Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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CARBYINa ON THE BUSINESS. 345

sion, and for tliat purpose to pay out of the moneys from time to time
in his hands the salaries, wages, and remuneration of the persons
employed in the sd business, and all suoh rents, taxes, and other
outgoings as may from time to time become due and payable in respect
of the premises now and from time to time to be in the occupation of
the sd coy, and for the purpose of carrying on the sd business and
manufacturing stoves as af sd, to make such purchases as may be proper
in the ordinary course of business, for cash, of goods, and to pay the
purchase-money out of such moneys as afsd, and from time to time
for the same purpose to make such sales of the effects of the sd coy
as may be necessary or proper in the ordinary course of business.
\Leave to open local hanking account,'\

And it is ordered that the sd off liqr be at liberty, for the purpose
of carrying on the business of the coy as afsd and payment of current
expenses and completion of contracts in hand, to borrow immediately
or from time to time such sum or sums as he may require, not exceed-
ing in the whole 300^., the rate of interest on the amount so borrowed
not to exceed 6/. p.c.p.a.

And it is ordered that the off liqr be at liberty to make such advance
or advances himself.

And it is ordered that the amount so to be borrowed, with the inte-
rest for the same, do constitute a first charge upon all the coy's assets
and undertaking, subject to any charge or incumbrances now existing
thereon. And it is ordered that the sd off liqr be at liberty to execute
a proper instrument or instruments for carrying out any such loan or
loans or otherwise perfecting any such charge as afsd to be settled by
the judge. [And it is ordered that the sd off liqr do forthwith at the
expiration of such six weeks leave at the chambers of the judge his
account of the sd business so to be carried on as afsd.] Hygienic
Heating, Sfc. Co,, Chitty, J., 7 Jan. 1886.

The liquidator must now aooount to the Board of Trade. And see Form 283,
Chap. XXIX., for order for sale and closing business.



Order that the applicants, as such off liqrs, continue without further Form 256.
order to carry on the works and business of the sd coy for the space of brderlo ^ny
six calendar months from the date of the order. And order liiat for o^ businees
the purpose of carrying on such business the applicants be at liberty montiSy^
to pay the salaries of workmen, and the rents and royalties in respect accounts.
of the mines resply payable by the coy, and any other necessary
expenses in order to the carrying on the sd business. And order that
the applicants do until further order render their accounts of the sd
business so to be carried on by them as afsd once a month ; the first
account to be rendered on the 27th March, and to embrace the period



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346 WINDING-UP BY THE COUBT. [ChAP. XXVI.

from lOth February, 1879, up to the date of this order, as well as
subsequent thereto, and the subsequent accounts up to 27th of each
subsequent month. Thomas W. Booker Sf Co.^ Fry, J., 25th Feb.
1879. B. 362.



Liberty to
farther cany
on business
and execute
power of
attorney to
person
abroad.



Form 256. Upon the applicon of the off liqr of the above-named coy, and upon
hearing the solors for the applicant, and upon reading, &c.. It is
ordered that the sd A., as such off liqr, be at liberty to carry on the
business of the sd coy for the further period of nine months from the
date of this order, but he is to report to the judge as to the position
of such business at the end of six months from the date hereof. And
it is ordered that the applicant, as such off liqr, be at liberty to execute

and transmit to W., of , New Brunswick, in the Dominion of

Canada, bank manager, the further power of attorney to do and act
in the sd Dominion with reference to the affairs and business of the
sd coy, which has been approved by the judge and is identified by my
[^chief clerk^s'] signature to a memdum in the margin thof , and that the
sd off liqr be at liberty to revoke such power of attorney at any time
as he shall think fit or when the judge shall so direct. New Brunnoick
Co. of London^ Stirling, J., 15th Jan. 1891, B. 42. .



Form 257.

Betum of
trading.



In the matter of .

Betum of cash receipts and payments for day, the day

of , 19—.

(To be signed by the secretary or manager, and forwarded each
evening to the off recr, with vouchers/or all payments.)

[Then follow, on the debit side, four columns, headed (1) Beceived
from (names of debtors must be stated) ; (2) Gash received for book
debts due at date of winding-up order ; (3) Gash received for ready-
money takings ; (4) Total. On the credit side are five columns headed
(1) Paid to ; (2) Gash paid for goods necessarily purchased for ready
money; (3) Gash paid for incidental trade expenses (not to include
wages); (4) Gash paid to off recr ; (5) Total.]

N.B.— Goods miist not be sold nor purchases made on credit without
the written permission of the off recr.

N.B. — Gash for goods and trade expenses are to be pd only out of
ready-money takings, and not out of book debts due at date of order.

Signature of Secretary or Manager .

Address .



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347



CHAPTER XXVn.

DELIVERY OF BOOKS AND OTHER PROPERTY.

Beet. 94 of 1862.— The {qflciaQ liquidator or liquidators .... shall take into Liquidator to
his or their custody, or under his or their control, all the property, effects, and *?^® poeses-
things in action to which the company is or appears to be entitled.

Beet. 98 of 1862. — Ab soon as may be after making an order for winding-up the
company, the Court .... shall cause the assets of the company to be collected
and applied in discharge of its liabilities.

Boot. 100 of 1862. — The Court may, at any time after making an order for Order on
winding-up a company, require any contributory for the time being settled on the persons to
list of contributories, trustee, receiver, banker, or agent, or officer of the company ^^^^©"^ ^P-
to pay, dellTer, convey, surrender, or transfer forthwith, or within such time as
the Court directs, to or into the hands of the [official] liquidator, any sum or balance,
books, papers, estate, or effects which happen to be in his hands for the time being,
and to which the company is pritnd facie entitled.

The object of the above section was to give a summary mode of procedure as
against the persons named. £x parte HawktM^ 3 Ch. 787. It gives no jurisdiction
as against outsiders. Ilkley Hotel Cb., (1893) 1 Q. B. 248; Hollingncorth* $ case, 3
D. & Sm. 102 : CoxU cote, ibid, 180. The Act contains no provision like sect. 102
of the Bankruptcy Act, 1 883. As to delivery under sect. 27 of that Act, see £x parte
Goodman^ 15 T. L. B. 40. As to when property is in possession, see £e Fetosier,
(1901) 1 Ch. 447 ; -Btf JFilkint, W. N. (1901) 202.

ieot. 18 of 1890. — General rules may be made for requiring or enabling all or

any of the powers and duties conferred and imposed on the Court by sects 98

[and] 100 of the Companies Act, 1862, to be exercised or peiformed by the liqui«
dator as an officer of the Court, and subject to the control of the Court.

E. 78 of 1908. — (1) The duties imposed on the Court by sect. 98 of the Com-
panies Act, 1862, in a winding-up by the Court, with regard to the collection of the
assets of the company and the application of the assets in discharge of the com-
pany's liabilities, shall be discharged by the liquidator as an officer of the Court,
subject to the control of the Court. [Formerly B. 89 of 1890.]

(2) For the purpose of the discharge by the liquidator of the duties imposed by Liquidator in
sect. 98 of the Companies Act, 1862, as varied by sect. 13 of the Act of 1890, and pomtion of
the last preceding rule, the liquidator in a winding-up by the Court shall, '®^^^®'*
for the purpose of acquiring or retaining possession of the property of the com-
pany, be in the same position as if he were a receiver of the property appointed by
the High Court, and the Court may, on his application, enforce such acquisition or
retention accordingly. [See Chap. XXVI. Formerly B. 90 of 1890, the latter part
of which rule was taken from sect. 60 of the B. A. 1883.]

A receiver, if necessary, may be put in possession by writ of possession (B. S. C.
Ord. XLVII. r. 1), and in some oases a writ of assistance can be obtained.
Old. XLVII. r. 2. W^num v. Kniffht, 39 C. D. 265.

Interference with possession of receiver is a contempt of Court, and may be
visited with comm itt al or restrained by injunction. Amee v. Birkenhead Docks, 20



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348



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



Kotioe to
deliyer pro-
perty.



Delivery by
official



Delivery to
official
receiver on
release, &c.



Disposal of
books, &c.



Failure to
deliver pos-
session.



Beav. 332 ; Helmore t. Smith, 35 C. D. 449 ; Ex parte Coehran$y 20 Eq. 282 ; Under^
hay T. Jtead, 20 Q. B. D. 209 ; Tink v. Bundle, 10 Beav. 318 ; SeUm, 656. Anyone
who daims a right to interfere should apply to Court for leave and thns avoid
contempt. Lane v. Captey, (1891) 3 Ch. 411 ; Seton, 656.

B. 79 of 1903.— The powers oonferred on the Court by sect. 100 of the Companies
Act, 1862, shall be exerdsed by the liquidator. Any oontribntory for the tune
bemg on the list of oontributories, trustee, receiver, banker, or agent or officer of a
company which is being wound up under order of the Court shall, on notice from
the liquidator, and within such time as he shall by notice in writing require, pay,
deliver, convey, surrender, or transfer to or into the hands of the liquidator any
sum of money or balance, books, papers, estate or effects whioh happen to be in
his hands for the time being, and to which the company is primA facie entitled.
[Formerly B. 91 of 1890.]

E. 144 (1) and (2) of 1908.— (1) Where a liquidator is appointed by the Court,
and has notified his appointment to the Registrar of Joint Stock Companies,
and given security to the Board of Trade, the official receiver shall forth-
with put the liquidator into possession of aU property of the company of
which the official receiver may have custody ; provided that such liquidator shall
have, before the assets are handed over to him by the official receiver,
discharged any balance due to the official receiver on account of fees, costs,
and charges properly incurred by him, and on account of any advances properly
made by him in respect of the company, together with interest on such advances at
the rate of four pounds per centum per annum ; and the liquidator shall pay aU
fees, costs, and charges of the official receiver which may not have been discharged
by the liquidator before being put into possession of the property of the company,
and whether incurred before or after he has been put into such possession.

(2) The official receiver shall be deemed to have a lien upon Uie company's assets
until such balance shall have been paid and the other liabilities shall have been
dischsrged. [Formerly R. 161 (1) and (2) of 1890, taken from Bkcy. R. 318.]

B. 158 of 1903. — (1) Upon a liquidator resigning, or being released or removed
from his office, he shall deliver over to the official receiver, or, as the case may be, to
the new liquidator, all books kept by him, and all other books, documents, papers,
and accounts in his possession relating to the office of liquidator. The release of a
liquidator shall not take effect unless and until he has delivered over to the official
receiver, or, as the case may be, to the new liquidator, all the books, papers, doou*
ments, and accounts which he is by this rule required to deliver on his release.
[Formerly R. 141 of 1890.]

(2) The Board of Trade may at any time during the progress of the liquidation,
on the application of the liquidator or official receiver, direct that such of the
books, papers, and documents of the company or of the liquidator as are no longer
required for the purpose of the liquidation may be sold, destroyed, or otherwise
disposed of.

As to the liquidator obtaining posseeslon from the official receiver, see also
Chap. XXI.

The above powers may be exercised by the official receiver while acting as pro-
visional liquidator under the winding-up order. See Chap. XV.

A comparison of the language of sect. 13 of 1890 and R. 79 of 1903 {eupra) with
that of sect. 100 of 1862, and of Form 41 of 1903 (Form 258, itrfra) with Fona 261
{infra) y seems to warrant the conclusion that a contributory, trustee, or other person
within the category of persons amenable to sect. 100 of 1862, or R. 79 of 1903, who
fails to comply witii the liquidator's notice, is in the same poiltioiiy although no



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DELIVERY OP BOOKS AND OTHER PROPERTY. 349

order of the Court has been made, as he would have been under the old practice
after the Court had made an order against him under sect. 100. The power con-
ferred on the Court by sect. 100 is now, by sect. 13 and R. 79, " subject to the
control of the Court," to be exercised bj the liquidator as an officer of the Court —
not by means of an order, as formerly, but by notice.

Under the practice before 1891, disobedience to the order subjected the respondent Committal,
to an attachment {Anglo-French Co-operative Society^ 14 C. D. 633), or in some cases ^^•
to an order for committal. And it may be that failure to comply with the liqui-
dator's notice has a similar effect, and that the liquidator can apply to the Court for
an order accordingly. However, looking to the fact that the liquidator is to bo
regarded (R. 78 of 1903) as if he were a receiver appointed by the High Court,
which may on his application enforce such acquisition, it would seem that if he is
improperly prevented from taking possession he can apply to the Court for an order
enforcing his rights, and if needs be, for committal. See Chap. XXI.

Applications in the High Court for committal of any person to prison for contempt
must be made in open Court. R. 5 of 1903.



{Title.) Ponii268.



Take notice that I, tte undersigned [^name of tigr'lf Have been Notice by
appointed liqr of the above-named coy, and that you, the under-mentd J^'^^^
[name of person to whom notice is addressed], are required, within ■ payment of
days after service hereof, to pay to me [or deliver, convey, surrender, ^^^Tverv of
or transfer to or into my hands], as liqr of the sd coy, at my office, books, &c. to

situate at [address of liq/s office'], &c., the sum of /., being the liquidator.

amount of debt appearing to be due from you on your account with j^q™
the sd coy [or any sum or balance, books, papers, estate or effects]
[or specijically describe the ppty], now being in your hands, and to
which the sd coy is entld [or othenoise, as the case may he].

Dated this day of , 19—.

(Signed) Liqr.

^To [name of person to whom notice is addressed].
[Address,]

This is the notice referred to in R. 79 of 1903, wpra.



{Title.) Form 259.

Take notice, &c. j^^^^t

At the expiration of two clear days from the date hereof, &c. [see motion for
Form 9], on behalf of A. B., of, &c., [the off recr and] Hqr of the ^^^^ °'
above-named coy, That X., of, &c., the secretary [or as the case may be], attachment,
may be ordered to stand committed to the Holloway Prison for his ^^^ olier-
contempt in making default in delivering [or as the case may be] to the order to
said A. B., as such [off recr and] liqr as afsd [state what], in the hands deliver,
of the sd X., as such secretary as afsd, pursuant to a notice in writing,
dated, &c., and given to the sd X. by the sd [off recr and liqr]. Or



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350 WINDING-UP BY THE CX)URT. [ChAP. XXVII.

in the altematiye, that the sd A. B. [of! reor and liqr] may be at
liberty to issue a writ or writs of attachment against the sd X. for
his contempt afsd. Or in the further altematiye, that the sd X. may
be ordered forthwith, or within such time as the Ot shall direct, to
deliver to the applicant [state what']. And that the sd X. may be
ordered to pay to the applicant his costs of and incidental to this
applicon and the order to be made thereon, or that such further or
other orders may be made as the circumstances of the case may require.
And further take notice, that the applicant intends to read and use in
support of the sd applicon the afPts and evidence set forth in the sche-
dule hto, copies of which are served with this notice of motion.
Dated, &c.

The SoBEDtTLB before referred to.

(1) Afft of 0. D., proving service upon you of notice sought to be
enforced.

(2) Exhibit therein referred to, and being duplicate of such notice.

(3) Afft of A. B., proving your non*oompliance with such notice.

See Oswald on Contempt (2nd ed.), App. B. pp. 246 $tMg.; Ann. Pr. 1904, p. 612.



Form 260.

Snmmona for
delivery.



Let A. B., of, &c., attend, &c., on the hearing of an applicon by X.,
of, &c., the [o£E recr and] liqr of the sd coy, that the sd A. B., a
director of the sd coy, may be ordered forthwith to deliver to the
applicant the [state what, «.y., register of members of the above-
named coy], in accordance with the notice under the applicant's hand,

served on the sd A. B., and dated the day of , and that the

sd A. B. may be ordered to pay the costs of this applicon and of the
order to be made thereon.



Evidence. The application should be supported by affidavits that the piop er lj is, or is

believed to be, in the posseeslon of the respondent, and that it belongs primA facie to
the company, and that notice under R. 79 of 1903 has been duly served, and that
the respondent has refused to complj with or disregarded the notice.

Under the old practice, as appears below, the order for delivery was commonly
made in general terms, and no doubt the notice may be generally framed.

Where the person in possession has a lien or security, such lien or securitj will
not be disturbed without his consent. Capital Fire, 24 C. Div. 408.

But as to its not being allowed to embarrass persons other than the client, see J2#
Eawkee, (1898) 2 Ch. 1, in which the case last cited is explained.

Effect of lien. There can, however, be no lien on the register of members or register of mort-
gages, or books or documents required to be kept by the directors under the oon-
Btitution of the company. Ihid, ; Angh'MaUeee Co,, 64 L. J. Gh. 730. iCoreover,
where the articles provide that the books shall be kept at a particular place, this
may prevent a lien from being established. Ibid, ; and see Fart I. 8th ed. p. 618.
General words in a mortgage or in debentores wiU not, it seems, affect the corn-



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DELIVERY OF BOOKS AND OTHER PROPERTY. 351

panj'B books. Cfyne Tin Co., 47 L. T. 439 ; En^el v. South Metropolitan Co,, (1892)
1 Gh. 442. Query whether this case is consistent with Capital Fire, ubi »upra. And
as to prodacing doonments without prejudice to lien under sect. 115 of 1862, see
Expart4 Paine and Layton, 4 Gh. 215.

As to abandonment of solicitor's lien hj taking security, see Taylor, Stileman and
Underwood, (1891) 1 Gh. 590; BiaeUl v. Bradford Tramways, W. N. (1893) 44;
Douglat, Norman ^ Co., (1898) 1 Gh. 199.



In the matter, &c.

Upon tlie applicon of, &o., and upon reading, &c., It is ordered that Form 261.
A. B., of, &c., do within four days after service hereof pay to [or de- Order for
liver, convey, surrender, or transfer to, or into the hands of] R. P. H., payment or
the off liqr of the sd coy, at the office of the sd R. P. H., situate at, ^^72odf^^

&c., the sum of /. being the amount of debt appearing to be due I862(general).

from the sd A. B. on his account with the sd coy [^or any sum or
balance, books, papers, estates or effects] {_or specifically describe the
property]^ now being in the hands of the sd A. B., and to which the
sd coy isprimd/acie entitled [or o thermae as the case may he].

See R. 79 of 1903.



When it is important to get possessbn of books and documents subject to a lien, Fonu 262.
it is not uncommon to obtain an order as follows : —



Order for
Upon the applicon of the liqr, and upon hearing the solors for the ijoofaT^ ^

applicant and reading the afft of , Order that the applicant do, out

of any assets of the coy in his hands, pay to Messrs. , lately the

Bolors of the coy, the sum of 837/. in full discharge of the amount due
to them from the coy for costs or otherwise, and in discharge of any
lien they may have upon the deeds, books and documents belonging to
the coy. And order that upon such payment being made the sd

Messrs. do deliver up to the applicant, on oath, if required, all

deeds, books, papers and documents in their possession belonging to
the coy. London Fish Market^ Kay, J., 7th August, 1884. B. 1089.

Before applying for such an order it may in some oases be deemed desirable to Taxation,
obtain an order for delivety of the solioitor*s bill and for taxation. Such an order
oan be obtained on summons, and the order wiU not contain any undertaking by
the oiBcial liquidator to pay what shall be found due. See Re Brabant^ 23 S. J.
779 (1879), where Jessel, M. R., after consultation with his principal secretary,
said, *'That it was not the practice, in the case of a company in liquidation, to
grant the common order to tax, making the liquidator offer to pay what should be
found due. In all cases where there was a liquidation, a special order was granted
with no offer. The solicitor usually had liberty to add the costs of taxation to his
bill, with liberty to prove in the winding-up for the amount.'' But see Liverpool
Bomehold Stores, W. N. (1889) 48.

When a bUl Is snlijeot to taxaUon at the date of the winding-np order, it may



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352



Attachment,
&c.



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

be taxed at any time afterwards, though but for the order the time would be up.
Ex parte Evans, 11 Eq. 151 ; 40 L. J. Ch. 197.

Where an order, as above, is not thought expedient, production of the books, &c.,
can be obtained under sect. 115. See infra.

As to enforciDg an order for delivery by attachment, see AnfflO'Freneh Co^operatwe
Society J 14 G. B. 533. For order for delivery against a liquidator, see Horhwry
Bridge Co., 11 G. D. 109. Orders as in the next form used frequently to be made
in the chambers of Jessel, M. R., and elsewhere [hundreds have been made], but
having regard to the decision in Capital Fire, uhi supra, it would seem that the form
of order is too general, except by consent. But see Re Hawes, (1898) 2 Ch. 1.



Form 263. Upon tke applicon of the [off] liqr of coy, and upon hearing the
Order airainst ^^^^ f^^ *^® applicant and for Messrs. C. & S., solors, of, &c., appear-
the company's ing in person, and upon reading two orders, dated, &c., Order that
Bohcitors. ^^ ^^ Messrs. 0. & S., within fourteen days after service of this order,

deliver into the hands of B., the sd [off] liqr, at his office. No. ,

all deeds, booksj papers, letters and other documents now being in the
possession or power of the sd Messrs. 0. & S., and to which the coy
is primd facie entld. And order that such delivery shall be without
prejudice to the lien of the sd Messrs. 0. & S. on the sd deeds, books,
papers, letters, and other documents, which lien ought to be pd out of
the first moneys coming to the hands of the sd [off] liqr after pro-
viding for the costs and expenses of the winding-up of the sd coy;
but this order is not to prejudice any security or charge that may be
held by the sd Messrs. 0. & S. as against the sd coy. Langham
Skating Rink Co,, M. E., 13th Dec. 1877. B. 2063. See also Indian
Mammoth Gold Mines, M. E., 8th July, 1881. A. 2028 [a four days'
order as above^*



Order for
payment of
money
belonging to
company.



Form 264. Upon the applicon by summons of the off recr and upon hearing the
solors for the applicant, and for X., and upon reading the order to
wind up, dated, &c., and the afft of, &c., This Ct doth declare that X.
is liable to pay and account for the sum of 200/., which was in reality
the moneys of the coy, but was reed by X. from the N. Coy on the
29th July, 1890, together with interest thereon at the rate of 4 p.o.p.ai
from the sd 29th July, 1890, until payment. It is ordered that X. do
on or before the 30th July, 1892, or subsequently within four days
after service of this order, pay to the applicant S., as off recr of the



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 47 of 152)