Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

. (page 119 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 119 of 152)
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shall, for the purpose of giving jurisdiction to the Court over suits and actions, be
deemed to be a petition for windmg-up the company by the Court.

149. The Court may, in determining whetiier a company is to be wound -up
altogether by the Court or subject to the supervision of the Court, in ihe appcont-
ment of liquidator or liquidators, and in all other matters relating to the wu^ing-
up subject to supervision, have regard to the wishes of the creditors or contributories
as proved to it by any sufficient evidence, and may direct meeting's of the creditors
or contributories to be summoned, held, and regxdated in such manner as the Court
directs, for the purpose of ascertaining their wi^es, and may appoint a person to act
as chairman of any such meeting, and to report the result of such meeting to the
Court : in the case of creditors, regard shall be had to the value of the debts due to
each creditor, and in the case of contributories to the number of votes oonfeored om
each contributory by the reg'nlations of the company.

{As to Scotland J see Companies Aet, 1886, «. 6.)

150. Where any order is made by the Court for a winding-up subject to the
supervision of the Court, the Court may, in such order or in any subsequent order,
appoint any additional liquidator or liquidators ; and any liquidators so appointed
by the Court shall have the same powers, be subject to the same obligations, and
in all respects stand in the same position as if they had been appointed by the
company : the Court may from time to time remove any liquidators so ^pointed
by tne Court, and fill up any vacancy occasioned by such removal, or by death or
resig^nation.

{As to Seotlandf see Companies Act, 1886, s, 5.)

161. Where an order is made for a winding-up subject to the supervision of the
Court, the liquidators appointed to conduct such winding-up may, subject to any
restrictions imposed by the Court, exercise all their powers, without the sanction
or intervention of the Court, in the same manner as if the company were being
wound up altogether voluntuily ; but, save as aforesaid, any order made by tiM
Court for a winding-up subject to the supervision of the Court, shall for all
piu^>06es, including tiie staying of actions, suits, and other proceeding^ be deemed
to be an order of the Court for winding-up the company by the Court, and shall
confer full authority on the Court to make calls, or to enforce calls made by the
liquidators, and to exercise all other powers which it might have exercised if an
Older had been made for winding-up &e company alto^pether by the Court ; and in
the construction of the provisions whereby the Court is empowered to direct any
act or thing to be done to or in favour of the official liquidators, the expression
official liquidators shall be deemed to mean the liquidators conducting the winding-
up subject to the supervision of the Court.



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The Companies Act, 1862. Act of 1862 945

152. Where an order has heen made for the winding-iip of a company snbject to Appointment
the supervision of the Comt, and such order is afterwaros superseded by an order in certain
directing the company to be wound up compulsorily, the Court may in such last- cases of volun-
mentioned order, or in any subsequent order, appoint the voluntary liquidators or tary liquida-
any^ of them, either provisionally or permanently, and either witii or without the tors to office
addition of any other persons, to be official liquidators. of official

liquidators.
Supplemental JProvitionu p. 797

158. Where any company is being wound up by the Court or subject to the IMspomtiona
supervision of the Court, all dispositions of the property, effects, and things in action meacraf-S™?
of the company, and every transfer of shares, or alteration in the status of the the windio^-up
members of the company, made between the commencement of the winding-up and avoided.

the order for winding-up, shall, unless the Court otherwise orders, be void. See Form 351,

154. Where any company is being wound up, all books, accounts, and docu- Ch. XXXII.
ments of the company and ox the liquidators shall, as between the contributories of Xhe books of
the company, be primd faeie evidence of the truth of all matters purporting to be the company
therein recorded. to be evidence.

155. Where any company has been wound up under this Act, and is about to be p^ iq^
dissolved, the books, accounts, and documents of the company and of the liqui- ^' ^ il* 1
dators may be disposed of in the following way ; that is to say, where the company "^JJP.v^*^^*^***^
Jias been wound up by or subject to the supervision of the Court, in such way as *^* dooks,

the Court directs, and where ttie company has been wound up voluntarily, in such aoooi^ts, and
way as the company by an extraordinary resolution directs ; but after the lapse of documents of
five years from the date of such dissolution, no responsibility shall rest on the ^^^ company,
company or the liquidators, or any one to whom the custody of such books, Ch. LI.
accounts, and documents has been committed, by reason that the same or any of
them cannot be made forthcoming to any party or parties claiming to be interested
therein.

156. Where an order has been made for winding-up a company by the Court or InspectioD of
subject to the supervision of the Court, the Court may make such order for the in- booki*.
speotion by the creditors and contributories of the company of its books and papers p. 164

as the Court thinks just, and any books and papers in the possession of the com-
pany may be inspected by creditors or contributories in conformity with the order
of the Court, but not further or otherwise.

^ 157. Any person to whom anything in action belongfing to the company is as- Power of
signed in pursuance of this Act may bring or defend any action or suit relating to assignee to
such thing in action in his own name. sue.

168. In the event of any company being wound up under this Act, all debts Debts of all
payable on a contingency, and all claims against the company, present or future, descripfcions
certain or contingent, ascertained or soundii^ only in damages, shall be admissible to be proved,
to proof against the company, a just estimate being made, so far as is possible, of ^g
the value of all such debts or dauns as may be subject to any contingency or sound ^*
only in damages, or for some other reason do not bear a certain value.
{At to imolvent eompaniet, 9$e Jud, Act, 1875, «. 10.)

159. The liquidators may, with the sanction of the Court, where the company is General
being wound up by the Court or subject to the supervision of the Court, and with scheme of
the sanction of an extraordinary resolution of the company where the company is liquidation
being wound up altogfether voluntarily, pay any classes of creditors in full, or make may be sanc-
such compromise or other arrangement as the Hquidators may deem expedient with tioned.
creditors or persons claiming to be creditors, or persons having or alleging them- p, 040
selves to have any daim, present or future, certain or contingent, ascertained or

sounding only in damages against the company, or whereby the company may be
rendered liable.

{Amended by C, {JF. U.) Act, 1890, t. 12.)

160. The liquidators may, with the sanction of the Court where the company is Power to
being wound up by the Court or subject to the supervision of the Court, and with compromiso.
the sanction oi an extraordinary resolution of the company where the company is ci^, XLVI.
being wound up altog^her voluntarily, compromise all calls and liabilities te calls,

debts, and liabilities capable of resulting in debts, and all claims, whether present
or future, certain or contingent, ascertained or sounding only in damages, subsist-
ing or supposed to subsist between the company and any contributory or alleged
contributory, or other debtor or person apprenending liability to the company, and
all Questions in any way relating to or affecting the assets of the company or the
winding-up of the oompany, upon t^e receipt ot such sums, payable at sudi times,



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946



Appendix A.



Power for
liquidators to
accept shares,
&o. as a con-
sideration for
sale of pro-
perty of
company.
Ft. I. 8th ed.
p. 1280



Mode of

determining

price.



Certain
attachments,
sequestra-
tions, and
executions
to be void.

ch. zxxin.

Fraudulent
preference.
Form 614



and generally upon such terms as may be agreed upon, with power for the ]iq[ai-
dators to take any security for the discharge of such debts or liabilities, and to gire
Complete disdiarges in respect of all or any such calls, debts, or liabilities.
{Amended by 0. (JT, U.) Act, 1890, «. 12.)

161. Where any company is proposed to be or is in the course of being wound
up altogether voluntarily, and the whole or a portion of its business or pn»eriy
is proposed to be transferred or sold to another company, the liquidators m thie
first-mentioned company may,* with the sanction of a special resolution of the com-
pany by whom they were appointed, conferring either a general authority <m the
liquidators, or an authority in respect of any particular arrangement, reoeiTe in
compensation or part compensation for such transfer or sale shares, policies, or
other like interests in such other company, for the purpose of distribution amongst
the members of the company being wound up, or may ent^ into any oth^ arrange-
ment whereby the members of the oompanv being wound up may, in lieu of
receiving cash, shares, policies, or other like interests, or in addition thereto,
participate in the profits of or receive any other benefit from the purchasing com-
pany ; and any sale made or arrangement entered into by the liquidatorB^ in
pursuance of this section shall be binding on the members oi the company being
wound up ; subject to this proviso, that if any member of the company being wound
up who has not voted in favour of the specoal resolution passed by the company
of which he is a member at either of the meeting^ held for j^aasing the same
expresses his dissent from any such special resolution in writmg addressed to
the liquidators or one of them, and left at the registered office A the company
not later than seven days after the date of the meeting at which such special
resolution was passed, su^ dissentient member may require the liquidators to do one
of the following things as the liquidators may prefer ; that is to saj, either to
abstain from carrying such resolution into effect, or to purchase the interest held
by such dissentient member at a price to be determined in manner hereinafter men-
tioned, such purchase-money to be paid before the company is dissolved, and to
be raised by the liquidators in such manner as may be detennined by meoial
resolution : no special resolution shall be deemed invalid for the purpoeea oi this
section by reason that it is passed anteoedentl^ to or concurrently with any resolu-
tion for winding-up the company, or for appointing liquidators ; but if an order be
made within a year for wincUng-up the company by or subject to the supervidon
of the Court, such resolution shall not be of any validity unless it is sanctioned
by the Court.

162. The price to be paid for the purchase of the interest of any dissentient
member may be determined by agreement, but if the parties dispute about the s



Power of
Court to



such dispute shall be settled by arbitration, and for tne purposes of such arbitration
the provisions of ** The Companies Clauses Consolidation Act, 1845,*' with reepeotto
the settlement of disputes by arbitration, shall be incorporated with this Act ; and
in the construction of such provisions this Act shall be deemed to be the special
Act, and * * the company *' shall mean the company that is being wound ap, and any
appointment by the said incorporated provisions directed to be made under the band
of the secretary, or any two of the directors, may be made under the hand of the
liquidator, if only one, or any two or more of the liquidators if more than one.

163. Where any company is being wound up by the Court, or subject to the
supervision of the Court, any attachment, sequestration, distress, or execution put
in force against the estate or effects of the company after the commencement of the
winding-up shall be void to all intents.

164. Any such conveyance, mortgage, delivery of goods, payment, execution, or
other act relating to property as would, if made or done by or against any iiMii-
vidual trader, be deemed; in the event of his bankruptcy, to have been ma^ or
done by way of undue or fraudulent preference of the creditors of such trader, shall,
if made or done by or against any company, be deemed, in the event of sudi com-
pany being wound up under this Act, to have been made or done by way of nndne
or iraudulent preference of the creditors of such company, and shall be invalid
accordingly ; and for the purposes of this section the presentation of a petition for
winding-up a company shall, in the case of a company being wound up by Uie
Court or subject to the supervision of the Court, and a resolution for winding-up
the company shall, in the case of a voluntary winding-up, be deemed to oorreepond
with the act of bankruptcy, in the case of an individual trader ; and any conveyance
or aj^sigmncnt made by any company formed under this Act of all its estate and
effects to trustees for the benefit of all its creditors shall be void to all intents.

165. Where in the course of the tvitiding-up of any company under this Act, it appears
that any past or present director, manayer, ojicial or other liquidator, or any ^eer of



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The Companies Act, 1862. Act of 1862 947



iuch company, has miaappUed or retained in his own hands, or become liable or accountable
for any moneys of the eotnpany, or been yuilty of any misfeasance or breach of trust in damages
relation to the company y the Court may, on the application of any liquidatory or of any against delin-
ereditor or contributory of the company, notwithstanding that the offence is one for which quent direo-
ihe offender is criminally respofisiblCf examine into the conduct of such director, manager, tors and
or other officer, and compel him to repay any moneys so misapplied or retained, or for which officers.
he has become liable or accountable, together with interest after such rate as the Court
thinks Just, or to contribute such sums of mmey to the assets of the company by way of
compensation in respect of such misapplication, retainer, misfeasance, or breach of trust,
as the Court thinks just.

{Repealed as to England and Wales by C. {JF, U.) Jet, 1890, s. 33, andrepUtced
by s. 10.)

166. If any director, officer, or contributory of any company wound up under Penalty on
this Act destroys, mutilaten, alters, or falsines any books, papers, writings, or falsification
securities, or makes or is privy to the making of any false or fniudulent entry in of books,
any register, book of account, or other document belonging to the company with

intent to defraud or deceive any person, every person so offending shall Ibe aeemed
to be guilty of a misdemeanor, and upon being convicted shall bo liable to imprison-
ment for any term not exceeding two years, with or without hard labour.

167. "Where any order is made for winding-up a company by the Court or Prosecution
subject to the supervision of the Court, if it appear in the course of such winding- of delinquent
up that any past or present director, manager, officer, or member of such company directors in
has been guilty of any offence in relation to the company for which ho is criminally the case of
responsible, the Court may, on the application of any person interested in sum winding-up
winding-up, or of its own motion, direct the official liquidators, or the liquidators by Court,
.(as the case may be), to institute and conduct a prosecution or prosecutions for such Form 590
offence, and may order the costs and expenses to be paid out of the assets of the

company.

lo8. Where a company is being wound up altogether voluntarily, if it appear Prosecution
to the liquidators conducting such winding-up that any past or present director, of delinquent
manager, officer, or member of such company has been guilty of any offence in directors, &c.
relation to the company for which he is criminally responsible, it sh^ be lawful in case of
for the liquidators, with the previous sanction oi the Court, to prosecute such voluntary
offender, and all expenses properly incurred by them in such prosecution shall be winding-up.
payable out of the assets of the company in priority to all other liabilities. Form 667

169. If any person, upon any examination upon oath or affirmation authorized -p |. .
under this Act, or in any affidavit, deposition, or solemn affirmation in or about the P^^ltj of
winding-up of any company under this Act, or otherwise in or about any matter P^rj^UT*
arising under this Act, wilfully and corruptly gives false evidence, he shall, upon
conviction, be liable to the penalties of wilful perjury.

Power of Courts to make Rules,

170. [Power of Lord Chanoellor of Great Britain to make rules.]

(Extended by Companies Act, 1867, «. 20 ; but repealed by 8. Z. E. Act, 1881.)

171. In Scotland the Court of Session may make such rules concerning the mode Power of
of winding-up as may be necessaiy by Act of Sederunt ; but, until such rules are Court of
made, the general practice of the Court of Session in suits pending in such Court Session in
shall, so far as the same is applicable, and not inconsistent with this Act, apply to Scotland to
all proceedings for winding-up a company, and official liquidators shall in all make rules,
respects be considered as possessing the same powers as any trustee on a bankrupt

estate.

[Extended by Companies Act, 1867, s, 20.)

172. [Power to make rules in Stannaries Court.]

(Extended by Companies Act, 1867, «. 20 ; but repealed by Stannaries Act,
1896, s. 6.)
178. In Ireland the Lord Chancellor of Ireland may, as reroects the winding-up Power of Lord
of companies in Ireland, with the advice and consent of the Master of the Rolls in Chancellor of
Ireland, exercise the same power of making rules as is by this Act hereinbefore Ireland to
given to tiie Lord Chancellor of Great Britain ; but until such rules are made the make rules,
general practice of the Court of Qiancery in Ireland, including the practice hitherto
in use in Ireland in winding-up companies, shall, so far as the same is applicable
and not inconsistent with this Act, apply to aU proceedings for windmg-up a
oompany.

(Extended by Companies Act, 1867, «. 20.)



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948 Appendix A.



PARTY.

REOisrBATioN Officb.

Gonstitntion 174. The registration of oompanies imder this Act shall be oondaoted as IoIIowb ;
of registration (that is to say,)

office. (1.) The Board of Trade may from time to time appoint such registrars, assistuit

registrars, clerks, and servants as they may think necessary for the regis-
tration of companies nnder this Act, and remove them at pleasnre :

(2.) The Board of Trade may make such regolations as they think fit with respect
to the duties to be performed by any such registrars, assistant registrars,
clerks, and servants as aforesaid :

(3.) The Board of Trade may from time to time determine the places at which
offices for the reg^istration of companies are to be established, so that there
be at all times maintained in each of the three parts of the United Kingdom
at least one such office, and that no company shall be registered except at
an office within that part of the United Kingdom in which by the memo-
randum of association the registered office of the company is declared to be
established ; and the Board may require that the registrar's office of the
Court of the Vice-Warden of the Stannaries shall be one of the offices for
the registration of companies formed for working mines within the juris-
diction of the Court :

(4.) The Board of Trade ma^ from time to time direct a seal or seals to be pre-
pared for the authentication of any documents required for or connected
with the registration of companies :

(6.) Every person may inspect the documents kept bvthe Registrar of Joint Stodic
Companies ; and there shall be paid for such inspection such fees as may
be appointed by the Board of Trade, not exceeding one Hhilling for each
inspection ; and any person may require a certificate of the incorporation
of any company, or a copy or extract of any other document or any part of
any other document to be certified by the registrar ; and there snail be
paid for such certificate of incorporation, certified copy, or extract such fees
as the Board of Trade may appoint, not exceeding five shillings far the
certificate of incorporation, and not exceeding sixpence for eadi folio of
such copy or extract, or in Scotland for each sheet of two hundred words :

(6.) The existing reg^istrar, assistant registrars, derks, and other officers and
servants in the office for the registration of joint stock companies shall,
during the pleasure of the Board of Trade, hold the offices and reoeiye the
salaries hitherto held and received by them, but they shall in the execntkin
of their duties conform to any reg^ulations tiiat may be issued by the Board
of Trade :

(7.) There shall be paid to any registrar, assistant registrar, derk, or sexrant
that may hereafter be em^oyed in the registration of joint stock oom-

Sanies such salary as the Board of Trade may, with the sanction of the
^mmissioners of the Treasury, direct :
(8.) Whenever any act is herein directed to be done to or by the Registrar of
Joint Stock Companies, such act shall until the Board of Trade otherwise
directs, be done m England to or by the existing Registrar of Joint Stodc
Companies, or in his akbeence to or by such person as the Board of Trade
may for the time being authorize; in Scotland to or by the existrng
Registrar of Joint Stock Companies in Scotland ; and in Ireland to or 1^
the existing Assistant Registrar of Joint Stock Companies for Ireland, or
by such person as the Boud of Trade may for the time being authorize in
Scotland or Ireland, in the absence of the registrar ; but in the event of the
Board of Trade altering the constitution of the existing registry office, such
act shall be done to or by such officer or offioers and at sudi place or places
with reference to the local situation of the registered offices of the com-
panies to be registered as the Board of Trade may appoint.

PART VI.

Appuoation of Act to Companies bbqistkbed x7in>EB thb Jonrr Sioox
Companies Acts.

Definition of 175. The expression ** Joint Stock Companies Acts" as used in this Act shaQ
Joint Stock mean *' The Jomt Stock Companies Act, 1856," ** The Joint Stock Companies Acts,



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The Companies Act, 1862. Act of 1862 949

1856, 1857," **The Joint Stock Banking Companies Act, 1857," and <*The Act Companies
to enable Joint Stock Banking Companies to be fonned on the Pnnoiple of Limited Acts.
Liability," or any one or more of so^ Acts, as the case may require ; but shall not
include the Act passed in the eighth year of the reign of her present Majesty,
chapter one hundred and ten, and intituled ** An Act for the Begistration, £icor-
poration, and Regulation of Joint Stock Companies."

176. Subject as hereinafter mentioned, this Act, with the exception of Table A. Application of
in the first Schedule, shall apply to companies formed and reg^istered under the said Act to corn-
Joint Stock Companies Acts, or any of them, in the same manner in the case of a panics formed
limited company as if such company had been formed and registered under this Act under Joint
as a company limited by shares, and in the case of a company other than a limited Stock Com-
company as if such company had been formed and registered as an unlimited com- panies Acts,
pany under this Act, with this qualification, that wherever reference is made p^ ^9
expressly or impliedly to the date of registration, such date shall be deemed to refer ^'

to the date at which such companies were respeotiyely registered under the said
Joint Stock Companies Acts or any of them, and the power of altering regulations
by special resolution given by this Act shall, in the case of any company fonned
and registered under the said Joint Stock Companies Acts or any of them, extend
to altering any provisions contained in the Table marked B. annexed to **■ The Joint
Stock Companies Act, 1856,'* and shall also in the case of an unlimited company



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 119 of 152)