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Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

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su]3posed to be indebted to the company, or any person whom the Court may deem
capable of giving information concerning the trade dealings, estate, or effects of
the company ; and the Court may requii'e any such officer or person to produce any
books, papers, deeds, writings, or other documents in his custody or power, relating
to the company ; and if any person so smnmoned, after being tendered a reasonable
sum for his expenses, refuses to come before the Court at the time appointed, having
no lawful impediment (made known to the Court at the time of its sitting, and
allowed by it), the Court may cause such person to be apprehended, and brought
before the Court for examination [Form 598] ; nevertheless, in cases where any
person claims any lien on any papers, deeds, or writings or documents produced by
him, such production shall be without prejudice to such lien, and the Coui-t shall
have jurisdiction in the winding-up, to determine all questions relating to such
lien.

Sect. 117 of 1862. — The Court may examine upon oath, either by word of mouth
or upon written interrogatories, any person appearing or brought before them in
manner aforesaid concerning the affairs, dealings, estate or effects of the company,
and may reduce into writing the answers of every such person, and require him to
subscribe the same.

E. 3 (2) of Ap. 1892. — Examinations of persons summoned before the High Court,
tmder sect. 115 of the Companies Act, 1862, shall, unless the judge of the High
Court shall otherwise direct, be heard before the registrar in Chambers.

The powers conferred by the above sections are frequently exercised, e.g.,
(1) where the liquidator, from an examination of the books and papers of the
company, or otherwise, has reason to suspect that there may be some claim under
sect. 10 of 1890 (see Chap. XLV.) ; or (2) where he thinks there may be ground for
taking proceedings for an action against promoters or others ; or (3) where proceed-
ings are pending against the company, and he desires to ascertain whether he can
prudently proceed with or defend an action {Masscy v. Allen, 9 Ch. D. 165 ; Bate-
man's case, 15 W. R. 245 ; Metropolitan Brush Co., 51 L. T. 817) ; (4) where the
circumstances in which a person became a member, or ceased to be a member, are
material ; (5) where a contributory cannot be found or is in defaiilt.

The object of the sections is to enable the liquidator to obtain discovery, and there
need not be any specific issue or dispute pending. Clcmcnt''s case, 13 Eq. 178 ; Gold
Co., 12 Ch. Div. 77.

A. primA facie case against any person need not be made out in order to justify an
examination ; it is sufficient if the judge is satisfied that there is a fair suspicion.



PRIVATE EXAMINATION AND DISCOVEKY. 517

Gold Co., 12 C. Div. 77. Nor is it necessary to show that the person proposed to

be examined can give any information ; it is sufficient if the jtidge deems that he is

capable of giving information. Clcmenfs ease, 13 Eq. 179 ; FricJcer's case, ibid. 178.

And a person summoned has no locus standi to appeal, except in a case of oppression Appeal.

{Seiron^s case, 15 Ch. Div. 140) ; or where there is no jurisdiction to examine

{SiU-slone and Dodsworth Co., 19 Ch. Div. 118 ; and see Gold Co., supra). But see the

observations of Bowen, L. J., in North Australian Territory Co., 45 Ch. Div. 87, 93.

As regards the contributories, the following have been examined :— Sister and Contribu-

nephew of defaulting contributory : Swan's case, IQ'E.q^.Qlb ; mother-in-law of con- ^°^'^^^-

tributoiy: Fricker's case, 13 Eq. 178; brother through whom contributory took

share : Clement's case, 13 Eq. 179 ; person alleged to have taken shares in a fictitious

name, or without consent of nominee : Pugh and Sharman's case, 13 Eq. 566 ;

manager of bank where contributory had account: JBloxhani' s ease, 36 L. J. Ch.

687 ; Brewitfs case, 14 Eq. 6 ; a debtor to a contributory : Troiver and Laivson's

case, 14 Eq. 8. But a mere creditor of the company, who is not shown to be capable of Creditors.

giving any information, is not to be examined. Accidental, S;c. Insurance Co.,

5 Eq. 22.

It is submitted that a private examination may be ordered so as to obtain informa-
tion with a view to having a public examination of any of the persons mentioned in
sect. 8 (2) of 1890. See Ee Eendrey, 1 Ch. D. 533. And the Court may of its own
motion order a private examination: Land Securities Co., W. N. (1894) 91, and may Adjournment
adjourn such examination into Court. This was done in the case of George Neivman "^^^ Coui-t.
% Co. (not reported).

As to attachment for disobeying an order for examination, see Me Evans, (1893) Disobedience.
1 Ch. 252.

As to filing and inspecting depositions, see supra, p. 22.



Let all parties concerned, &c., on the hearing of an applicon of the Form 686a.

[off recr and] liqr of the above-named coy for an order that he may Summons for

be at liberty to examine A., B., and C. under sect. 115 of the Cos Act, le.ave to

1862, respecting the affairs of the sd coy, and for the production of all examine

books, papers, deeds, writings, and other documents in his custody or (sect. 115 of

power in anywise relating to the sd coy, [and that ; of , be ^^^ appoint-

appointed examiner for the purpose of conducting the sd examination], ment of

examiner.

Dated 9th day of July, 1892.

Stamp, 3s.

See R. 3 (2) of April, 1892, supra.

The liquidator first applies by ex parte summons (as in Form 587) for liberty to Procedure,
examine under sect. 115 the persons specified ; the summons need not be served on
the witnesses. Fricker's case, 13 Eq. 178. Upon the hearing of the summons the
liquidator's written statement of the facts must be produced, but no affidavit is
necessary {Gold Co., 12 Ch. Div. 77 ; Carter's case, 19 W. R. 55) ; and if the circum-
stances justify, the registrar issues the summonses against the witnesses.

It was not usual to draw up an order on such an application, but a summons to
attend, signed by the registrar, was issued in accordance with Fonn 42 of 1890, but
Vaughan "Williams, J., now makes an order almost identical with the prescribed
form of summons. See Form 588.



518



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



Form 687.

Order on
application of
creditor for
private

examination.



Upon tlie applicon of the B. Coy, creditors of the above-named coy,
and hearing the solors for the applicants and for M., the off liqr of the
above-named coy, and uj)on reading the orders dated, &c., and the
afft of Michael Abrahams, filed, &c., It is ordered that the sd B. Coy
be at liberty to summon before the Court the following persons for the
purpose of their being examined respecting the affairs of the sd coy,
that is to say, John T., of &c. ; And it is ordered that the sd B. Coy
do have the conduct of the examination of such witnesses ; and the
question as to how the costs of this order and consequent thereon are
ultimately to be borne and pd is reserved. Mendip Paper Mills Co.,
Bacon, V.-C, 25th March, 1886.



Form 588.

Order for
persons to
attend at
chambers to
be examined.
Form 42 of
1890,



Order to
attend.



To -whom

examination

entrusted.



Persons
entitled to
attend.



Counsel.



{Title.)

A. B., of &c., are hereby severally summoned to attend at \_state place

of examination], in the county of , on the day of , 189 — ,

at of the clock in the noon, to be examined on the part of the

off recr [or the liqr], for the purpose of proceedings directed by the
Court to be taken in the above matter. [And the sd A. B. is hereby
required to bring with him and produce, at the time and place afsd, a
certain indre [describe documents], and all other books, papers, deeds,
writings, and other documents in his custody or power in anywise
relating to the above-named coy.]

Dated this day of , 189 — .

This order was taken out by Messrs. C. and D., of , in the

county of , solors for .

Tbis foim follows Form 54 of 1862, with a variation. See note to Form 586a.

For summons directing person to attend ' ' before Mr. Registrar , at the

office of tbe registrar, &c., to be examined on the part of liquidator under sect. 115
of the Companies Act, 1862," see Taunton, Delmard, Lane % Co., 00156 of 1892.
IstDec. 1892.

The attendance of a witness for examination under sect. 115 of 1862 should be
secured by order as above, and not by subpoena. English Joint Stock Co., 3 Eq. 203 ;
Credit Co. v. Webster, 53 L. T. 420 ; Westmoreland Green, ^r. Co., W. N. (1892) 2 ;
40 W. R. 171. And see note to Form 586a.

Frimd facie, the examination is entrusted to the liquidator, but the Coui't has
jurisdiction to entrust it to a creditor or contributory [Gold Co., ubi supra; Sil/c-
stone and Bodworth Co., 19 Ch. Div. 118) ; or to give such persons liberty to attend
and take part in the examination. Form 587.

Except by special leave, persons attending the proceedings in the winding-up are
not entitled to be present at an examination imder sect. 115. Norwich Equitable, 32
W. R. 965 ; Grci/s Brewery Co., 25 Ch. D. 400.

In Ec London and Lancashire Co., 69 L. T. 362, leave was given to a contributory
to attend and cross-examine a director, but on appeal by such director to the
judge this order was discharged.

The witness is entitled to counsel and to re-oxamination. Cambrian Co., 20 Ch.
D. 370. And his counsel or solicitor may make notes for the pui-pose of re-examina-
tion.



PEIVATE EXAMINATION AND DISCOVERY. 519

It must be borne in mind that the witness's deposition is c%'idence against Deposition
him in subsequent proceedings, civil or criminal. Soe Fut/h and Sharman's case, 13 evidence
Eq. 566 ; Ex parte nail, 19 Ch. Div. 580 ; 9 Moore, P. C. C. (N. S.) 463 ; Beg. v. 'i?'""«t
Coote, L. R. 4 P. C. 599. witness.

In the case last mentioned, Sir R. ColHcr laid down that "the depositions on oath
of a witness legally taken are evidence against him, except so much as consists of
answers to questions to which he has objected, as tending to criminate him, but
which he has been properly compelled to answer." It is said that "the only
matters (upon an examination under sect. 115) as to which the witness can refuse
to answer are matters in which he may incriminate himself and matters involving
professional confidence." SUlsione ami Dodstvorth Co., 19 Ch. Div. 121. But if the
rule laid down by Sir R. CoUier be good law, it seems difficult to see why the witness
should not be compelled to answer even as regards self -incriminating matters. Even
where a witness objects to answer, on the groimd that his answer may criminate
him, the judge is bound to insist on an answer, unless he is satisfied that the answer
will place him in peril. Ex parte Reynolds, 20 Ch. Div. 294 ; Taylor on Evidence,
s. 1457.

But notice of intention to read the depositions oiight to be given : Fugh and Notice to
Sharman^s case, 13 Eq. 566 ; Ex parte Hall, 19 C. D. 580. As to cross-examination read,
of deponent on his own and other people's depositions, see North Australian Co. v.
Goldsborough S; Co., (1893) 2 Ch. 381.

Where a person summoned to attend under sect. 115 makes default, the Court Default in
can order his apprehension (see Form 598) ; or may order him to attend and pay appearance,
the costs. Troiver and Lawsoti's case, 14 Eq. 8 ; Lisbon Steam Traniivay, 2 C. Div.
575; Silkstone and Bodsworth Co. {Whitwortli's' case), 50 L. J. Ch. 752; affirmed in
30 W. R. 33. See those cases for form of notice of motion ; and R. 17 of 1890 (set
out in Chap. XLIV.), as to committal of a contumacious witness, seems to apply
to a pi-ivate examination.

R. 16 of 1890, as to employing a shorthand writer to take notes, applies to a private Shorthand
examination. See Chap. XLIV. And before the registrar such examinations are notes,
usually taken by a shorthand writer.



Where the matter is to go before an examiner, it is usual to make a note in the Form 589.

margin of the summons thus : . ;

Notice to

Take notice that on the return of this summons it will be forthwith examiner of
T T . -n ii • i 1 • i- adjournment.

adjourned to , -bsq., the examiner to whom your examination •■

stands referred, before whom you wiU be immediately required to

attend, in order that your examination may be proceeded with.

And on the retiu-n of the summons the junior clerk indorses it, " [Date.] [

& Co.] Adjourned to , Esq.," and seals the indorsement with the seal of the

Chambers.



Upon the applicon of the off liqr by summons, dated 16th June, 1884, Form 590.
and upon reading the statement of the off liqr, dated 10th June, 1884, jjeference to
and upon hearing the solors for the applicant. Order that it be referred exa m iner
to the examiner of this Ct in rotation to take the examination of W. ^^^.^^is

and N., of , and S., of , under sect. 115 of the Cos Act, 1862.

General Horticultural Co., Chitty, J., 24th June, 1884. A. 929. [And



520



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



it is ordered tliat the applicant's costs of and incident to tHs applicon
and such examination be costs in the winding-up. Civil Service and
General Store, Limtd, Chitty, J., 30th March, 1886.]



Form 591.

Another .



Upon motion hy counsel for the liqrs, &c., Order that the sd liqrs
he at hberty to issue a summons under sect. 115 of the Cos Act, 1862,
for the purpose of examining the following persons concerning the
trade dealings, estate and effects of the coy; that is to say. A., B. and
C, &c. Re Explosives Co., Kay, J., 13th May, 1886. A. 722.



Form 592.

Eeference of
all witnesses
to same
examiner.



Upon the applicon of P. and others, the liqrs of the above coy, by
summons dated 22nd March, 1884, and upon hearing the solors for the
applicants, and upon reading the afit of the sd P. and E., two of the
liqrs, filed, &c., Order that it be referred to the proper examiner of
the Ct in rotation to take the examination of all witnesses summoned
at the instance of the aj^plicants in this matter, either under the 15th
section of the Cos Act, 1862, or otherwise, and that the examination of
all such witnesses be taken before the same examiner. Metropolitan
Brush Electric, Kay, J., 13th May, 1884. B. 476.



Appointment
of special
examiner.



Form 593. Upon the applicon of the off liqr, and upon hearing the solors for

the applicants, upon reading the afft of "W., Order that W., of ,

be appointed special examiner for the purpose of taking the examina-
tion of the following persons ; namely. A., B., C. and D., under the
provisions of the 115th section of the Cos Act, 1862, being resply persons
cax^able of giving information concerning the trade dealings, estate
and effects of the sd coy. And order that the sd depositions, authen-
ticated by the signature of the sd examiner when taken, be transmitted
by him to the Central Office of the Supreme Ct, there to be filed.
Grey's Brewery Co., Chitty, J., 25th July, 1883. A. 1236.



The examinations are generally taken before the registrar.
A special examiner under sect. 115 is now rarely appointed.
See also order inTrivate Investors' Association, P. 036 of 1892.
1892.
As to filing the deposition, see supra, p. 22.



Reg. 2nd Dec.



Form 594. Upon tho applicon of P. and W., the [off] liqrs of the coy, &c.,
Order that J. bo appointed special examiner to tako the examination,
cross-examination and re-examination of the sd B. and others, in refer-
ence to tho affairs, property and effects of tho above-named coy, and
tho otlicr cos amalgamated therewith. And order, by consent, such
examination, cross-examination and re -examination be taken down by



AiiothfT form
providing for
Bhorthand
notes.



PRIVATE EXAMINATION AND DISCOVERY. 521

a sliorthand writer, and when taken, Order tliat the depositions, au-
thenticated by the signature of the sd examiner, be transmitted by him
to the [Eecord and Writ Clerks' Office of the Chancery Division of
this Ct], there to bo filed. And order that such depositions may be
read in evidence in the course of any proceedings taken in the above
matters with the authority of the judge to whose Ct the same may for
the time being be attached. Cape Breton Co.^ Malins, V.-C, 11th May,
1878. A. 849.

Occasionally a shorthand ■writer was employed in such cases even under the old
practice. Under the present practice, the appointment of a shorthand wi'itcr in a
private examination seems clearly authorized by R. 16 of 1890, set out in Chap. XLV.
For form of appointment of shorthand writer to take private examination, see
Tatmton, Delmard, Lane ^- Co., 00156 of 1892. When the shorthand notes have been
transcribed, they must be read over to the witness, and he must be called on to sign
the dej^osition. Sir John Moore Mining Co., W. N. (1878) 87. If he refuses, an
order to file without his signature can be obtained. Barker v. Chapman, 30 S. J. 05G.

{^Full Title and reference to record.) Form 594a.

At the examination (under sect. 115 of the Cos Act, 1862) of A. B., Registrar's
held before me this 1st day of March, 1897, a formal question was cTurt of
allowed by me to be put to each of them the sd A. B., &c. The sd wit- witnesses'
nesses, by the advice of their respective counsel, refused to answer the
sd question. I explained to each of the sd witnesses that his refusal
was in disobedience to my directions. The ground for such refusals
was stated to be the fact that the coy proposed to appeal to the House
of Lords against the order to wind up the coy, and that the sd witnesses
desired that the examination should be postponed pending such appeal.
Applicon was made to me to permit such postponement, but I refused

to do so. I named day the \_date'], at 10.30 a.m. as the time, and

the Royal Courts of Justice as the place, for such refusals to answer to
be reported to the Hon. Mr. Justice Vaughan Williams. Dated this
1st day of March, 1897, H. J. Hood, Eegr. Thomas Edward Brinsmead
and Sons (00200 of 1896).

This report is made under Rule 17 of 1890 (set out in Chap. XLIV.), the registrar
evidently taking the view stated in former editions of this work, that the rule
applies to private as well as to public examinations.

Upon the applicon of the off liqr, and upon hearing the solors for Form 595.
the applicant and M., C. and W., and upon reading, &c.. Order that ^ ~, ~
the said M., C. and W., witnesses on behalf of the sd off liqr, do attend to attend.
to be examined viva voce on oath or affirmation before the j^roper
examiner as to the custody of the books and papers of the above-named
coy, and generally as to the affairs thereof, the solor for the sd off liqr

giving to the sd and and three days' notice in writing

of the time and place when such examination is to take place. And



refusal to
answer.



522



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



order that the examination so taken be filed in the Central Office of tlio
Supreme Ct of Judicature, and that an office copy or office copies thof
may be read and given in evidence on the hearing of any applicon
in the above matter, saving all just exceptions. Meat Storage Co.,
Pearson, J., 22nd April, 1884. B. 528.



Form 596.

Order on
examinee to
attend at his
own expense.



Upon motion this day made unto this Ct by counsel for C,
the liqr of the C. Coy, Limtd, and upon hearing X. in. person,
and upon reading, &c., this Ct doth order that the sd X. do

attend before , esquire, of, &c., the examiner duly appointed

by the sd order dated the 23rd Jan. 1885, for the jourpose of being
examined as a witness in this matter at such time and place as the
sd examiner shall appoint, notice being duly given to him of the
day fixed for such examination ; And it is ordered that the costs of
such examination for one day only be borne by the sd X. ; And it is
ordered that the sd X. do pay to the sd Gr., the liqr of the sd coy, the
costs of this applicon (such costs to be taxed by the taxing-master, but
the payment of such costs is not to be enforced against the sd X.
personally). Chile Gold Mining Co., Kay, J., 21st May, 1885.

The order sometimes goes on to order the witness to answer a particular question,
•which he has refused to answer. But in such a case, the witness has a right of
appeal. Korth Australian Territory Co., 45 Ch. Div. 87.

R. 17 of 1890, set out in Chap. XLIV., applies to a private examination. On a
refusal to answer, it requires a report to be made to the judge, for form of which
see Form 594a.



take part in
examination



Form 597. Upon the applicon of H. and others, contributories of the above
TT; "; \ cov, for leave to issue a summons or summonses under sect. 115 of the

Liberty to *" . . „ , .

contributories Cos Act, 1862, for the examination of such witnesses or persons as the
to attend and applicants may be advised, for the purpose of giving information as
to the trade dealings, estate, and effects of the sd coy, and that such
witnesses or persons might be required to produce any books,
documents, writings, or other documents in their custody or power
relating to the sd coy, upon hearing solor, &c. ; and the sd M., as
such off liqr, electing to take proceedings for such examination,
Order that the applicants be at liberty to attend, at their own expense,
upon the examination of any person or persons examined by or on
behalf of the sd M., as such off liqr, before the special examiner, and
to examine and cross-examine such witnesses or persons as they may
bo advised. And order that the sd M. do give notice to the applicants,
or their solors, of all such examinations. Silks tone and Dodsworth Co.,
Fry, J., 3rd Juue, 1881. B. 974. 19 Ch. Div. 118.



Form 598.

Order to



Upon tho applicon of K., tho off liqr of coy, and upon hearing
couubol for tho sd applicant, and upon reading tho afft, &c., and it



PRIVATE EXAMINATION AND DISCOVERY.



523



thby having been made to ajix^ear to the satisfaction of the Ct tliat apprehend

H., now or late of , did without good cause fail, having no lawful examination.

impediment made known to the Ct at the time of its sitting, and
allowed by it, to attend in pursuance of a summons, dated 17th Jan,
1884, and duly served upon him for that purpose, It is ordered that
the tipstaff attending this Ct, or other officer appointed for that
purpose, do apprehend and bring to the bar of this Ct the sd H.
for the purpose of being examined, according to the requirements
thof. Haven Gold Co., Bacon, V.-C, 30th May, 1884. A. 848.

Filing Depositions and Inspection.

As to this, see supra, p. 22. If the depositions are required to be used at a
criminal trial, the proper course is to subpoena the registrar to produce them, and
no order under R. 1 of Nov. 1895, seems necessary.

Report.

As soon as possible after an examination has been held a report thereon is made
by the Official Receiver to the Inspector- General in Companies Liquidation.

Examination of Persons in Scotland.

Sect. 127 of 1862 empowers the Court to dii-cct the examination in Scotland of
any person for the time being in Scotland, whether a contributory of the company
or not, in regard to the estate, dealings, or affairs of any company in the course of
being wound up, or in regard to the estate, dealings, or affairs of any person being
a contributory of the company, so far as the company may be interested therein by
reason of his being such contributory, and contains provisions as to the mode in
which the examination is to be effected.

For order, see Contract Corporation, M. R., 20th Nov. 1877. A. 1131. Supra,
Form 129.



524



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



CHAPTER XLIY.



PUBLIC EXAMINATION.



ProTisions of
Act of 1890.



Preliminary
report of offi-
cial receiver.



Further
report.



Order for
examination.



Status of offi-
cial receiver,
liquidator, &c.



Court may put
questioDH.

Procedure at
examination.



Costs.
Depositions.



Sect. 8 of 1890. — (1) "Where the Court has made an order for ^vinding-up a
company, the official receiver shall, as soon as practicable after receipt of the state-
ment of the company's affairs, submit a preliminary report to the Court —

(a) as to the amotmt of capital issued, subscribed, and paid up, and the

estimated amount of assets and liabilities ; and

(b) if the company has failed, as to the causes of the failure ; and

(c) whether in his opinion further inquiry is desii'able as to any matter relating

to the promotion, formation, or failure of the company, or the conduct of
the business thereof.

(2) The official receiver may also, if he thinks fit, make a further report, or



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 69 of 134)