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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Lincoln's Inn Fields, London, W.C., notice whereof is hereunto annexed, produce at
all books, letters, papers, copies of letters, and other writings, deeds, public
or documents in your custody, possession, or power containing any examination,
entry, memorandum, or minute in any way concerning the promotion,
formation, or conduct of the business of the above-named coy, or the
issue of the shares thof, or any agreement or copy of agreement or
arrangement entered into by or between you and any other persons
relating thereto or to the issue of the shares.



Copy of Eeport.

Sect. 8 (7) of 1890, supra, ^vhicli provides that the person examined shaU at his
own cost, prior to such examination, be furnished with a copy of the official re-
ceiver's report, only means that the person to be examined is to have a copy of the
report if he asks for it. Great Kruger Co., (1892) 3 Ch. 312.

As to office copies, see R. 12 of 1892.

As to inspection of proceedings filed, see R. 32 of April, 1892, which is not
affected by R. 1 of November, 1895.



{Title.) Form 606.

Take notice that, by an order dated the day of , 189 — , Notice of

made by the Court of ■, upon the applicon of the off recr, it i^ation for

was ordered that , , do attend to be publicly examined before local paper.

[one of the registrars in bankruptcy of the High Court on a day

to be appointed by the Court for that purpose, and that the public

M M 2



532



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

-] at-



examination will be held before Mr. Eegistrar

the clay of , 189 — , at o'clock in the



on



-noon.



Dated this



day of ■



189-



A. B., Off Eecr. \_A(ldress.']



As to filing memorandum of the advertisement, see Form 16 and notes.



Form 607.

Notice to
creditor and
contributory
of public
examination.



{Title.)

Notice is hereby given, that the public examination of , has

been fixed for the day of , 189 — , at o'clock in the

noon, before . Dated this day of , 189 — . A. B.,

Off Eecr [and Liqr], \_Ad(lress.']

As to the above notice, see R. 75 of 1890, supra.



Form 607 a.

Notice to
Board of
Trade of Sup-
plemental
Report.



{Title.)

The Off Eecr of Cos informs the Board of Trade that the follow-
ing supplemental report to the Court under sect. 8 of the Cos Wind-
ing-up Act, 1890, was made by him on the day of , 189 — ,

viz., , and that on the day of , 189 — , the Court fixed the

day of , 189 — , for the public examination of the following



persons :



Dated this



day of



189-



X. Y., Off Eecr.



Form 608.

Notice (for
Gazette) of
day appointed
for public
examination.
Form 86 of
1890.



This is one of the forms supplied by the Board of Trade for use by
official receivers. In practice it is headed, "The Cos Acts, 1862 to

1890. Notice for London Grazette. (3) Notice of day appointed for
public examination." Then follow the eight columns in Part 3 of
Form 15, supra. Below is the signature of the official receiver and
the date. The notice is addressed to "The Inspector- General in Cos
Liquidation, Board of Trade, 4, Whitehall Yard, London, S.W."

This form was substituted for the original Form 86 by B. T. Order, 13th Feb.

1891. See fui'ther, and as to filing memorandum of gazetting, Form 16 and
notes.



Form 609. Upon motion byway of appeal this day made unto this Ct by counsel
Order on ^^^ ^^^^ appellant, the off recr, from the order dated the 15th Jidy, 1892,

appeal (re- made by Mr. Justice in the abovo-mentd matters, and upon

bolowffor ^^ reading the sd order, this Ct doth order that the sd order, dated 15th
public July, 1 892, be discharged ; And it is ordered that the several persons

whose names and addresses are set forth in tlio schedule hereto do
attend before tlie judge on a day to be named for the purj^ose, and be
publicly examined as to the promotion and formation of the above-
named coy, and as to the conduct of the business of the sd coy, and as



examination.



PUBLIC EXAMINATION. '533

to their conduct and dealings as officers of the coy or otherwise.

Bertram Luipaards Vlei Gold Co., Ct. of Ap., 3rd Aug. 1892. A. 1273.

\^Schedide stating names and addresses.^

A person ordered to be examined may move to discharge tlie order on the ground
that it was made without jurisdiction, or was irregular ; and may appeal to the
Court of Appeal from a refusal to discharge the order {Great Eruger Co., uli sup.) ;
and the official receiver may appeal from a refusal to order a public examination
to the Court of Appeal {Trust and Investment Corporation, and Bertram Luipaards
Co., ubi sup.), and to the House of Lords. Ex parte Barnes, (188G) A. C. 146. And
see New Travellers'' Chambers, (1895) 1 Ch. 395, supra.

Upon motion on the 7th day of July, 1892, and this day made unto Form 610.
this Ct hy counsel for F. S. B., of &c., byway of appeal from the order ~
dated the 30th of June, 1892, refusing to discharge so much of the appeal dis-
order dated the 11th of April, 1892, as directed the sd F. S. B. to be charging
publicly examined as to the promotion or formation of the sd coy, and public
as to the conduct of the business of the sd coy, and as to his conduct examination.
and dealings as a director or officer of the sd coy or otherwise, and upon
hearing counsel for the o:ff recr, and upon reading the sd orders, this
Ct doth reverse the sd order dated the 30th of June, 1892, and doth
discharge so much of the sd order dated the 30th of June, 1892, as
directed the sd F. S. B. to attend and be pubKcly examined as to the
promotion or formation of the sd coy, and as to the conduct of the
business of the sd coy, and as to his conduct or dealings as a director
or officer of the sd coy or otherwise ; And it is ordered that the off recr
do pay to the sd F. S. B. his costs occasioned by this aj)peal, including
therein the costs of both the sd orders, such costs to be taxed by the
taxing master. Great Kruger Co., (1891) G. 0110, Ct. of Ap., 8th July,
1892. A. 1045.

{Title, ^'c.)

The off recr, pursuant to sect. 8 of the Cos (Winding-up) Act, 1890, Form 611.

and in addition to his report to the Ct dated the day of , Supplemental

hby fui-ther reports to the Ct as ioYlowB:—\_State facts']. The off further
recr is of opinion that the putting forward of A. as the owner and examination
vendor of the business, and the concealment of the fact that B. was pf persons not
the real owner and vendor, and the secret arrangements for sharing ^^^ order.
the proceeds of sale between A. and B. and the directors of the coy,
constituted a fraud in the promotion of the coy committed, amongst
others, by the persons named in the schedule.

Schedule as above.

{Title.) Form 612.

Before



Upon the applicon of the off recr the Ct hby appoints of of^s^orthand

— , in the county of , to take the examination of at his writer to take



634



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



examination, putlic examination tliis day pursuant to R. 16 of the Cos Winding-up
Form of -r, -, , „„ „

1890. liules, 1890.



Dated this



day of



-, 189—.



Form 613.

Declaration
of shorthand
"writer.
Form 6 of
1890.



Before

, of —

appointed by this



I,



{Title.)



the



shorthand writer
examination of , do



, in the county of —
Ct to take down the
solemnly and sincerely declare that I will truly and faithfully take

down the questions and answers put and given by the sd in this

matter, and will deliver true and faithful transcripts thof as the Ct
may direct.

Dated this day of , 189 — .

[Declared before me at the time and place above mentioned.]



Order for
warrant to
arrest person
failing- to
attend public
examination.



Form 614. Upon the applicon of the off recr, the prov liqr of the above-named
coy, by summons dated the 9th June, 1892, and upon hearing the sd
applicant, and it appearing that by an order dated the 3rd March,
1892, It was ordered that the public examination of E., of &c., who
by an order dated the 16th Peb. 1892, was directed to attend before a
registrar in bankruptcy of the High Ct to be publicly examined,
should be held at the Bankruptcy Buildings, 34, Lincoln's Inn Fields,
in the county of London, on Monday, the 28th March, 1892, and it
was ordered that the sd E. should attend at the time and place above
mentd ; and it appearing that the sd off recr caused the sd order dated
the 3rd March, 1892, to be served on the sd E. by sending a copy thof
on the 21st March, 1892, in a registered letter to the usual or last-
known addi'ess of the sd E., and that the sd public examination was
duly held at the time and place afsd, but that the sd E. failed to
attend thereat, nor was any good cause shown by him for such failure,
all which appears from an afft of W., the assistant off recr, filed the
10th Juno, 1892, and an afft of D., filed the 17th June, 1892, and upon
reading the sd affts, It is ordered that a warrant do issue for the ai'rest
of the sd E. Groomhridge Sf Sotis, Chitty, J., 27th June, 1892. A. 962.
And see National Wholemeal, 8fc. Co., Kokewich, J., 18th Jan., 1892,
No. 41 of 1891.



As to ordering a warrant for arrest, see R. 70 of 1890, supra.
the warrant, see next form and R. 13 of April, 1892.



As to issuiupT, &c.



Form 615. {Title.)

Warrant ToX. Y., tlio ofBcor of this Ct [o?- ichcre icarrant issues from a County

EKairiHt person Ct, to tlio higli l)!iiliff and others the bailiffs of the sd Ct] and aU peace

officers within the jurisdiction of the sd Ct, and to the governor or



PUBLIC EXAMINATION.



535



keepers of the [here insert (he jirison']. Whereas, by evidence taken attend
upon oath, it hath been made to appear to the satisfaction of the Ct form 41 of *

that by order of the Ct dated the day of , 189—, and directed 1890.

to [?iawte of 2)erson required to attend^ he was directed to attend per-
sonally at the S^place of examination^ and be examined before [name or
title of officer before xohom examination is directed to he held], which
order was afterwards, as hath been duly proved on oath, duly served

upon the sd [or that there is probable reason to suspect and

believe that the sd has absconded and gone abroad [or quitted

his place of residence], or is about to go abroad [or quit his place of
residence], with a view of avoiding examination under the Cos

(Winding-up) Act, 1890]. And whereas the sd did without

good cause fail to attend on the sd day of , 189 — , for the

purpose of being examined according to the requirements of the sd

order of this Ct made on the day of , 189 — , directing him

so to attend. These are therefore to require you the sd [or high

bailiff, bailiffs, and others], to take the sd and to deliver him to

the governor or keeper of the above-named prison, and you the sd

governor or keeper to receive the sd , and him safely to keep in

the sd prison until such time as this Ct may order.

Dated this day of , 189—.

As to issuing the warrant out of the Central Office, see E. 13 of April, 1892,
supra.



Upon the applicon by summons, dated, &c., of X., now a prisoner ^Form^blSa.
in her Majesty's gaol at Holloway, in the county of London, who was Order to
arrested pursuant to an order dated, &c., by warrant of this Ct ^^^^^^ on\is
dated, &c., and upon hearing counsel for the applicant, and for B., finding bail,
the off recr and liqr of the above-named coy, and upon reading [order
to wind up, to publicly exa7nine and to arrest, and afft and exhibit]. And
the sd X., by his counsel undertaking to attend before the registrar,

sitting at , on day, the day of , 1896, at o'clock

in the afternoon, and at any adjournments of the examination, for the
purpose of being publicly examined pursuant to the sd order dated, &c.,
It is ordered that upon payment into Ct by the sd X. of 1,000/. as
directed in the lodgment schedule hereto, the governor or keeper of
her Majesty's prison at Holloway do discharge the sd X. out of his
custody under the sd warrant dated, &c.

The Lodgment Schedule is intituled ''Re The Cos Acts, 1862 to 1890, and the

Coy, Limtd.," with reference to file, the ledger credit is "As above, amount

lodged as bail for the appearance of X." Northern Transvaal Gold Mining Co. (00186
of 1892), Vaughau Williams, J., 11th Jan., 189G.



636



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



Form 616.

Report to the
Court where
person
exaroined
refuses to
answer to
satisfaction
of registrar
or oiScer.
Form 39 of
1890.



{Title.)

At the [public] examination of \_e.g. A. B.^ a jierson ordered to attend
for examinatwi] held before me this day of , 189 — , the fol-
lowing question was allowed by me to be put to the sd [ ] : —

Q. \IIere state question.^

The [^tvittiess'] refused to answer the sd question ; (or) the [^wit7iess']
answered the sd question as follows : —

A. [^Here insert answers, if any.~\

I thereupon named the day of , 189 — , at , as

the time and place for such [refusal to] answer to be reported to the
Hon. Mr. Justice \_or his honour Judge ].

Dated this day of , 189 — .

, Registrar {or as the case may be).



See R. 17 supra, and the next form.



Form 617.

Order on
persons re-
fusing to
answer at
public
examination.



(Title.)

Upon motion this day made unto this Ct by counsel for the B. Coy,
Limtd, creditors of the above-named N. Corporation, Limtd, and upon
hearing counsel for A., K., and W., being persons ordered to attend for
public examination, by an order dated the 1 7th Dec. 1891, and upon read-
ing the sd order, an afft of P. filed, «S:c., and the exhibits therein referred
to, &c., ThisCt doth order that the sd A., K., and W., do, at their own
expense, attend before the Eegistrar in Banki-uptcy at the New Bank-
ruptcy Buildings, Carey Street, Lincoln's Inn, in the county of Mid-
dlesex, at 11 o'clock in the forenoon on the day of , 1892, for

the purpose of being further examined, and of answering the questions
which they resply refused to answer, and all other questions which the
sd registrar may allow to be put to them on behalf of the B. Coy,
Limtd ; And it is ordered that the sd A., K., and W. do pay to the B.
Coy, Limtd, their costs of this motion, to be taxed by the taxing-
master. National Debenture and Assets Corporation, Kekewich, J., 13
April, 1892.



Form 618.

Notes of
puVjlic exam-
ination where
a short! land
writer is
appointed.
Form 7 of
1890.



{Title.)

Public examination of [Mr. , an ofiiccr {or as the case mai/ be)

of the above-named coy], before at the Ct , this day of

, 189—.



The above-named



being sworn and examined at the time and



place above mentioned, upon the several questions following being put
and propoimdcd to him, gave the several answers thereto resply follow-
ing each question, tliut is to say : —

A.
These are the notes of the public examination referred to in the



PUBLIC EXAMINATION. 537

memorandum of public examination of , taken before mo this

(lay of , 189—.

The notes are taken down in writing, and read over to or by, and signed by, the
person examined (sect. 8 (7) of 1890), and are afterwards filed with the proceedings.
(R. 77 of 1890.) For notice to complete depositions, see Form C20 a.

They are open to the inspection of any creditor or contributory of the company at
all reasonable times. (Sect. 8, sub-s. 7, of 1890.)

As to the use of the notes of examination against the examinee, and other persons,
in proceedings under sect. 10 of 1890, for misfeasance, &c., see sect. 8 (7) of 1890
{supra), and E. 27 of April, 1892, set out in Chap. XLV.



{Title.) Form 619.



Public examination of S. M., before Mr. Registrar , the officer Transcript of

of the Ct before whom the public examination of certain persons has shorthand
been directed to be held at Bankruptcy Buildings, Carey Street, 10th examination.
Aug. 1892.

Transcript from the shorthand notes of A. B. of :



Mr. appeared as off recr; Mr. , solor, appeared for

Mr. , an alleged contributory ; Mr. (Messrs. and )

appeared for the liqr of the coy.

The above-named S. M. being sworn and examined at the time and
place above mentd upon the several questions following being put and
propounded to him, gave the several answers thereto resply following
each question, that is to say : —

1. — Q. When did you, &c. A. About, &c.

Examined by Mr. L. C.

Examined by Mr. B.

{Title.) Form 620.

Public examination of \_Mr. , ayi officer {or as the case may he) of Notes of

the ahove-7iamed coy\ before at the Ct , this day of , public exam-
ination where



189-



shorthand



The above-named , being sworn and examined at the time and ■writer is not

place above mentd, upon his oath saith as follows : — Foi-m 8 of

A. 1890.

These are the notes of the public examination referred to in the

memorandum of public examination of , taken before me this

day of , 189—.

See notes to Form 618, supra.



{Address, Date, and Title.) Form 620 a.

Sir, — I am desired by the Off Eecr in Cos Liquidation to request Notice to

your attendance here on day the day of , 189 — , at attend to

'' _'' ... complete de-

o'clock for the purpose of reading through and signing the transcript positions.



538



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



of the notes of your public examination held on the day of

189 — . I am, Sir, your obedient servant, X. Y., Assistant Ofi Eecr.



Form 621.

Order of
Coiu't that
examination
is concluded.
Form 40 of
1890.



{Title.)
Whereas the above-named A. B. has duly attended before



-, and



has been publicly examined as to the promotion and formation of the
coy (or, as the case may be).

And whereas is of opinion that the sd A. B. has sufficiently

answered the questions put to him ; it is hereby ordered that the exami-
nation of the sd A. B. is concluded.

Dated this day of , 189 — .

Although this form is prescribed by the rules, it is never used in practice.



Form 622.

Order for
release from
custody of
person
publicly
examined.



{Title.)

Upon the applicon made this 10th day of Aug. 1892, by C. J. S.,
the off recr and liqr of the above-named coy, that E. M., who was
arrested by virtue of E. 76 of the Cos Winding-up Rules, 1890, by
warrant of this Ct dated the 27th day of Oct. 1891, and the sd
E. M. having this day been brought up to be publicly examined in
pursuance of an order of this Ct, and such examination having been
ordered to be concluded, and upon hearing the olf recr in person,
It is ordered that the governor or keeper of Her Majesty's prison at
HoUoway do discharge the sd E. M. out of his custody under the sd
warrant of the sd 27th Oct. 1891. Gold Queen, Limtd, 10th Aug.
1892. Emden, Eeg.



,639



CHAPTER XLV.

MISFEASANCE AND BREACH OF TRUST: SECT. 10 OF THE ACT OF 1890.

Sect. 165, tlie misfeasance section of the Act of 18G2, was repealed by sect. 33
of the Act of 1890 " as to England and Wales," and sect. 10, set out below, of the
Act of 1890 was substituted.

Sect. 10 of 1890. — (1) Where in the course of the winding-up of a company Misfeasance
under the Companies Acts it appears that any person who has taken part in the and breach of
formation or promotion of the company, or any past or present director, manager, trust,
liquidator, or other officer of the company has misapplied or retained or become
liable or accountable for any moneys or property of the company, or been guilty cf
any misfeasance or breach of trust in relation to the company, the Court may, on
the application of the official receiver, or of the liquidator of the company, or of
any creditor or contributory of the company, examine into the conduct of such
promoter, director, manager, liquidator, or other officer of the company, and compel
him to repay any moneys or restore any property so misapplied or retained, or for
which he has become liable or accountable, together with interest after such rate as
the Court thinks just, or to contribute such sums of money to the assets of the
company by way of compensation in resj)ect of such misapplication, retainer, mis-
feasance, or breach of tmst as the Court thinks just.

(2) The provisions of this section shall apply in the winding-up of any company
tmder the Companies Acts, whether the same is being wound up by or subject to
the supervision of the Court, or is being wound up voluntarily, and whether the
winding-up commenced before or after the passing of this Act, and notwith-
standing that the offence is one for which the offender may be criminally
responsible.

The most material diflPerence between sect. 165 of the Act of 1862, and sect. 10 Promoter,
of the Act of 1890 is that the former did not include promoters as such, whereas
the latter expressly includes ' ' any person who has taken part in the formation or
promotion of the company," words which are very wide, and include not only
promoters, but anyone who has taken part in the foi-mation.

And under sect. 165 proceedings could only be taken by " any liquidator or any
creditor or any contributory," whereas under sect. 10 of 1890 the official receiver
may act as well as any liquidator, creditor, or contributory.

And as to the official receiver allowing his name to be used in proceedings, see
Anglo- Sardinian Co., W. N. (1891) 156, and W. N. (1894) 166.

It is now a common practice to obtain directions from the Court as to whether
proceedings should be taken under the section.

E. 78 of 1890. — An application \mder sect. 10 of the Companies (Winding-up) How applica-
Act, 1890, shall in any Court other than the High Court be made by motion to the tion made.
Court. In the High Coui-t the application shall be made in accordance with the
practice heretofore observed with reference to applications under sect. 165 of the



540



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



Report of offi-
cial receiver.



Copy affi-
davit.



Evidence of
depositions at
public exa-
mination.



How far
admiHwiblo
again«t third
porHon-s.



Companies Act, 1862 [i.e., by summons]. Where the application is made by the
official receiver or liquidator, he may make a report to the Court stating any facts
and information on which he proceeds which are verified by affidavit, or derived
from sworn evidence in the matter. Where the application is made by any other
person it shall be supported by affidavit.

The report, except so far as it is supported by affidavits or depositions, is not
evidence against the respondents.

As to the costs of the report, see Anglo- Austrian, ^-c. Union, (1894) 2 Ch. 622.

R. 79 of 1890. — Where the apx^lication is made by motion, notice of the intended
motion shall be served on every person against whom an order is sought, not less
than eight days before the day named in the notice for hearing the motion. A copy
of every report and affidavit intended to be used in support of the motion shall be
served on every person to whom notice of motion is given not less than four days
before the hearing of the motion.

E. 27 of April, 1892. — -Where in the course of the winding-up of a company an
order has been made for the public examination of persons named in the order pur-
suant to sect. 8 of the Companies (Winding-up) Act, 1890, and it appears from the
examination that the persons examined, or some of them, have misapplied, or
retained, or become liable, or accountable for moneys or property of the company,
or been guilty of misfeasance or breach of trust in relation to the company, then in
any proceedings subsequently instituted under sect. 10 of the said Act, on the
application of the official receiver or liquidator for the purpose of examining into
the conduct of the said persons, or any of them, and compelling repayment or
restoration to the company of any moneys or property, or contribution by way of
compensation to the assets of the company by such persons, or any of them, the
verified notes of the examination of such person who was examined under the order
shall, subject as hereinafter mentioned, and to any order or directions of the Court
as to the manner and extent in and to which the notes shall be used, and subject to
all just exceptions to the admissibility in evidence against any particular person or
persons of any of the statements contained in the notes of the examinations, be
admissible in evidence against any of the persons against whom the applieation is made
xvho, under sect. 8 of the said Act and the order for the public examination, was or had
the opportunity of being present at and talcing part in the examination. Provided that
before any such notes of a public examination shall be used on any such application,



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 71 of 134)