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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As to the title of proceedings, how applications are made, &c., see Chap. II. Title of pro-

As to advertisement of petitions, see Chap. IV. ceedings, ixc.

"Judge " and " registrar " are defined by r. 2.

R. 54 of 1890 provides that the official receiver or liquidator shall send " to the
registrar a copy, certified by him, of every resolution of a meeting of creditors or
contributories . ' '

As to the official receivers in County Courts, see Board of Trade Order of ICth Official
September, 1892, in Appendix B. And see also Appendix D. receiver.

R. 92 (2) of 1890 provides that notice of a call and the intended meeting of the Contribu-
committee of inspection shall, besides being advertised in a London newspaper, be tories.
advertised "where the winding-up is not in the High Court, also in a newspaper '
circulating in the district of the Court in which the winding-up is being con-
ducted."



608



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



Transfers.



Public
examination.



Misfeasance.



Review of

taxation.
Companies
liquidation
account.



As to transfer of proceedings to and from County Courts, see Chap. XLI. And
see r. 15 of 1890 as to transfers on a Court being excluded from jurisdiction.

Proceedings in the winding-up of industrial and provident societies pending in a
County Court on the 12th September, 1893, may be transferred to the High Court.
See 56 & 57 Vict. c. 39, s. 59. And under s. 58 of the same Act other proceedings
in the winding-up of these societies may be transfeiTed.

As to the transfer of the proceedings in the winding-up of building societies,
see s. 8 of the Building Societies Act, 1894.

In sect. 8 (as to public examination) "the Court" referred to in the first seven
sub-sections includes the "County Court" which is winding-up the company.
Sub-sect. 8 empowers "the Court" — that is the Court in which the liquidation
is pending, whether the High Court or otherwise — to direct the examination to be
held before " any judge of County Courts," who is invested vdth the powers of the
Court which sends him the examination.

Sect. 10 of 1890 confers a new jurisdiction on County Courts — not only in com-
pulsory windings-up, but in voluntary liquidations, whether under the supervision
of the Court or not — by constituting them the tribunals to assess damages against
delinquent directors, officers, and promoters of companies.

Rr. 78 and 79 of 1890 are as follows :—

78. — An application under sect. 10 of the Companies ("Winding-up) Act, 1890,
shall in any Court other than the High Court be made by motion to the Court.

79. — [Notice of such a motion] "shall be served on every person against
whom an order is sought, not less than eif/ht days before the day named in the
notice for hearing the motion," and that " 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."

As to review of registrar's taxation, see r. 30 of 1890.

As to applications by Board of Trade under s. 15 of 1890, see Chap. XXIV. and
r. 130a (April, 1891).

Special Case for High Court.

As to companies, provision is made for obtaining the decision of the High Court,
Sect. 3 (3) of 1890. — If any question arises in any winding-up proceeding in a
County Court or in the Stannaries Court [the jurisdiction of which is now transferred
to the Cornwall County Court] which all the parties to the proceeding, or which one
of them and the judge of the Court, may desii"e to have determined in the first
instance in the High Court, the judge shall state the facts in the form of a special
case for the opinion of the High Court, and thereupon the special case and the pro-
ceedings, or such of them as may be requii'ed, shall be transmitted to the High
Court for the purposes of the determination. And see Chap. XLIX.

As to stating a special case, in the case of an industrial society, see 56 & 57 Vict.
c. 39, s. 58 ; in the case of a building society, Fortsea Island BtiUding Society, (1895)
3 Ch. 205 ; Building Societies Act, 1894, s. 8.



Act of 1896.

Abolition of

St;innarie8

Court.



Stannaries Jurisdiction.

stannaries Court (Abolition) Act, 1896 (59 & 60 Vict. c. 45), s. 1.— (1.) On the
coiniiieiicomeiit of Ihi.s Act [viz., Lst Jaiiuniy, 1S97: see sect. 6], the Court of the
Vico-Wardun of tlio Stannaries sliall cease to exist, except for the purpose of
continuing and concluding proceedings pending in that Court at that date, and
us from that date all jurisdiction and powers of the said Court and its officers shall,



COUNTY COURTS. 009

except as aforesaid, be transferred to and vested in such of the County Courts as
the Lord Chancellor may by order direct, and be exercised subject to and in
accordance "with rules of Court for regulating the procedure in County Courts.
(2.) Provision may be made by order of the Lord Chancellor [infer alia) —

(b) For transferring to a County Court any proceedings pending in the said

Court at the commencement of this Act ;

(c) For determining the place of sitting for the exercise of any jurisdiction

transferred by this Act.

And see sect. 3 as to references in unrepealed enactments as to mines subject to Old Acts as

the jurisdiction of the Vice-Warden. *'-• "'"les.

By an order of the Lord Chancellor, dated IGth December, 1896, the County Order of

Courts of Cornwall are to exercise the jurisdiction and powers of the Stannaries -December,

. . 1896

Court ; the judge is generally to sit at Trui-o ; and the jurisdiction and powers as

to winding-up, and in cases where the subject-matter is not within the limits of t ,1 •

the County Court jurisdiction, are to be exercised by the Coui't having bankruptcy Cornwall

jurisdiction in Cornwall. County

By the County Court (Stannaries Jurisdiction) Rules, 1897, a number of joro- 'courts.

visions are made as to the practice. Rules oi

. . 1897.

By r. 6, "Proceedings for the winding-up of companies shall be regulated by, and

costs in such proceedings shall be taxed under, the statutory provisions, rules and.

scales of costs for the time being in force for the winding-up of companies in

County Courts." (And compare r. 25.)

By r. 10, " The records and papers in any proceeding under the Stannaries Juris-
diction shall be intituled with the name of the Coiu't, and marked with the words
' Stannaries Jurisdiction.' "

The previous statutes relating to the Stannaries Court will be found in Chitty's Stannaries
Statutes, 5th ed., vol. 7, under the heading " Local Courts (Cornwall and Devon) ;" -^cts.
but some of the sections of these Acts, and certain provisions of the Companies Act,
1862, are repealed by sect. 5 of the Act of 1896. (See the schedule thereto.)



Appeals.

The Act of 1890 does not expressly provide for appeals from orders of a County No provision
Court, although it provides for questions in the County Courts with reference to ^^^. "^P^^l?^
winding-up being brought before the High Court by transfer (see Chap. XLL), and ^ j. iglo
by special case (see Chap. XLIX.).

It is, however, clear that an apijeal lies by virtue of sect. 120 of the County
Courts Act, 1888 (see infra), supplemented, if needs be, by sect. 124 of the Com-
panies Act, 1862. See supra, p. 582.

The appeal is to a Divisional Coui-t, as appears below, and from that Court to the
Court of Appeal, and thence to the House of Lords, subject as below mentioned.

The following are instances of appeals to a Divisional Court entertained by the
Queen's Bench Division in several cases since the Act of 1890, e.(/., in North Wales
Gunpowder Co., (1892) 2 Q. B. 21 ; and Ilklei/ Sotel Co., (1893) 1 Q. B. 248.

The time for appealing from a County Court is still 21 days. See R. S. C.
0. LIX. r. 12, infra.

The Coionty Courts now have jurisdiction under the Act of 1862.

Sect. 45 of Jud. Act, 1873. — All appeals from petty or quarter sessions, from a Judicature
County Court, or from any other inferior Court, which might before the passing of -^•^t> 18 <o.
this Act have been brought to any Court or judge whose jurisdiction is bj - this Act Appeal to
transferred to the High Court of Justice, may be heard and determined by Divi- p ,
sional Courts of the said High Court of Justice, consisting respectively of such of
P. R R



610



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



Judges.



Entering
appeal.



County
Courts Act,
1888.



County
Court judges'
note.



Copy of
judge's note.



Powers of
Appellate
Court.



the judges thereof as may from time to time be assigned for that purpose, pursuant
to the Rules of Court, or (subject to Rules of Court) as may be so assigned accord-
ing to arrangements made for the purpose by the judges of the said High Court.
The determination of such appeals respectively by such Divisional Courts shall be
final unless special leave to appeal from the same to the Court of Appeal shall be
given by the Divisional Court by which any such appeal from an inferior Court
shall have been heard.

Under this section it was held that no appeal lay from a refusal to grant leave
{Eay V. Briggs, 22 Q. B. Div. 343) ; but now if leave to appeal is refused by the
County Court applications for leave can be made to the Court of Appeal under
s. 1 (5) of the Jud. Act, 1894.

An appeal lies from the Court of Appeal to the House of Lords. C'ruiih v. Turner,
4 App. Cas. 221.

Sect. 1 (5) of Jud. Act, 1894. — In all cases where there is a right of appeal to the
High Court from any Court or person, the appeal shall be heard and determined
by a Divisional Court, constituted as may be prescribed by rules of Court ; and the
determination thereof by the Divisional Court shall be final, unless leave to appeal
is given hj that Court to the Court of Appeal.

E. S. C. 1883, Ord. LIX. r. 4.— Every judge of the High Court of Justice for the
time being shall be a judge to hear and determine appeals from inferior Courts,
iinder sect. 45 of the principal Act (Jud. Act, 1873). All such appeals (except
Probate and Admiralty appeals from inferior Courts . . . .) shall be entered in
one list by officers of the Crown Office Department of the Central Office, and shall
be heard by such Divisional Court of the Queen'' s Bench Division as the Lord Chief
Justice shall from time to time direct.

And among the "proceedings and matters" which by R. S. C. 1883, Ord. LIX.
r. 1, "shall continue to be heard and determined before Divisional Courts" are
"appeals under sect. 6 of the County Courts Act, 1875" (38 & 39 Vict. c. 50),
which Act is repealed by sect. 188 of the County Courts Act, 1888 (51 & 52 Vict.
0. 43).

Sects. 120—124 of the County Courts Act, 1888, are as follows:—

Sect. 120. — If any party in any action or matter shall be dissatisfied with the
determination or direction of the judge in point of law or equity, or upon the ad-
mission or rejection of any evidence, the party aggrieved by the judgment, direc-
tion, decision, or order of the judge may appeal from the same to the High Court,
in such manner and subject to such conditions as may be for the time being provided
by the rules of the Supreme Court regulating the procedure on appeals from in-
ferior Courts to the High Com-t At the trial or hearing of any action or

matter, in which there is a right of appeal, the judge, at the request of either
party, shall make a note of any question of law raised at such trial or hearing, and
of the facts in evidence in relation thereto, and of his decision thereon, and of his
decLsion of the action or matter. [And see Ord. LIX. r. 8, infra.']

Sect. 121. — In any action or matter in which there is a right of appeal, and the
judge has at the request of either party made a note of any question of law raised
at such trial or hearing, and of the facts in evidence in relation thereto, and of his
decision thereon, and of his decision of the action or matter, he shall, at the expense
of any person or persons being party or parties in any such action or matter, furnish
a copy of the note so taken at the said trial or hearing, or allow a copy to be taken
of the same, by or on behalf of such person or persons, and he shall sign such copy,
■whether a notice of motion in the matter of the said appeal has been served or not,
and the copy so signed shall bo used and received at the hearing of such appeal.

Sect. 122. — On the hearing of an appeal the High Court shall have power to draw
any inference of fact, and may either order a new trial on such terms as the Court



COUNTY COURTS. Oil

sliall think just, or may order judgment to bo entered for any party, as the case
may be, or may make a final or other order ou such terms as the High Court may
think proper to insure the determination on the merits of the real questions in con-
troversy between the parties. [And sec Oi'd. LIX. r. 7, infra.']

Sect. 123.^ — No appeal shall lie from the decision of the judge if before such Agreement
decision is pronounced the parties shall agree, in writing signed by themselves or ^o^i'^^t
their solicitors or agents, that his decision shall be final, and no such agreement
shall require a stamp.

As to consent on behalf of an infant party, see Bhodcs v. SicUhinhanJc, 22 Q. B.
Div. 577.

Sect. 124. — No judgment or order of any judge, nor any action or matter brought Certiorari, kc.
before him or pending in his Court, shall be removed by appeal, motion, certiorari,
or otherwise, into any other Court whatever, save and except in the manner and
according to provisions in this Act mentioned.

But in winding-up matters this provision must be read subject to the power of
transfer given by sect. 3 of the Act of 1890, and the provision as to stating a special
case.

R. S. C. 1883, Ord. LIX. rr, 7—17, are as follows :— Powers of

7. On any motion by way of appeal from an inferior Court, the Court to which Appellate
any such appeal may be broiight shall have power to draw all inferences of fact

which might have been drawn in the Court below, and to give any judgment and
make any order which ought to have been made. No such motion shall succeed on Misdirection,
the ground merely of misdirection or improper reception or rejection of evidence,
unless in the opinion of the Court substantial wrong or miscarriage has been
thereby occasioned in the Court below. (R. S. C. Oct. 1884, r. 15.)
[And see C. C. Act, 1888, s. 122, supra.']

8. On any motion by way of appeal from an inferior Court, the Court to which Evidence
any such appeal may be brought shall have power, if the notes of the judge of such yhere no
inferior Court are not produced, to hear and determine such appeal upon any other ■* °
evidence or statement of what occurred before such judge which the Coiu't may

deem sufficient. (R. S. C. Oct. 1884, r. 16.)

[As to mode of obtaining judge's notes, see r. 13, Infra, and C. C. Act, 1888,
S3. 120 and 121, supra.

The Court declined to hear an appeal (before the C. C. Act, 1888) upon the
ground that the point of law raised thereby was not taken before the County Court
judge, and that no request was made to him to take a note of the evidence relating
to the point, and that no note of such evidence had in fact been taken. Jonas v.
Long, 3G W. R. 316 ; and see McGrah v. Carlwrl<jht, 23 Q. B. D. 3.

And since the Act, an application to the County Court judge at the trial for a
note on any point of law, and of the facts in evidence relating thereto, and of his
decision thereon, is a condition precedent to any apjieal from such decision being
heard ; and Ord. LIX. r. 8, only applies when application for a note has been
properly made at the trial, and for some reason no note is forthcoming. Cook v.
Gordon, 61 L. J. Q. B. 445.

But if the judge has made no notes of his own he may be asked to certify to
any statement drawn up or agreed to by counsel on both sides as to what took
place. Per Hawkins, J., S. C]

And see Barber v. Burt, (1894) 2 Q. B. 437 ; Baker v. Fraser, 9 T. L. R. 237;
An. Pr. 1897, pp. 1089, 1092.

9. The following rules (10 — 17) of this Order shall apply to appeals to the
Queen's Bench Division from County Courts and other inferior Courts of record of
civil jiu-isdiction in all proceedings other than proceediugs in banla-uptcy.

[Rr. 9 to 17 were added by R. S. C. Dec. 1885. As to their general application

R R 2



612



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



Notice of
appeal.



Service on

official

receiver.



Entering



Time for
appealing



Furnishing
judge's note.



Appeal no
stay.



How appeal
entered.



Extending
time.



to County Court appeals, see Kiyhheaton Local Board v. A'mley, (1892) 2 Q. B. 274 ;
Morgan v. Bowks, (1894) 1 Q. B. 23G.]

10. Every such appeal shall be by notice of motion, and no rule nisi or order to
show cause shall be necessary. The notice of motion shall state the grounds of the
appeal, and whether all or part only of the judgment, order, or finding is com-
plained of. The notice of motion shall be an eight days' notice, and shall be
served on every party directly affected by the appeal entered.

[Appeals generally from County Courts by way of special case were abolished
{Reg. V. Sir Rupert Kettle, 17 Q. B. D. 7'61), except, perhaps, where the right of
appealing by special case was given by statute ( Wilkinson v. Jaggir, 20 Q. B. D.
428) ; but a method of carrying to the High Court by special case is given by
sect. 3 of the Act of 1890. The official receiver must be served, at any rate on an
appeal from a winding-up order. See Ex parte Webber, 24 Q. B. Div. 313 (appeal
from receiving order in bankruptcy.) And where respondent's solicitor is in
business in the country, service on his London agent is insufficient. Powell v.
Thomas, (1891) 1 Q. B. 97.]

11. Every appeal shall be entered at the Crown Office Department of the Central
Office, and the entry shall be made by lodging a copy of the notice.

12. The notice of motion shall be served and the appeal entered within twenty-
one days from the date of the judgment, order, or finding complained of : such
period shall be calculated from the time at which the judgment or order is signed,
entered, or otherwise perfected, or from the time at which the finding or any refusal
is made or given. (R. S. C. Dec. 1885.)

[In the case of a refusal to make a winding-np order, the time seems to run from
the refusal. See Pole v. Bright, (1892) 1 Q. B. 603. And see An. Pr. 1897, p. 1091.]

13. It shall be the duty of the Master of the Crown Office Bcpartmcnt forthwith upon
the entry of the appeal to apply on behalf of the High Court to the judge of the inferior
Court from which the appeal is brought for a copy of the notes of the evidence given, and

for a statement of his judgment or finding on any question of law under appeal. Either
party shall be entitled, upon payment of the proper fee, to obtain from the Crown Office
Department an office copy of such notes and statement.

[But sect. 121 of the County Courts Act, 1888 {supra), repeals this rule so far as
it affects County Court appeals, and it is now the duty of the appellant, as a con-
dition precedent to the appeal being heard, to furnish the Court with a copy of
the notes. McGrah \. Cartwright, 23 Q. B. D. 3 ; and see authorities cited
under r. 8.]

14. The appeal shall not operate as a stay of proceedings under the decision
appealed from unless the inferior Court shall so order, or unless within ten days
after the decision a deposit shall be made of or security given to the satisfaction of
such inferior Court for a sum to be fixed by the said Court, not exceeding the
amount of the money or the value of the pro^Derty affected by the judgment, oi'der
or finding appealed from.

[The application for a stay is made on notice. Briton Medical Association v.
Asher, 35 S. J. 262.]

15. Every appeal from an inferior Court shall be entered in the proper list for
hearing on such days as the Lord Chief Justice of England may direct, and shall
come on to be heard in its order, unless the High Court shall otherwise direct.

16. The High Court shall have power to extend the time for apjjealing, or to
amend the grounds of apjieal, or to make any other order, on such terms as the
Court shall think just, to insure the determination on the merits of the real
quosfions in controversy between the parties.

[Tlie application must be made on notice. Briton Medical Association v. Asher,
Kupra.



COUNTY COURTS. 613

The time has been extended on the ground of a mistake of counsel. Cusack v.
L. i- N. W. Ry. Co., (1891) 1 Q. B. 347.]

17. Subject to these rules, the rules for the time being in force with respect to General
appeals from the High Court to the Court of Appeal shall, so far as practicable, procedure,
apply to and govern appeals from County Courts ... to the High Court.

[As to appeals from the High Court, see R. S. C. 1883, Ord. LYIII., and
Chap. XLIX.

An appeal may be brought vi forma pauperis. Cloncnts v. L. ij- N. W. Rij. Co.
(1894) 2 Q. B. 48-2.

As to appeals when discretion has been exercised on a wrong principle, see
Kirhhcaton Local Board \. Audcij, (1892) 2 Q. B. 274.

As to appeals from decisions which are not final judgments, see Pole v. Bright,
(1892) 1 Q. B. C05.

Security for costs by appellant may be ordered. Swain v. Follows, 18 Q. B. D.
585. But will not generally be, where unconditional leave to appeal has been given
by the County Court judge. Ux parte Society of Apothecaries, 38 W. R. 478.

Costs of appeal in a winding-up cannot be set off against costs of appeal in
bankruptcy, although the appeals are between the same parties. Ex parte Lewis,
Ee Bassctt, (1896) 1 Q. B. 219.]

18. Appeals from inferior Courts shall, in the constrviction of Ord. LIX., include
every appeal, motion, or application to set aside or vary any verdict or judgment in
or of any County Court, or for a new trial in action in the High Court remitted to
such County Court for trial or otherwise.

Where the opinion of the High Court is desired on a winding-up point, the
point should, where practicable, be brought before the winding-up judge of the
High Court by means of a special case (see supra), or a transfer under sect. 3 of
1890, as a Queen's Bench Divisional Court cannot, as a rule, be a satisfactory
tribunal.

By sect. 5 of the Stannaries Act, 1836, there was an appeal from the Vice- Appeal from
Warden to the Lord Warden, acting with the assistance of three or more members Stannaries
of the Judicial Committee of the Privy Council, and his decision was appealable to -l '^ * ^^^ ^°^-
the House of Lords ; and there were further provisions as to apj^eals in 2 & 3 Vict,
c. 58 ; but these provisions were repealed by sects. 26 and 30 of the Stannaries Act,
1855, the former of which gave an a^jpeal to the Lord Warden, assisted by two or
more assessors, who were to be members of the Judicial Committee, or of the Court
of Chancery, or the Superior Courts of Common Law, with an ultimate appeal to
the Judicial Committee of the Privy Council.

Sect. 32 of the Stannaries Act, 1869, required a deposit of 20/. to be made on
appeal to the Lord Warden, in addition to the bond requu-ed by sect. 26 of the Act
of 1855.

By sect. 18 of the Judicature Act, 1873, " all jurisdiction and powers of the Court
of the Lord Warden of the Stannaries, assisted by his assessors, including all juris-
diction and powers of the said Lord Warden when sitting in his capacity of judge,"
were transferred to and vested in the Court of Appeal. Notwithstanding this sec-
tion, it was held that the deposit of 20/. mentioned above must still be given. TFcst
Devon Consols, 38 C. D. 51, 55. So matters remained, until sect. 5 of the Stannaries
Court (Abolition) Act, 1896, repealed the proviso in sect. 124 of the Act of 1862,
save as regards any appeal from the Court of the Vice-Warden "pending at"
the commencement of the Act. But by sect. 1 of the Stannaries Court (Abolition)
Act, 1896, and the Order thereunder [sHpra), the Court of the Vice- Warden has
ceased to exist, and all its jurisdiction and powers have been transferred to the
County Court having bankruptcy jurisdiction in Cornwall, and the procedure in the
County Court is regrdated by the County Court (Stannaries Jurisdiction) Rules,



614



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



1897. But one looks in vain for any express provision as to appeals from County
Courts in matters within the Stannaries jurisdiction. Accordingly, a decision by
the County Court in exercise of that jurisdiction will be appealable like any other



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