Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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time named in the notice convening such meeting.

Before the Rtiles of 1903 the official receiver's form was indorsed as follows : —
Note. — If space not sufficient ^ let the particulars be annexed^ but
where the particulars are on a separate sheet of paper, the same must be
marked by the person before whom the afft is sworn, thus : —

" In the matter of .

" This is the account marked * A * referred to in the annexed afft of

, sworn before me this day of , 19 — .

" (Siyned) C. D.,

** Commissioner or officer administering oath"

Particulars of Account referred to on other side.
(Credit should be given for Contra Accoimts.)



Dats.



GoirsiDiBATioir.



Amouht.



BiKARKS.

The Voachen (if any) bv which the
Account can be suDstantiated
bhoold be set out here.



Deponent's signature, A. B.
Signature of commissioner or officer administering oath, C. D.

The form of proof was apparently taken from Bankruptcy Form 72, under which
it has been held that where a mortgage debt is collaterally secured by bills of
exchange, a proof on the ooyenant to pay must give particulars of the bills. ^
Bmthm, Sx parte K%dd, 6 Hanson, 227.



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240



WnroiNG-DP BT THE OOUBT. [ChAP. XVTI.



Instmotions
as to proofs.



Prior to 1904, instraotions (to be retained by the creditor) to oreditorB, as to
proofs, were issued bj the official receiyer with each proof refemng to the mlea
applicable, which now appear to be as below mentioned : —

B. 91. Every creditor shall prove his debt. [And see Br. 92 to 95.]

The proof must be in th$ form annexed^ and may be made by the creditor hinuelf or
by some person authorized hy him.

A statement of aooounts showing how the amount of the proof is made up should
be attached.

The proof must set out whether the creditor holds security for any part of his
debt, and the particulars and estimated value of the security, if any.

An affidavit proving a debt may in a winding-up by the Court be sworn before an
official receiver, or assistant official receiver, or any officer of the Board of Trade,
or any clerk of an official receiver duly authorized in writing by the Court or the
Board of Trade in that behalf (B. 96), or before a commissioner to administer oaths,
or before such persons as are mentioned in sect. 128 of the Companies Act, 1862
{set out below).

Every proof of debt must bear a companies {windin^^'Up) stamp of the value of
one shilling. Bankruptcy or postage stamps cannot be accepted.

B. 97. A creditor shall bear the cost of proving his debt, unless the Court other-
wise orders.

B. 103. Where a creditor seeks to prove in respect of a bill of exchange, pro*
missoiy note, or other negotiable instrument or security on which the company is
liable, such bill of exchangee, note, instrument, or security must, subject to any
special order of the Court made to the contrary, be produced to the official receiver,
chairman of a meeting, or liquidator, as the case may be, and be marked by him
before the proof can be admitted either for voting or for any purpose.

Sched. I. — (6.) A person shall not be entitled to vote as a creditor unless he has
duly proved a debt to be due to him from the company, and the proof has been
duly lodged before the time appointed for the meeting.

B. 104. — A proof intended to be used in a winding-up by the Court at the first meeting
o/ creditors, or at an adjournment thereof, shaU be lodged with the qfieial receiver not
later than the time mentioned for that purpose in the notice convening the meeting or
adjourned meeting.



Swearing
prooifo.



Form 168.

(General
proxy.
Form 80
of 1903.



Sect. 128 o/ihe Companies Act, 1862.

128. Any affidavit, affirmation, or declaration required to be sworn or made under
the provisions or for the purposes of this part of this Act may be lawfully sworn or
made in Great Britain or Ireland, or in any colony, island, plantation, or plaoe
under the dominion of Her Majesty in foreign parts, before any Court, judge, or
person lawfully authorized to take and receive affidavits, affirmations, or declara-
tions, or before any of Her Majesty's consuls or vice-consuls in any foreign parts
out of Her Majesty's dominions, and all Courts, judges, justices, commissioners,
and persons acting judicially shall take judicial notice of the seal or stamp or
slg^iature (as the case may be) of any such Court, judgfe, person, consul, or vice-
oonsul attached, appended, or subscribed to any such affidavit, affirmation, or
declaration, or to any other document to be used for the purposes of this part of
this Act.

{Title,)

I [if a firm write ** We" instead of "I,'* and set out the full name of
the firm\ , of , a creditor [or '•contributory"], hby appoint



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FIEST MEETINGS OP CREDITORS AND CONTRIBUTOEIES. 5{4l

[her0 insert either (but not both) '* Mr, , of ," *' a derk, manager,

&o., in my reg^ar employ/' in which oaee the standing of the person
appointed must be clearly set out, or ''the off recr in the above matter ''],
to be ["my" or **our"] general proxy to vote at the meeting of
creditors [or ''oontributories"] to be held in the above matter on

the day of , 19 — , or at any adjoiumment thereof.

Dated this day of , 19—.

Signed [if a Jlrm, sign the firttCs trading title^ and add '' by
A. B., a partner in the said firm." As to signature by
agentf see footnotes 1 and 2.]
Signature of witness . [The signature of the creditor or con-
tributory appointing a proxy must not be attested as witness by
the person nominated as proxy,"]
Address .

NOZBS.

1. The aaihorized ageat of a corporation may fill np Uanks, and dgn for the
corporation, thns : —

* * For the Company.

'' J. S. (duly authorized nnder the seal of the company)."

2. ^e person appointed general proxy mxiBt be either the official receiver or a
person in the regular employ of the creditor [or contributory].



Certificate to he signed by Person other than Creditor [or Con*
tributory"] filling up the above Proxy.

I, , of , being a [here state whether clerk or manager in the

regular employment of the creditor or contributory, or a commissioner
to administer oaths in the Supreme Ct (see Bule 13)], hby certify that
all insertions in the above proxy are in my own handwriting, and

have been made by me at the request of the above-named , and

in his presence, before he attached his signature [or mark] thereto.

Dated this day of , 19—.

Signature, A. B.

The proxy must be lodged with the off recr not later than the time
named for tiiat purpose in the notice convening the meeting at which
it is to be used.

Having regard to the provisions of sect. 16 of the Finance Act, Stamps.
1895 (68 Vict o. 16), proxy pai>ers in relation to cos wotmd up by order
of the Ct under the Act of 1890 are exempt from stamp duty.

Prior to the Bnlee of 1903 extracts from the Companies (Winding-np) Act and Instmotions

Boles, as to proxies, were indorsed by the official receiyer on each form of general ^ ^ proxy

papers*
P. R



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242 WINDING-UP BY THE COURT. [ChAP. XVII.

proxy sent to creditors and oontribntories. The following proTisions seem to be
now appropriate : —

flehed. I. of 1890. — 12. A creditor or a contributory may yote eifber in person or
by proxy.

13. Every instrtiment of proxy shall be in the prescribed form and ihaU U %98mi
by an official receiver, or by the liquidator of the company, and 9verf wrUtm pmri
thereof ikall be in the handwriting of the person giving the proxy ^ or of any manuger or
elerk or othei' person in his regular employtnentf or of a eommissioner to administer oath*
in the Supretne Court of Judicature in England,

14. Q«neral and special forms of proxy shall be sent to the creditors and contri*
bntories with the notice summoning the meeting, and neither the name nor descrip-
tion of the official receiver or of any other person shall be printed or inserted in the
body of any instrument of proxy before it is so sent.

B. 134. — The proxy of a creditor bHnd or incapable of writing may be accepted
if such creditor has attached his sigfnature or mark thereto in the presenoe of a
witness, who shall add to his sig^ture his description and residence; provided
that all insertions in the proxy are in the handwriting of the witness, and such
witness shall have certified at the foot of the proxy that all such insertions have
been made by him at the request of the creditor and in Us presence before he
attached his signature or mark.

8ehed. I. — 16. A creditor or contributory tnay give a general proxy to his
manager or derk, or any other person in his regular employment. In such case the
instrument of proxy shall state the relation in which the person to act thereonder
stands to the creditor or contributory.

19. A creditor or a contributory may appoint the official reoeiyer to act in mannw
prescribed as his general or special proxy.

Bi 132 (8).^No pecBon shall be appointed a general or special pi^oxy i^ 1b a
minor.

Bohed. I. r. 17.— A proxy shall not be used unless it is deposited with the official
receiver before the meeting at which it is to be used.

B. 132 (1). — A proxy intended to be used at the first meeting ot erediton or
oontributories, or an adjournment thereof, shall be lodged with the official
receiver not later than the time mentioned for that purpose in the notice convening
^e meeting or the adjourned meeting, which time shall be not earlier than twelve
o'clock at noon cf the day but one before, nor later than ttoelve o'clock at noon of the day
before the day appointed for such meeting unless the Court otherwise directs,

flehed. I. (24). — No person acting either under a general or a special proxy shall
vote in favour of any resolution which would directly or indirectly place himself,
his partner or employer, in a position to receive any remnnMiatkm out of the estate
of the company otherwise than as a creditor rateably with the other oreditocs of tiie
company : Provided that where any person holds special proxies to vote for an
appHoation to the Court in favour of the appointment of himself as liquidator he
may use the said proxies and vote accordingly.



Form 159.

Special proxy,



{TxtU.)



WsiS I [i^ » /^^i «^*'* " 'W'e *' instead of " I," tmi set out this jW? mm
of the firfn]f , of , a creditor [or "a oontiibtltoiy^']. hhj



1903.



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EIBST MBETINOS OP CREDITORfl AND CX)NTEIBUTORIES. 248

appoint [A^« insert either *'Mp. , of ," or "the off recr

in the above matter,**] as [** my " or " our "] proxy at the meeting of

creditors [or " contributories "] to be held on the day of ,

19 — , or at any adjournment thof, to vote [here insert the word **for"
or the word " against," as the case may require, and specify the parti'
cular resolution'].

Dated this day of , 19 — .

Signed [i/ajirm, sign thefirm^s trading title, and
add, **by A. B., partner in the sd firm**].

Signature of witness.
Address.

Kom.

1. A creditor (or oontributory) may giye a speoial proxy to any person to vote
at angr specified meetiDg or adjournment thereof on all or any of the following
mattm: —

(«) For or against the appointment or oontinuanoe in office of any specified person

AS liquidator or as memlier of the oommittae of inspection.
(^ On all questions relating to any matter, other than those above referred to,

arising at a specified meeting or adjournment thereof.

2. The authorized agent of a corporation may fill up blanks and sign for the
oozpQrati0n, thus : —

" For the company,

*' J.S. (duly auibonsed under the seal of the oompany)."



Certificate to be signed hy Person other than Creditor [or " Con^
tributary**'] filUng up the above Proopy.

I, , of , being a [here state whether clerk or manager in the

regular employment of the creditor (or contributory), or a commissioner
to administer oaths in the Supreme Ct (see Eule 13)], hby certify that
all insertion in the ^bove proxy are in my own handwriting, and have

been made by me ^t th^e request of the above-named , and in

his presence before he attached his signature [or mark] thereto.

Dated this day of , 19—.

(Signature.)

The proxy must be lodged with the off recr or liqr not later than
the time named for that purpose in the notice convening the meeting at
which it is to be used.

And see notes to Form 168.

Appropriate extracts from the Oompanies (Winding-up) Act, and Bules as to
Proxies, are indorsed on each form of special proxy issued to creditors and oontri*
butories.

jl2



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244



WINDING-UP BY THE COUKT. [ChAP. XVII.



Form 160.

Application
and order
extendinj
time for
meetings.



imu.)

Ex parte the 0£E Eecr.

The ofE recr and prov liqr in the above matter hby applies to the

Ct for an extension of time to the day of , 19 — , for holding

the first meetings of creditors and contributories on the following
ground : —

That the statement of affairs was submitted to me on the day

of y 19 — , the time for submitting the same haying been extended

by me to that date.

Dated the day of , 19—.

Off Recr and Prov Liqr,

Mr. Registrar Hood. day of , 19 — .

Let the time for holding the first meetings of creditors and contri-
butories in the above matter be extended to the day of ,

19—.

H. H., Registrar.

The above form was used under Sbhed. I. r. 1, of the Act of 1890, and B. 45
of 1890, now annulled, and the form may be utilized for applicatiouB under B. I,
Sohed. I., aupra, p. 230.



Form 161.

Oertifioateof
pontage of
notices
(gfoneral).
Form 77 of
1903.



{TitU.)

I, , a clerk in the office of the off recr, hby certify :

1. That I did, on the day of , 19 — , send to [each creditor

mentd in the statement of affairs, or each contributory mentd in the
register of members of the coy, or as the case may he']^ a notice of the
time and the place of the first meeting, [or ** a general meeting," or
** adjourned general meeting," or as the case may &«], in the form here-
unto annexed marked '' A."

Paragraphs 2, 3, and 4, as in last preceding year [t^u., Fonn 76
of 1903 (affidavit of postage), for which see post, Foim 399].

(Signature.)

Dated .

This only applies when the meeting ib summoned by the official receiTer.
See Br. 124 and 129 of 1903, supra, p. 234.



Form 162. (Title.)

Authority to I, , the off recr of , do hby nominate Mr. ^ of ^ to be

asohair^i^ the chairman of the first meeting of creditors [or contributories] in the

of meetings above matter, appointed to be held at , on the day of ,



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FIRST MEETIKaS OF CREDITORS AND OONTRIBUTORIES. 246

19 — , and I depute him {^here insert ** being a person in my employment and use
or under my official control, or being an officer of the Board of Trade "] ^^^9 ^|
to attend such meeting and use, on my behalf, any proxy or proxies i903.
held by me in this matter.

Dated this day of , 19—.

, Off Eecr.

Ab to the power of the official reoeiver to depute someone to use his proxies, see
R. 133 of 1903, iupra, and to act as chairman, Sohed. I. r. 5, supra.



{Title.) Form 168.



Before at on the day of , 19— , at o'clock. ^^-^^

Memorandum. — ^The [first, or as the case may he'] meeting of [insert ment of first
" creditors " or '*contributories" as the case may he"] in the above matter ^e^^i,!^^
was held at the time and place above mentd ; but it ap{>earing that porm 78 of
[here state reason for adjournment'] the meeting was adjourned xmtil the l^^^*

day of , 19 — ^ at o'clock in tiie noon, then to be

held at the same place.

, Ohairman.



(^'^^0 Pom 164.



Take notice, that the first meeting of ["creditors" or **con- Notice to

tributories "] in the above matter, held on the day of , TOntributSy

19 — , at , was adjourned to the day of , 19 — , and will of adjourned

accordingly be held at on the sd day, at o'clock in the *^™®«*»^-

n oon.

Dated this day of , 19—.

G. 8. Barnes, Off Recr and Prov liqr,

33, Carey Street, Lincoln's Inn, London, W.O.

For notioe of fresh first meeting, see Form 156a.



{TitU.) Form 166.



Before — - at on the day of ^ 19 — , at o'clock. Memorandum

Memorandum. — ^The adjourned meeting of [insert "creditors" or atadjoumel*
** contributories " as the case may be] in the above matter was held at first meeting
the time and place above mentd ; but it appearing that there was not ^° ^"2!^''
a quorum of [insert '^creditors" or '^ contributories" as the case may he] 1903.



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S46



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



qualified to vote present or repreaented, no reeolution was paased, and
the meeting was not further adjourned.



Form 166.

List of
oreditonor
oontributoriee
assembled, to
be used at
eyeiy meet-
ing.

J^omi 25 of
1903.



{Title.)
Meeting held at this day of , 19 — .



Number.


or lepTOBented.


Amount of proof [m com
•^Nmnberof ShMw"].


1
2
3

4
6
6
7


Totalnnmberblordditata [df <SMIiM)Wl6xtQi"]
present or represented.








7





Form 167.

Diyifiion list
of creditors
or contriba*
tones dis-



{Title.)

We, the undersignedy being creditors [^or '' oontributoriee "]

assembled at the meeting in the above matter, duly held at

this day of , 19 — y ia acoordance with the provisiona

of the sd Acts, do hby Tote against the resolution now proposed,
viz. :— That

[^Hers atais resolution proposed,^

Then follow, in the case of oreditors, three cohunns headed rospecrtiTdy
"number/' ** signatures of dissenting creditors,'* ** amount of proof," and, in ilia
case of oontribntories, four columns, headed reapeotiTely "number," '* signatures
of dissenting oontributoriee," ** number of shares," **munher ni yotes aooording to
the regulations of the company."

At the foot of the Hst is the signature '^ A. B., chairman."



Form 168.



{Title.)
We, the undersigned, being creditors [or contributories] assembled



Division list

of creditors or _ ..,•• « iiiiii .■■•

contributories at the meeting in the above matter, duly held at this

assenting. ^^y of , 19 — , in accordance with the provisions of the sd Acts, do

hby vote in favour of the resolution now proposed, viz. :— That

[^Here state proposed resolution."]

Then follow three columns, headed re8t>eo11yely ''number," "signatures of
assenting creditors," and "amount of proof," with the signature of the e h ai n a an



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HB8T UEETHtOS OF GBBPITOBg AKD CiONTBIBUTOBIES.



247



as in tlk9 iMt fozm^ gt, in the ^fMse ci oontri^torieB, foor oalunmA as in last



In the matter, &o.

1, A. B., tlie off recr of the Ct [or as the case may be], chairman of a
meeting of the creditors [or contribntories] of the above-named coy,

suwQoixed by iadyertiflem^ent [or notice] dated the day of -

19 — , «Qd held on the day of , 19 — , at , in the county



Form 169.



Beport of
result of
meeting of
creditors or
oontribu"
tories.

of 1 do hby report to the Ct the result of such meeting as (General

Form.)
Form 27 of
1903.



The sd meeting was attended, either personally or by proxy, by

creditors, whose proofs of debt against the sd coy were admitted for

voting purposes, amounting in the whole to the value of /. \_or

by contribntories, holding in the whole shares in the sd

ooy, and entld resply by the regulations of the coy to the number of
votes hnftr mentd].

The qnestion submitted to the sd meeting was, whether the creditors
[or contribntories] of the sd coy wished that [here state proposal sub'
mitted to the meeting'].

The sd meetiug was unanimously of opinion that the sd proposal
should [or should not] be adopted [or the result of the voting upon
such question was as follows : — Here set out the majorities by which the
respaoiive resahUums were carried].





Voting on Besolutions.


BcfloLntums at MeetingB.


For.


Against.




No.


Amount.


No.


Amount.


(State the substance of aoy resolu-
ti<ni8 passed, and give names of Com-
mittee of Inspection (if any), and
amount of thor proofs if creditors or
shares if contribntories.)

Cbjkditobs^












No.


Shares.


Votes.


No.


Shares.


Votes.

















Dated this day of , 19—.



(Signed)



H.T.,

Chairman.



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248 WINDING-UP BY THE COtJBT. [ChAP. XVII.

B. 58 (1) of 1908. — As soon as possiUe after the first meetmgs of oreditors and
oontributories have been held, the o£Eloial reoeiyer or the chairman of the meeting,
as the case may be, shall report the result of eaoh meeting to the Goort.



Form 170 '^^ following are some examples of decisions reported : —

Other reports "The sd meeting was of opinion that an applioon should be made to
of results of the Ot to appoint a liqr in the place of the off recr and a committee of
meetmgs. inspection, and it was xinanimonsly resolved that an applicon be made

to the Ct to appoint Mr. , of , chartered accountant, as liqr,

and A., B., and 0., contributories, as a committee of inspection, to act
with those, if any, appointed by the creditors."

" It was unanimously resolyed that no applicon be made to the Ot
to appoint a liqr in the place of the off recr, but that an applioon be
made to appoint A., B., and 0., contributories to the above coy, as a
committee of inspection to act with those nominated by the creditors.'^
** And it was unanimously resolved that no applicon be made to
appoint a liqr or a committee of inspection."

As to the prooednre to be followed after the report is filed, see Chap. XVIII.



Sometimes the official receiver makes a farther repotrt before the hearing.

Form 171. '''"~ (^»'^-)

j»^j^^^ The off recr, for the further information of the Ot, in considering

repOTt. the determinations of the meetings of the creditors and oontributoriee,

reports the following facts : —

1. At the meeting of, &c.

2. The sd A. A. was one of the promoters of the coy, and, &c.



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249



CHAPTER XVIII.

APPOnniiENT OF LIQUIDATOR AND COMMITTEE OF INSPECTION.

Ab to proviaioiial liquidators, see aupra, Chap. X.

Seet. 98 of 1868.— For the purpose of oonduotiiig tlie proceedings in winding-up Power to
a oompanj, and assisting the Ck>urt therein, there maj be appointed a person or appoint liqui-
persons to be called an [official] liquidator or [official] liquidators ; and the Court vJgST '
haying jurisdiction maj appoint such person or persons, either provisionallj or
otherwise, as it thinks fit, to the office of [official] liquidator or [official] liquidators ;
in all cases, if more persons than one are appointed to the office of official liquidator,
the Court shall dedare whether any act hereby required or authorized to be done by
the official liquidator is to be done by all or any one or more of such persons. 7^
Oourt may also determine whether any and what security is to he given by any official
liquidator an his appointment ; if no official liquidator is appointed, or during any
vacancy in subh appointment^ all the property of the company shall be deemed to
be in the oustody of the Court.

[The words in italics are repealed as to proceedings conunenced after the 31st
December, 1890 (see sects. 31, 38, and 34 of 1890} ; and the above section is further
qualified by the following provisions.

Moreover, as appears above, p. 145, the Court now has no power to appoint a pro- Provisional
visional liquidator after the making of a winding-up order ; for on a winding-up liquidator.
Older being made the official receiver becomes provisional liquidator by virtue of his
office. And the section is also modified as to the title to be given to the liquidator
as appears below.]

8eet. 4 (8) of 1800.— When a person other than the official receiver is appointed Style of
liquidator of a company, he shall be styled liquidator, and not official liquidator of liquidator,
the company, and the provisions of the Companies Acts relating to the official
Uqnidator shall, in their application to him, be construed as if the word " official "
were omitted therefrom. Such a person shall not be capable of acting as liquidator
until he has notified his appointment to the Registrar of Joint Stock Companies,
and given seonzitj in the maimer prescribed to the satisfaction of the Board of
IVade.

Beet. 6 of 1800.^(1.) When the Conrt has made an order for winding-up a com- First
pany the official receiver shall summon separate meetings of the creditors and meetings,
oontzibntories of the company for the purpose of—



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 35 of 152)