Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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Ct by A. B., a creditor of the sd coy, praying for a compulsory wind-
ing-up order, on the ground that the coy is insolvent and xmable to

pay its debts, and the of has been duly fixed for the hearing

of the sd peton.

3. By order of the Honourable Mr. Justice , made on the — ^

of ^ in the matter of the sd winding-up, I was appointed prov

liqr of the sd coy [and I have given security as required by the sd
order]. The sd order is now exhibited to me marked .

4. From the investigation of the affairs of the sd coy which as such
prov liqr I have made I believe that the sd coy is insolvent.

5. I submit, &c.



Form 366. Take notice, &o. [^see Form 9], on the part of A. B., the petr named
in the peton for the winding-up of the above-named coy presented in
this matter on the day of , that C. D., of , may be re-



Notioeof
motion by
petitioner to
restrain pro-
ceedings in
County Court.



strained until the hearing of the sd peton, or until further order, from
further proceeding with the action brought by him in the County Ot
of holden at against the sd coy.



Form 367.

Notice of
motion by
liquidator to
restrain pro-
ceedings in
Court other
than High
Court.



Take notice, &c. [see Form 9], on the part of
above-named coy, that , of , and



— , the liqr of the
of , may be



restrained from further proceeding with an action brought by them
against the above-named coy in [state C^], and that they may be
ordered to pay the costs of this applicon.

There must be an afiOdavit of the plaintiffs.



Form 368. Upon motion this day made unto this Ct by counsel for the above-

Qj^^j, named coy, the petrs, &c., and for S., prov off liqr, &c., and the sd S.

restraining by his counsel undertaking to abide by any order this Ct may make as

^tira^^"^ to damages, in case the Ct shall hereafter be of opinion that the N.

Coy has sustained any by reason of this order which the sd petrs ought

to pay, Order that the N. Coy be restrained until the hearing of the

sd peton, or the further order of this Ct, from taking any further

proceedings in the action by them against the sd petrs in the County

Ct of Lancashire, holden at Oldham, in the county of L. Derbyshire

Wagon Co., M. R, 12 July, 1879.



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STAYING ACTIONS AND PKOCEEDINGS AGAINST THE COMPANY. 407

Upon motion this day for L., the petr, &c. [ustml undertaking hy Form 359.
petr\^ this Ct doth order that A., B., and 0. resply, and their respective XnothCTi
agents, be restrained, until after the hearing of the sd peton or further
order, from taking any further proceedings in the actions brought by
them against the above coy mentd in the schedule hto. And order

that and resply, and their respective agents, be restrained

until after the hearing of the sd peton from selling under the execution
issued by them against the sd coy, and mentd in sd schedule. Banbury
Colour Co,^ Chitty, J., 9th May, 1884. A. 612. Schedule, with four
columns, headed resply: (1) Name and address of pit or person
sought to be restrained; (2) Ct in which proceedings taken;
(3) Nature of proceedings ; (4) Amount.

The proceedings in the above case were all in County Courts. For order restrain-
ing actions in Mayor's Court, see Ji6 Knights ^ Co.y Bacon, V.-C, 16th January,

1884.



UX>on motion for the association, &c. [usual undertaking as to Form 360.
damages^ Order that B. be restrained from taking any further q^^
proceedings upon the summons issued by him in the Bow Street restraining
Police Ct against the sd association. Briton Medical Association^ pro^dSSge.
Kay, J., 18th Feb. 1886, A. 181 ; 82 Ch. Div. 603.



The summons above mentioned was for penalties. See also Britcn Life Ch,f
W. N. (1888) 121.

For order restraining proceedings under summons for rates, see FUnt Coal Co.,
66 L. T. 16. And see Preferential Payments in Bankruptcy Act, 1888, in
Appendix A., infra.



XJx>on motion this day made unto this Ct by counsel for A., the Form 361.
petr named in the peton preferred unto this Ct on the 6th March, 1891, j^j^^^^on
and upon reading the a£Pt of, &c., and the sd A., by his counsel, against
undertaking, &a [as to damages^, This Ct doth order that the high ^^^"^

bailiff of the County Ct of , holden at , and H., be restrained

from selling and taking any further proceedings on the execution levied
upon the goods of the B. Coy, limtd, at the instance of the sd H., until
the hearing of the sd peton. British and Foreign Refrigerating Co.
(1891, B. 0100), North, J., 12th March, 1891. A. 276.



Upon motion, &c., for the liqr of coy, &c., Order that the high Form 362.
bailifE of the County Ct of Yorkshire, holden at K., do forthwith with- Another,
draw from the premises of the coy entered upon by him pursuant to a
warrant of execution directed to him, and issuing out of the Shoreditch
County Ct of Middlesex, holden at, &c., under a judgment obtained by



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408



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



B., of -, in an action commenced by him against the sd coy, as in

the sd afPt of C. mentd. And order that the ed high bailiff do deliver
up the possession of the sd premises to the sd liqr. And order that
the sd action be transferred from the sd Shoreditch County Ct, &c.,
to the sd Tice-Chancellor. Hull Central Drapery Co.^ Hall, T.-C,
5th April, 1879. A. 866.



Form 363.

Order

restraining

several

actions

against

company.



Upon motion this day made unto this Ct by counsel for the petrs,

Warren's, &c. Coy, limtd, whose registered office is situate at ,

and of M. and C, the liqrs thof, the petrs named in the peton preferred
by the sd petrs unto Her Majesty's High Ct of Justice, on the
11th March, 1886, for an order continuing the winding-up of the sd
coy under the supervision of the Ct, and upon reading an afft of R,
filed, &c. :

This Ct doth order that F. and Sons, and the several other persons
whose names are set forth in the first colimm of the schedule hereto as
pits in the actions against the sd Warren's, &c. Coy, Limtd, specified
in the third column of the sd schedule, and the solors of such persons
resply, be restrained until after the hearing of the sd peton, or further
order, from further proceeding in the sd actions commenced by
them against the sd coy, as in the sd schedule mentd, and in cases
where judgment has been obtained, from issuing or levying execution
upon the goods and effects of the sd coy in respect of any such judg-
ments, and also from commencing any other actions against the sd coy
for the same matters. Warren' s, Sfc, Co., Bacon, V.-C, 13th March,
1886.



Form 364.

Order of
Queen's
Bench Divi-
sion staying
proceediDgs.



Upon hearing counsel for the D., &o. Coy, Limtd, and for S., the
prov liqr, and upon reading the affts of G., and the sd liqr by his
counsel undertaking to abide by any order this Ct may make as to
damages, in case the Ct or a judge shall hereafter be of opinion that
the pit in this action shall have sustained any by reason of this order
which the sd S. ought to pay. Order that all further proceedings in
this action be stayed until the hearing of the sd peton. Osbom v.
Derbyshire, ^c. Co,, Q. B; Div., Field, J., 4th July, 1879.



Form 365. Upon the applicon of the sherifi of Yorkshire, and upon hearing the
solors for the applicant and for A. (off liqr) and others, &c. :

It is ordered that the sd sheriff do forthwith withdraw from posses-
sion of the goods seized by him under the writ of /. /a, issued in the
above-named matter and claimed by W. and P.



Order, on
interpleader
application,
for aheiiil to
withdraw.



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STAYING ACTIONS AND PROCEEDINGS AGAINST THE COMPANY. 409

And it is ordered that A., the off liqr of the aboye-named coy, do pay
to the sheriff of Yorkshire the sum of 19/. 8». 8c?. for his ascertained
costs of this applicon, including therein his possession money, and also
do pay to "W. and P. the sum of 16/. 5». Sd, for their ascertained costs
of this applicon, and that the sd off liqr be allowed the payments so
to be made and his costs of this applicon out of the assets of the sd
society.

And it is ordered that no action is to be brought against the sd
sheriff for the seizure of the sd goods. Belle-Vue Freehold Land
Society, Chitty, J., 15th April, 1885.

Ab to costs when a married woman fails in a claim, see Nunn ^ Co, v. Ty«on,
(1901) 2 K. B. 487.

As to payment into Court in case of a second seizure after payment into Court to
abide result of an interpleader, see KotehU y. Golden Sovereigns, Ltd,, (1898) 2 Q. B.
164.

As to ordering a sale in case of interpleader, see Faqum, Ltd. v. Sobinton, 85
L. T. 5.



Upon the applicon. of A., the prov off liqr of the above-named coy, Form 366.



by summons, &c., Order that the sheriff of Durham do give up to the Order on
prov off liqr of the sd coy all ppty in his possession, under or by virtue *^®f^ ^
of any execution on a judgment against the sd coy at the suit of J. N. but execution
and C. N., trading as, &c., and that the sd ppty be sold in the creditor's
winding-up of the sd coy, and that a separate account be kept and prese^ed.
taken of the proceeds of the ppty seized by the sd sheriff under the
sd writ ; and order that the sd execution creditors do have the same
priority, against the proceeds of the ppty seized by the sd sheriff and
sold, as they would have had if it had been sold by the sd sheriff with-
out prejudice to their right as creditors in the winding-up, and that they
be at liberty to apply in Chambers in the sd winding-up if the sale be
unreasonably delayed, and that the costs of all parties of this applicon
and the charges of the sd sheriff properly payable, including his
poundage, and including in the costs of the sd J. N. and C. N. the
costs of and incidental to the staying of the sale under their writ of
execution, be taxed by the taxing-master and pd out of the assets of
the sd coy. And order that the sd prov off liqr do pay the amount of
the costs incurred by reason of such distress, and be allowed the same
on passing his account. South Durham Brewery Co,, ^^J, J.y
9th April, 1885. B. 448.

An order as aboye is sometimes made when an execution is valid and a sale by
the sheriff would damage the property. See Mill Property Co,, I Eq. 649; Flas-yn'
Mhowye Co,, 4 £q. 689 ; Granville Motel, Reg., 1895.

This order was followed by Byrne, J., and the effect applied to other execution
creditors who had lodged their writs before the winding-up commenced. Sille
India Jtubber Co. (2), W. N. (1897) 20.



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410
Form



Another.



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

Upon the applicon by summons, dated, &o., of 8., the off recr and
prov liqr of the above-named coy, and upon hearing the solors for the
applicant, and for A., the execution creditor, and upon reading the
judgment dated the 15th Aug. 1895, in [^describe action] the peton of
0. preferred imto this Ct on the 1 7th Dec. 1 895, for the winding-up
of the above-named coy, and the order dated the 20th Dec. 1895
[appointing interim prov Uqr], And both parties by their solors con-
senting to this order. It is ordered that the sheriff of G. do go out of
possession and do give up to the off recr and prov liqr of the sd coy
all ppty in his possession under or by virtue of any execution on a
judgment against the sd coy at the suit of the sd A., the sd A. to have
the same charge on the ppty of the sd coy in the hands of the sd
sheriff for the payment of his judgment debt and costs as if such ppty
had been sold by the sd sheriff under the writ of fi^fa. before the
peton for the winding-up the sd coy was presented. And the sd A. is
to be at liberty to apply, in case his sd judgment debt and costs are
not pd within one month from the date of this order, for directions as
to the realization of the sd ppty now in possession of the sd sheriff.
And it is ordered that the costs of the applicant and of the sd A. of
and relating to this order and the charges of the sd sheriff properly
payable, including his poundage, be taxed and pd out of the assets of
the sd coy. Queen's Hotel, Cardiff (00293 of 1895), Hood, Eeg.,
24th Dec. 1895.

The above order was made after petition presented and interim provinonal
liquidator appointed.



Form 366b.

Another,
without pre-
judice to
claims.



Upon the applicon of F., the liqr of the above-named coy, by
summons, dated, &c., and upon hearing counsel for the applicant and
for W. and the solors for T. and for the sheriff of Staffordshire, and
upon reading, &c. It is ordered that the sheriff of Staffordshire do
give up to the applicant, as the liqr of the sd coy, all ppty in his
possession under or by virtue of any executions or judgments against
the sd coy at the respive suits of the sd "W. and of the sd T. upon
payment by the sd liqr out of the assets of the sd coy of the costs,
charges, and expenses of the sd sheriff properly payable in respect of
the sd executions and consequent thereon, including his poundage
(such costs, charges, and expenses to be taxed). And order that such
payment is to be without prejudice to the question by whom the sd
costs, charges, expenses, and poundage, or any part thof , are ultimately
to be borne. And order that the sd liqr be at liberty to sell such ppty,
together with the other assets of the sd coy, but until such sale the sd
liqr is to hold the sd ppty and any articles for the completion of which
the same or any part or parts of such ppty may be used, and the pro-



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STAYING ACTIONS AND PEOCKEDINGS AGAINST THE COMPANY. 411

oeeds of sale of all such ppty, and of the articles in the completion of
which any of such pptj may have been used up to and including the
sum of 300/., subject to such order as the Ct may make as to the
claims of the sd execution creditors, or either of them, for debts, costs,
and expenses. And order that no action be brought against the
sherifE for the seizure of the sd goods. And order that the costs of
all parties other than the sd sheriff of and incidental to the sd applicon
be reserved to be dealt with by the Ct on the hearing of the summons
issued by the sd execution creditors, and dated, &c. Fleet Cycle Co.
(00201 of 1898), Channell, J., vac. judge at Chambers, 12th Oct.
1898.



Declare that the Ct is of opinion that Mr. Taylor is entitled to the Form 367.
same charge on the assets of the coy in the hands of the shenfE as if Execution
such assets had been sold by the sherifE under the writ oiji.fa, before ^editor giren
the peton for winding-up the coy was presented ; and order that the *"^'

sheriff go out of possession and deliver the assets in his possession to
the liqrs ; and order the liqrs to sell forthwith sufficient assets to raise
the amount due to Mr. Taylor in respect of the three bills for 5,000/.,
and interest at 4 p.c, and costs, and out of the proceeds of such sale
pay Mr. Taylor the amount of his judgment debt and interest at 4 p.c.
thereon from the signing of the judgment, and costs, and the costs of
both motions, and pay the costs of the sheriff. Liberty to Mr. Taylor
to apply in case the liqrs do not seU forthwith. Taylor y. Bailway
Steel and Plant Co,, HaU, V.-C, 18th Feb. 1878, 8 C. D. 183.

The above order was made after the order for transfer [Form 667, infra] had
been made. The creditor was thos dealt with because he had been nnf airly delayed
by the company. See similar orders, Eill Pottery Co.y 1 Eq. 619 ; Flas-yn^Mhowys
a>., 4 Eq. 689; and see Re Riehards, 11 C. D. 676. But the authority of these
» is doubtful. See Vron Colliery Co,, 20 C. Diy. 442.



Upon the applicon of B., proy off liqr, and upon hearing the Form 368.
solors for the applicant, and for the pit in the action, &c.. Order Liberty to
that the sd prov off liqr be at liberty to pay to the sd L., pit in the sd P»y o^t

action of , and to the sd, &c. [other pits in other actions'], the ci^tore^

amount of ppal, interest, and costs, including sheriff's fees, to the
sd pits resply in full, and the costs of this applicon, such costs to
be taxed by the taxing master, in case the parties differ, out of the
assets of the coy. City of London Co-operative, Hall, V.-C, 9th March,
1881. A. 626.

In the above case the execution had been duly levied before the commencement of
the winding-up.



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412



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



Order
restraining
proceedings
against ship,



Form 869. Upon motion, &o., Award an injunction a^nst E. & E., trading as
Ellis & Co., of Liverpool, &c., to restrain them and each, and every of
them, their attorneys and agents, from proceeding farther in certain
causes and suits instituted by them resply in the foreign Ots at Hayre
against the steamship or vessel A., her tackle, apparel, and furniture^
the ppty of the sd coy, and against M. to restrain him from prosecuting
or commencing any proceedings against the sd steamship or vessel A.,
or doing any act to cause the arrest of the sd vessel, until the further
order of this Ct ; and this order is to be without prejudice to such
rights (if any) as the sd M. has against the sd steamship or the
proceeds of sale thof. Liverpool, Sfc, Co,, M. R., 29th July, 1875.
B. 1275.

The arrest of a vessel is a proceeding within sects. 85, 87, and a sequestration
•within sect. 163 of the Companies Act, 1862. Australian Direct Co., 20 Eq. 325 ;
Bio Grande, ^c. Co., 5 C. Div. 282.

As to judgment in rem in foreign Court, see Minna Craig Co, v. Chartered, ^.
Bank, (1897) 1 Q. B. 460.



Form 370. Upon the applicon of T., and it appearing that the sd T. is entld
Order giving to a lien upon the steamship Sesios of 322/. due to him as wages and

effect to ship- subsistence money as master of the sd steamship &om to ,

master s lien. -

being the date of the arrival of the sd ship at the port of London, in

priority to all other claims against the sd ship. Order that the [off]

liqr do pay such sum of 322/. to the sd T. out of the assets of the coy

comiDg to his hands, together with the sum of 5/. 5«. 6(/., being the

amount of the ascertained costs of the sd T. of this applicon. Olobe

Steamship Co,, Chitty, J., 29th July, 1884. A. 1216.



Form 371.

Order
restraining
proceeding
m foreign
Court.



Upon the applicon of off liqr, &c., Order that C. be restrained from
further proceeding against the off liqr in the Commercial Ot of the
Island of Malta with reference to a sum of 1,000/., deposited, &c.
Costs of sd proceeding in Malta and of applicon to be reserved.
General Works Co,, Bacon, V.-C, 20th Nov. 1879. A. 2177.

Injunction to restrain Scotch action. See Hermann Loog, 36 C. D. 502 ; Tkurto
Oas Co,, 42 C. D. 488.
For orders restraining landlord and others from distraining, see Forms 384 et teq.



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4i;}



CHAPTER XXXIV.

LIBEETY TO SUE AND PROCEED AGAINST C?OMPANY.

8eet. 87 of 1862. — When an order has been made for winding-up a company No action
under this Act, no suit, action, or other proceeding shall be proceeded with or J'^^thout
commenced against the company except with the leave of the Court, and subject to
Buoh terms as the Court may impose.

Sect. 168 of 1862. — ^Where any company is being wound up by the Court, or Eseoutioni*,
subject to the supervision of the Court, any attachment, sequestration, distress or &o., void,
execution put in force against the estate or effects of the company after the com-
mencement of the winding-up shall be void to all intents.

Sect. 163 muKt be read with, and is to a certain extent controlled by, sect. 87.
EiggimhatP Mills and Spinning Co.y (1896) 2 Ch. 544, 551.

As to applications to stay proceedings in contravention of the above sections, see Staying
Chap. XXXIII. proceedings.

Where, after a winding-up order has been made, a company appeals to the Court
of Appeal against an adverse decision of the High Court in an action, the plaintiff
may appeal to the House of Lords without leave. Humber ^ Co, v. John 6r\ffitht
CycU Cb., 85L. T. 141.

Leave to commence or proceed must be obtained from ''the Court," t.^., the How leave
Court in which the winding-up is conducted. Rio Orande Co., 5 C. Div. 282. obtained.
The leave may be given on an ex parte application. Williama v. Bristol, ^c, Co,,
39 L. J. Ch. 504. But, as a rule, leave should only be given on a summons or
motion served on the liquidator. Western and Brazilian Telegraph Co, v. Bibby,
42 L. T. 821.

In determining whether to g^ve leave or not, the Court considers the question of Where leave
convenience and the special oironmstancee of the case. St, Cuthbert Lead Co,, given.
35 Beav. 384. Thus, where a shareholder has, before the commencement of the
winding-up, brought an action for rescission of contract on the ground of mis-
representation, leave to proceed is generally g^ven, especially where there is a
serious question to be tried, or where the directors are also sued in the action for
damages, or where there are several such actions. Hall v. Old Talargoeh, ^, Co.,
8 0. D. 749.

So, also, whenever it is desired to oommenoe or continue proceedings against Debenture
some person or persons outside the winding-up jurisdiction, and the company is a aotions.
necessary party thereto, leave will be given. Bio Orande Co,, 6 C. Div. 282;
Marshall v. Olamorgan Co., 7 Eq. 129. So debenture holders and secured creditors
are generally given leave to proceed. See Form 377) and note thereto.

As to the title of the writ of summons in a debenture holder's action, and assign*
ing it to the winding-up judge, see Fiaotioe Master's Directions in Appendix 0.



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414



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



Leave has been given to a vendor to take proceedings to enforoe his lien for
unpaid pnrohase-money. Bldkely t. Dent^ 16 W. K. 668.

An action against the company to set aside a contract as ultra vires will generally
be allowed to proceed.

As to landlords, see Chap. XXXV.

As to rates and taxes, see Chap. XXXVII.

Sects. 85 and 87 of 1862 were intended to protect the assets of the company, and
not to interfere with outsiders. Lloyd r, David Lloyd ^ Co,y 6 C. D. 345 ; JTanzer,
Limited, (1891) 1 Ch. 305.

A secured creditor is entitled to all his costs properly incurred in enforcing his
security. Sio Grande Co.^ 5 Ch. 282.
Costs. A creditor who proceeds- without leave is in the wrong, and even if on an appli-

cation to stay the Court subsequently gives him leave to proceed, he will be ordered
to pay thB costs. Wanzer, Limited, (1891) 1 Ch. 305.
Undertaking. Except in the case of proceedings to enforce the rights of secured creditors, or for
ihe recorery of specific property, the Court, in giving leave to proceed, generally
requires an undertaking not to enforce against the company without the leave of
the Court any judgment obtained ; for the object in giving leave is to facilitate the
ascertainment of the rights of the claimant, and not to give him priority over the
other creditors. McEtcen v. London, ^. Bank, 15 "W. R. 245 ; and Form 376, infra.

Where liberty to proceed is obtained, and afterwards, before the trial, thcaction
is dismissed for want of prosecution, the plaintiff is not precluded from bringing
forward a claim in the winding-up. Orrell Colliery Co., 12 Ch. D. 681. And the like
rule will prevail where the plaintiff discontinues. The Ardandhu, 12 App. Cas. 266.

Where the Court g^ves leave to bring or proceed with an action, the Court of
Appeal will not as a general rule interfere. Thames Flate Glass r. Land emd Sea Co.,
6 Ch. 643. But where leave is refused the Court of Appeal sometimes g^ves leave.
McEwen v. London, ^c. Bank, 15 W. R. 246 ; Strand Hotel Co., W. N. (1868) 2 ;
Lloyd T. David Lloyd ^ Co., 6 C. D. 339.

As to allowing, after winding-up, amendments raising new gprounds, see Coeksedge
V. Metropolitan Co., 66 L. T. 432.

As to the effect of arrestment in Scotland, jurisdietionis fundanda eausd, see West
Cumberland Iron and Steel Co., (1893) 1 Ch. 713.

The sections apply in the case of an unregistered company. JRudow y. Great
Britain, ^e. Society, 17 C D. 600, 611.
T wwiaf Ar^ As to automatic transfer of actions or proceedings to winding-up judgfe, see infra^

p. 581.



Discontinu-
ance, &c.



Appeal.



Form 372. I^©t, &c. [see Form 10], on the hearing of an applicon of , of,

&c., for an order that, notwithstanding the order of this Ct dated, &c.,
to wind up the sd coy, the applicant may be at liberty to commence an



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 54 of 152)