting a transfer of the shares of the sd A. C.

And order that service upon Mrs. B., of , be deemed good ser\dce

upon the sd A. C. named in the sd order of the 25th July, 1882. Arts
Promotion Co., Chitty, J., 8th May, 1884. A. 617.

As to obtaining charging orders on stock or shares, under 1 & 2 Vict. c. 110,
s. 14, and 3 & 4 Vict. c. 82, s. 1, see R. S. C, Ord. XLVI. r. 1, and Forms 27 and
28in App. K. ; and An. Pr. (1897) 866.

The order will be made on summons.

In order to obtain a sale, a separate action, by writ or originating summons, Sale under
must be brought to enforce the charge. Leggoit v. JFesteni, 12 Q. B.. D. 280; charge.
Bickctts V. Eickctts, "W. N. (1891) 29 ; An. Pr. (1897) 870. See Form 451a.

See Form 571.

As to charging orders on shares really belonging to persons other than the share-
holders, see Cooper v. Griffin, (1892) 1 Q. B. 740; Eoxvard v. Sadler, (1893)
1 Q. B. 1.

Upon the applicon of the [off recr and] liqr, Order that B., of , Form 567.

solor, do attend before, &c., on Monday, 7th July, 1884, at 3,30 of the q^^^.^ ^ —



of judgment
debtor for
as to debts
due to him.

clock in tlie afternoon, to be orally examined as to any and what deLts
are owing to him. And it is ordered that the sd A. B. do produce all
his books of accounts, all bankers' pass books, papers, and documents
before, &c., at the time of such examination or any adjournment thof.
And it is ordered that the costs of and incident to this applicon be
reserved. Dominion of Canada Plumbago, Pearson, J., 23rd June,
1884. A. 902.

See R. S. C, Ord. XLTI. rr. 32 et seq., as to discovery in aid of execution.

But see the form as now actually used, An. Pr, (1897), vol. ii. 128.

Form 568. Upon the applicon of the [off recr and] liqr, &c.. Order that all

' debts due and owing or accruing due from The Bank of S., of

— , a contributory of the coy, be attached to answer an order made

Order attach
ino- debts

against S. by the Ct on 3rd May, 1879. And order that the sd bank,
their solors or agents, do attend at the chambers of, &c., on Monday,
10th June next, at 11 o'clock in the forenoon, to show cause why they
should not pay to E., the [off recr and] liqr of the coy, the debt due
from them to the sd S., or so much thof as may be sufficient to satisfy
the amount due to the sd S. under the sd order of 3rd May, 18 — .
British Fire Office, M. R, 5th June, 1879. A. 1103.

As to attachment of debts, see R. S. C, Ord. XLV. r. 1, and Form 25 in
Appendix B., and Forms 39 and 40 in Appendix K.. The order will be made
ex parte in the first instance. As to what debts can be attached, see Wehh v. Stanton,
11 Q. B. Div. 518; Macdonald y. Tacquah Gold Mines, 13 Q. B. Div. 535; Be Pass
V. Capital, S;c. Corporation, (1891) 1 Q. B. 216 ; Beasley v. Money, (1891) 1 Q. B.
509 ; and An. Pr. (1897), pp. 857 et seq. ; Re Greer, (1895) 2 Ch. 217.

Form 569.

Liberty to
proceed in

Balance order

not final

Upon the applicon, &c., Order that the sd off liqr do take proceed-
ings in bankruptcy against A., of , one of the contributories of

the sd coy duly settled upon the list of contributories for ten shares, as
appears by the chief clerk's certificate, in respect of the sum of 90/.
due from him in respect of such shares, and ordered to be pd, as to
50/., by the sd order of 7th March, 1883, and as to 40/., remainder
thof, as by the sd order of 1st Aug. 1882. Scottish Petroleum, Kay, J.,
15th Dec. 1883. B. 1662.

This order, it will be observed, was made before the Bankruptcy Act, 18S3, came
into force.

It was held in Ex parte WInnney, In re Sanders, 13 Q. B. D. 476, that an order
against a contributory for the payment of money was not a "final judgment"
within the meaning of sect. 4 of the Bankruptcy Act, 1883, and accordingly that a
bankruptcy notice cannot bo served under paragraph (g) of that section. See also
lie Chincry, 12 Q. B. Div. 342; Ex parte Schmitz, 12 Q. B. Div. 509. Accordingly,
whore it is desired to servo such a notice with a view to bankruptcy proceedings, it
appears to be neccHHary to bring an action for what is due. It seems that an action
cannot bo brought on a balance order directing paymcut to the oflicial liquidator.


Chalk V. Tennnnt, 36 W. R. 2G3 ; W. NT. (1887) 159. Nevertheless, the making of a Action rot-
balance order does not convert the debt into a judgment debt, and, accordingly, the withstanding
liquidator can, in the name of the company, bring an action for the amount. West- "^^'^'^'^^ order.
moreland Co. v. Fielden, (1891) 3 Ch. 15. And the order -will afford conclusive
evidence of the amount due. The writ should be specially endorsed, and where
the action is in the High Court it should be transferred to the winding-up Court.

Upon the applicon of B., the off liqr, by summons issued 28tli April, Form 570.
and returnable 7th May, 1884, Order that the applicant be at liberty Librrtv to sue
to bring and prosecute actions against the five several persons follow- contributories
ing, that is to say (1) A., &c., contributories of the coy whose shares bankruntcr
were forfeited by resolution of the directors passed 28th June, 1882, proceedings.
and confirmed 27th July, 1882. And order that the applicant bo at
liberty, without further summons, to aj^ply to the judge for liberty to
bring and prosecute actions against such other of the contributories of
the sd coy whose names are set out in the exhibit C to the affidavit of
the applicant dated, &c., other than the above-named persons, to
recover payment of the amount due from them to the applicant, as such
off liqr, for calls upon such shares prior to the forfeiture thof . And
order that the applicant be at liberty to commence bankruptcy proceed-
ings, if so advised, against those of the sd five several contributories
against whom he may obtain judgment, and to postpone the commence-
ment of proceedings against such of them as he may think advisable,
so as to be guided, as regards them, by the results of the proceedings
taken against the others. Costs of the applicon to be costs in the
winding-up. Carta Para Co., Pearson, J., 7th May, 1884. A. 662.

Legal proceedings may now be brought with the sanction either of the Court or
the committee of inspection. See sect. 12, sub-sect. 1, of 1890. London MetaUiirz/ical
Co. (No. 2), W. N. (1897) 51.

The pit's claim is as a creditor of C. D., of , deceased : — Form 571.

1. To have the [real and] personal estate of the sd 0. D. administered Z^7T~. '

^ -i i- \\ rit 111 ad-

by the Ct. ministration

2. To have a receiver of such real and personal estate appointed. action against

1 p 1 -n p 1 representa-

The dfts, D. and E., are sued as exors and trustees of the will of the tive of con-
said C. D. [or the sd D. is sued as the admor, and the sd E. as the tributory.
heir-at-law of the sd C. D.].

The plaintiff may sue thus: — "A. B., on behalf of himself and all other the
creditors of C. D., deceased," as in Tnrquand v. Eirhy, 4 Eq. 123 ; or he may make
the company plaintiff, as in European Assurance Socieiij v. Raddiffe, 7 C. D. 733.
The indorsement ^\ ill be as above.

As to the effect of a liquidator obtaining an administration order, see Me Hitbback,
29 C. D. 934.

Upon the applicon of [off] liqrs, Order that the applicants be at Form 572.
liberty forthwith to instruct some jiroperly qualified agent at Montreal, -^1^^^.. ^^
for the purpose of taking proceedings in bankruptcy or otherwise, proceed in

50 i



agaiust !S., lute of , u debtor to the sd Lauk in tLe sum of

41/. 16*. 8d., in respect of calls made upon the sd S. on ten shares
in the sd bank held by him. And order that the applicants be at
liberty to execute any power of attorney that may be necessary for the
purpose of enabling their correspondent in Montreal afsd to take such
proceedings ; the costs of applicants of and incident to applicon to be
costs in winding-up. IJ^'est of England Bnnk^ Fry, J., 28th March,
1881. B. 571.

Form 573.

Order to seize
books and
property of

Upon motion, &c. Order that the liqrs of the association do seize
the books, papers, moneys, and securities for money, goods, and

chattels of C, of , a contributory of the association, and keep the

same safely until further order. Re Imperial Mercantile Credit Co.^
Page-Wood, V.-C, 20th Dec. 1867. See report in 5 Eq. 264.

As to the above order, see sect. 118 of 1862. In Be Cotton Plantation Co., W. N.
(1868) 79, Romilly, M. R., considered tbat an order could not be made where tbe
contributory had not had an opportunity of disputing his liability.

Order to
release pri

Form 573a. Upon the applicon of S., now a prisoner in Her Majesty's jail at C,
by summons dated, &c., and upon hearing counsel for the applicant,
and for P. the liqr apptd in the voluntary winding-up of the above
coy. And upon reading the order dated, &c. whereby it was ordered
that the sd P. the liqr of the above-named coy be at liberty to sue
out a writ or writs of attachment against the sd S. for his contempt in

not having pd the sd sum of 1, in the sd order mentd to the sd

P. as afsd pursuant to such order, an affdt, &c. It is ordered that the
sd S. do pay to the sd P. lOZ. for and in discharge of the costs of the
sd P., and relating to the sd order, dated, &c., and of this applicon.
And it is ordered that upon such payment being made the sd S. be

discharged out of the custody of the sheriff of . Cardiff and

South Wales Licensed Victuallers' General Supply Co., 00104 of 1893.
Wright, J., in Chambers, 21st Dec. 1893.

In Scotland and Ikeland.

Sect. 122 of 1862. — Any order made by the Court in England for or in the course
of the winding-up of a company under this Act shall be enforced in Scotland and
Ireland in the Courts that would respectively have had jurisdiction in respect of
such conii)any if the registered office of the company had been situate in Scotland
or Ireland, and in the same manner in all respects as if such oi'der had been made
by the Courts that are hereby required to enforce the same ; and in like manner
orders, interlocutors, and decrees made by the Coiu't in Scotland for or in the course
of the winding-up of a company shall be enforced in England and Ireland, and
orders made by tlio Court in Ireland for or in the course of winding-up a company
shall be enforced in England and Scotland by the Courts which would respectively


have had jurisdiction in the matter of such company if the registered office of the
company were situate in the division of the United Kingdom whore the order is
required to be enforced, and in the same manner in all respects as if such order had
been made by the Court required to enforce the same in the case of a company
within its own jurisdiction.

Sect. 123 of 1862. — Where any order, interlocutor, or decree made by one Court
is required to bo enforced by another Court, as hereinbefore provided, an office copy
of the order, interlocutor, or decree so made shall be produced to the proper officer
of the Court required to enforce the same, and the production of such office copy
shall be sufficient evidence of such order, interlocutor, or decree having been made,
and thereupon such last-mentioned Court shall take such steps in the matter as may
be requisite for enforcing such order, interlocutor, or decree, in the same manner as
if it were the order, interlocutor, or decree of the Conrt enforcing the same.

Upon tlie applicon on the part of A. and J. and 11., liqrs acting in Form 574.
the voluntary winding-up under the supervision of the Ct of Session rz~,

■ o 1 J J! 1 1 T • ■ -, Making

m bcotland oi the above-named coy, and it appearing by a decree of Scotch order
the Lords of Council and Session in Scotland in this matter, dated 20th ^^ "^^^^' "*

March, 1880, it was declared that T., of , Hampstead, London,

was liable, &c., and upon hearing, &c.. This Ct doth order that the sd
order, dated 20th March, 1880, be made an order of this Ct as against
the sd T. accordingly. Citi/ of Glasyotv Bank, M. E., 17th March,
1881. A. 584 ; 14 C. D. 628. And see Queensland Mercaiitile Ayency
Co., (1892) 1 Ch. 219.

As to Ireland, see Hollijfovd Copper, ^-c. Co., 5 Ch. 93.





Wrong Court

Transfer of

Power to



Who may

Transfer from
one High
Court judge
to another.

Sect. 1 (7) of 1890. — Nothing in this section shall invalidate a proceeding by
reason of its being taken in a wrong Court.

Sect. 3 of 1890. — (1.) The winding-up of a company or any proceedings therein
may at any time and at any stage, and cither with or without application from any
of the parties thereto, be transferred from one Court to another Court, or may be
retained in the Court in which the proceedings were commenced, although it may
not be the Court in which the proceedings ought to have been commenced.

[But the transfer can only be made to a Court which has itself jurisdiction to
wind up the company. Bcal Estates Co., (1893) 1 Ch. 398. Hence the High Court
cannot order a transfer to a County Court which (like the London County Courts)
has no jurisdiction under the Act. Ihid.

And where the County Court had exclusive jiu-isdiction, as in the case of a regis-
tered building society, the winding-up could not be transferred to the High Court.
Ibid., and see Form 578a.

Proceedings in a voluntary winding-up may be transferred. Eeg. v. East Stone-
house, ^c, 65 L. T. 730. The proceedings may be transferred before a winding-up
order has been made {Laxon ^- Co. (1), (1892) 3 Ch. 31 ; 40 W. K. 614) ; although
the petition has been actually opened in Court. East Eulwich Society, 39 W. R.
32. And any particular proceeding, e.g., a proceeding for misfeasance, may be
transferred. Reg. v. Storehouse, supra. As to the transfer of proceedings begun
in the wrong Coirrt, see iliJford Haven Shipping Co., W. N. (1895) 16; Chap. I. ;
Buller and Bassett Co., 35 S. J. 260; and as to retaining or transferring proceedings
to the Stannaries Court, see Be Isew Terras Co., (1894) 2 Ch. 344; and Stannaries
Court (Abolition) Act, 1896.]

(2.) The powers of transfer given by the foregoing provisions of this section may,
subject to and in accordance with general rules, be exercised by the Lord Chancellor
or by any judge of the High Court having jurisdiction under this Act, or, as
regards any case within the jurisdiction of any other Court, by the judge of that

And see the Rules of 1890, infra.

The Rules of 1890 do not provide for the transfer from one judge of the High
Court to another, and as, under the order of the Lord Chancellor of 26th March,
1892, proceedings are now commenced before one particular judge, the occasions
are comparatively rare in which such transfers are required. But there are some
winding-up proceedings under the old practice pending before Chitty, North,
Stirling, and Kckewich, JJ., and under rule 1 of April, 1892, some winding-up pro-
ceedings commenced between the Slst Dec. 1890, and the 6th May, 1892, have been
retained by such judges. Where it is desirable to transfer any such proceedings

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