Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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action in the [Chancery] Division of this Honourable Ct against the sd
coy for [state nature ofaction\ and that the costs of this applicon may
be costs in the sd action.



Sunmions for
liberty to
commence
proceedings.



Form 378. Let, &c. [see Fomi 10], on the hearing of an applicon of , of,

Summons foT ^^j ^^^ ^^ order that, notwithstanding, &c. [as in last form], the
liberty to applicant may be at liberty to proceed with an action in the Queen's
^^^^^jgg^ Bench Division of this Honourable Court in which the applicant is



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LIBERTY TO SUE AND PKOCEED AGAINST COMPANY. 415

plaintiff and A. and B. and the above-named coy are defendants, and
that the costs of this applioon may be costs in the sd action.



1. On the day of I commenced an action against the Form 374.

above-named coy and A., B., and 0., in the Queen's Bench Division of Affidayitin
this Honourable Ct for, &c., and I desire to obtain leave to proceed support,
-with the sd action.

2. I am advised by counsel and believe that I have a good cause of
action against the sd coy in respect of the subject-matters of the sd
action.

[3. The document now exhibited to me, marked J. £., is the
statement of daim delivered by me in the sd action, and I say that
such of the statements in the sd statement of daim as relate to my
own acts are true, and such of the statements as relate to the acts of
any other person or persons I believe to be true.]

Sometimes a paragraph as above is required.

4. My belief afsd is grounded partly on my own knowledge and
partly on the advice of my counsel, and on information obtained
through and from my solor in the course of the sd action. [ The sources
of information must be stated^]



1. I am the registered holder of 10 debentures of the above-named Form 375.

coy, numbered to inclusive, each dated the of , Another by

for securing the payment of the principal sum of /., with interest debenture

in the meantime at the rate of p.cp.a. The sd debentures are

now exhibited to me marked, &c.

2. The principal moneys secured by such debentures became, in

accordance with the terms thof , payable on the day of ,

when an order was made for the winding-up of the sd coy, and there
is an arrear of interest due in respect of such debentures.

3. The sd debentures are part of an issue of like debentures

of the coy, and the holders of such debentures are numerous.

4. All the sd debentures charge the undertaking of the coy, and
are further secured by a trust deed dated, &c., and made between the
coy of the one part and A. and B. of the other part. The document
now exhibited to me marked is a copy of the sd trust deed.

5. I desire to bring an action in the Chancery Division of this
Honourable Ct assigned to the judge having jurisdiction in the
winding-up of the sd coy to enforce the sd debentures, and to have
the trusts of the sd deed carried into execution by the Ct.



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416



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



Liberty to
proceed with
Queen*8
Bench Divi-
sion action.



Form 376. Upon the applicon of B., the pit in an action against the coy, and
J. W., 1882, B. No. 6011, and upon hearing the solors for the
applicant and for the off liqr of coy, and upon reading the winding-up
order, Order that the applicant by at liberty to proceed with the sd
action, the sd applicant undertaking not to take any steps to enforce
any judgment he may obtain against the sd coy therein without
obtaining the previous leave of the judge to whose Ct the winding-up
of the sd coy is assigned, the costs of the off liqr of and incidental to
this applicon to be costs in winding-up. Western Provincial Land,
Pearson, J., 19th Nov. 1883. B. 1554.

For order giving liberty to proceed with an action in which the company was a
co-defendant, **eo8i8 reserved,** see Vofft v. KnighU ^ Co., Pearson, J., 24th Feb.
1884.

As to liberty to proceed in Admiralty Division to enforce maritime lien against
ship, see Jfcr Mio Grande, ^e, Co., 6 0. Div. 282 ; Amtralian Direct, ^. Co,, 20 Eq.
325.

Orders are frequently made under sect. 87 of 1862. See Forms 377 et teq,,
infra. The application should not be ex parte. Western Brazilian Co., "W. N. (1880)
145; 42L. T. 821.

It has been held that under sect. 87 the Court has a discretionary power to permit
a creditor to proceed with executions, &c., declared void by sect. 163. JU Vron
Colliery Co., 20 0. Div. 442, seemed to cast doubt on these decisions ; but see Hig^
ginshaw Mills and Spinning Co., (1896) 2 Ch. 644, 551 ; Exhall Coal Mining Co., 4
D. J. & S. 377.



Form 377.

Liberty to
debenture
holder to
bring action.



Upon the applicon of H., a debenture holder of the sd coy, by sum-
mons dated the Uth Dec. 1876, and upon hearing the solors for appli-
cant, for the off liqr of the sd coy, and for and , trustees for

the debenture holders of the sd coy, and upon reading, &c., Order that
the sd n., as such alleged holder of eight debentures of 50/. each
in the sd coy, be at liberty to take cdl such proceedings in this Ct
against the sd coy and other parties as the applicant may be advised.
New Town Manure Co., M. R., 12th Dec. 1876. B. 1878.

A mortgagee or mortgage debenture holder will be given liberty as of course to
enforce his security. Lloyd v. David Lloyd ^ Co., 6 C. Div. 839 ; SamiUonU
TFindsor Ironworks, 12 0. Div. 707 ; fones v. Swansea Society, 29 W. B. 882 ; 50
L. J. Q. B. 428 ; Wanzer, Limited, (1891) 1 Oh. 305. As to leave being required
for proceedings by a receiver appointed in a debenture holder*s action, see Joshua
Slubbs, (1891) 1 Ch. 475, 482.



Form 378. Order that the applicant be at liberty to commence and prosecute an

^^^^^ action against the above-named coy in this Ct and Division for the

recovery of 2,000/., the amount of twenty debentures of 100/. each, of

the sd coy, numbered, &o., of which he is the holder ; such debentures



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LIBERTY TO SUE AND PROCEED AGAINST COMPANY. 417

purporting to form a charge upon the undertaking, and all the land
[^c] of the coy. But such action is not to be prosecuted beyond
giving notice of trial therein, without further leave of the judge first
obtained. Yniscedtvyn Co,, U. R., 6th Dec. 1876. B. 1917.

For order giving vendor liberty to bring* action against company for specific per-
formance of agreement to purchase land, and to enforce lien for nnpaid pnichase-
money, or in the alternative for a resoission of the contract and for other relief, see
Industrial Coal and Iron Co., M. R., 14th June, 1877. A. 1663.

Liberty to tmstees for debenture holders to bring action to have trusts carried
into execution notwithstanding supervision order. Cadiz Waterworks, Malins, V.-C,
8th May, 1877. A. 882.



Upon the applicon of S., on behalf of himself and other the holders Perm 379.



of mortgaged debentures having a charge upon the undertaking, ppty, Liberty to"
and effects of the above-named coy, and who are to rank pari passu proceed with
with the applicant in respect of the sd charge, and upon hearing the debenture
Bolor for the applicant, &o., Order that the sd S. be at liberty to pro- holders,
ceed with and prosecute an action now pending in the sd Chancery

Division of the High Ct of Justice, before , wherein the sd 8., on

behalf of himself and the sd holders of mortgage debentures, is plain tiif
and the above-named coy defendant. 1877, S. No. 279. Scilly Islands
Telegraph Co., M. R, 9th Aug. 1878. B. 1594.



TTpon the applicon of S. and H», the plaintiffs in the actiov "^. Perm 380.



v. The Carlyle FresSj Limid, 1892, 8. 3868," now pending in the Another.
Chancery Division of this Honourable Ct, before the Hon. Mr. Justice
Chitty, and upon hearing the solors for the applicants and for the off
recr and prov liqf of the sd coy, and upon reading the order to wind
up dated the 25th day of Oct. 1892, and the writ of summons in the
sd action dated the 11th of Oct. 1892, It is ordered that, notwithstand-
ing the sd order to wind up the above-named coy, the applicants, the
plaintiffs in the sd action, " Strong v. The Carlyle Press , Limtd, 1892,
8. No. 3868," be at liberty to proceed with the sd action. And it is
ordered that the costs of the applicants of this applicon be costs in the
sd action. Carlyle Press, Limid, 00133 of 1892. Beg., Oct. 28, 1892 ;
Henderson Sf Spalding, Limtd, 00104 of 1892. Same date.



TTpon motion this day made unto this Ct by counsel for the Lands Perm 881.



Allotment Coy, Limtd, that the applicants might be at liberty to pro - liberty to
ceed with the action instituted by them in, &c., notwithstanding the proceed with
order, dated, Ac, for the compulsory winding-up of the above-named limited
coy, and upon hearing ooimsel for 8., the off recr attached to this Ct, extent.
p. B B



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418 WINDING-UP BY THE OOUET, [ChAP. XXXIV.

and the proy liqr of the above-named coy, and upon reading the writ
in the sd action, dated, &o., It is ordered that the applicants be at
liberty to proceed with the sd action to the extent of applying this day
for the appointment of the sd 8., the off reor, as interim recr in the sd
action. And it is ordered that the rest of the sd motion do stand over
generally, with liberty to either party to apply to have the motion
restored. Beal Estates Co., 00142 of 1892, Vaughan Williams, J.,
11th Nov. 1892. And see O. Newman ^ Co., 00146 of 1892 j Orders
dated 25th Nov. 1892, and Srd Dec. 1892.

A seoared creditor ia' primd fade entitled to proceed, and it would not be propor
for the Court to refuse liberty to proceed except as aboye, in order to compel the
secured creditor to allow the assets to be realised in the winding-up, and thus to
forego his just rights.



Liberty to
proceed
under
execution.



Form 382. Upon the applicon of W., and upon hearing the solors for the appli-
cant and the off recr and liqr in person, and upon reading the order
dated the 11th March, 1891, the order to wind up, dated the 18th
April, 1891, the affidavit of, ftc.. It is ordered that the shenfE of the
county of London be at liberty to proceed to a sale of the goods of
the British, &c. Ooy, Limtd, seized under an execution issued on a
judgment recovered in an action, ** W. v. The British, Sfc. Co., Limtd,
1898, W. No. 528," and that the sum of 8/. 10*. 4c?., for the assessed
costs of the applicants, be added to the sd judgment. British and
Foreign Refrigerating Co., 1891, B. 0100, North, J., 22nd May, 1891.
A. 636.



Perm 883. Upon the applicon of J. Brothers, the defendants in the action hnftr
Liberty to mentd, and upon hearing the solors for the applicants and for the
o^^OTdaim *^^®"^*°^®^ ^7* ^^ ^V^^ reading the two several orders, dated, &c.,
in action hj iK^ctde in the sd matters, the writ of summons issued in the action
the company. Imftr mentd on the 16th May, 1885, the statement of claim delivered
on the 12th Aug. 1885, the statement of defence delivered on the 9th
Nov. 1885, the reply delivered on the 14th Nov. 1885, and the notice
of trial delivered on the 10th Dec. 1885, all in the sd action, the afffc
of A., made in the sd matters, and filed the 5th May, 1886, and the
two several exhibits, &c.. It is ordered that the applicants be at liberty,
pursuant to the Cos Act, 1862, s. 87, to proceed by way of counter-
claim in the action of '' E. Coy, Limtd, against /. Brother's, High Otof
Justice, Q. B. Div. 1885, E. 576," to recover against the sd E. Coy,

Limtd, the sum of /. for the price of four cases of cigars (less

certain credits) sold by the sd applicants to the sd coy on the 5th day
of March, 1 884. And it is ordered that this order be without prejudice



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LIBEBTY TO SUE AND PROCEED AGAINST COMPANY. 419

to any question in the sd action. Eberle^s Hotels, Sfc. Co.^ Pearson, J.,
6th May, 1886.

See, howeyer, Mertey Steel Co. t. Naylor, 9 App. Cas. 434, that where a oompanj
is smug it is not necessary to obtain leave to connter-olaim for unliquidated
damages.



Upon the applicon by summons dated, &c., of the Comity Ooimeil Perm 383a.
of the County of Lanark, and upon hearing, &c., Order that, notwith- Liberty to
standing the order of this Ct, dated, Ac, the applicants be at liberty county
to commence and prosecute in the Sheriff Ot of L., or other the proper ^^^^^ Scotch
Ct in Scotland, proceedings under the Eivers Pollution Prevention proceedings
Acts, 1876 and 1893, against the coy and its liqrs to restrain the tiono?^

pollution, by it or them, of a stream known as , or any other stream.

stream in the sd county, and for the costs of such proceedings. And
order that the costs of the applicants relating to this applicon be taxed
and pd by the liqrs out of the assets of the coy. Ctdedonian Mineral
Oil Co,, 0057 of 1897, Wright, J., 23rd Jan. 1899.



Upon the applicon by summons, dated, &c., of the aboye-named Form 383b.
dft, the Leeds, &c., and upon hearing the solors for the applicant, and g^ ^^^^
for the pit, the Consolidated, &c. Coy, and upon reading the afft of £., on fund in
filed, &c., and the exhibit, &c.. Order that no part of the 2,458/., money ^'^•
on deposit into Ct to the credit of this action, Re, ^c, which the pit
coy and M., its liqr, is or may become entitled to in this action, or of
any interest to accrue thereon, be transferred, pd out, or otherwise dis-
posed of without notice to the dft. The Leeds, Sfc, Consolidated Explora-
tion, Sfc, on behalf, Sfc, y. Leeds and Hanley Theatres of Varieties^
Limtd, and others, Wright, J., 19 Dec. 1900.



E B 2



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420



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



CHAPTER XXXV.



landlords; distress; re-entry; rates.



Distress after

winding-up

restrained.



He-entry*



Sentaoomed
after wind-
ing-up.



Seb sects. 85, 87 and 163 of 1862, set out in Chaps. XXXIII., XXXIV.

As to sects. 87 and 163 being read together, see Eigginshaw Mills and Spinning Co.,
(1896) 2 Ch.- 644, 661.

Where after the commencement of a winding-up a landlord or other party
threatens to levy or proceeds to levy a distress for rent, tolls, rates, or the like, on
the company's property, in respect of rent, &c. accrued before the commencement
of the winding-up, the Court will restrain him. Oak Pitt Gollitry Co^y 21 C. Div.
822, and cases there cited.

But in such case the landlord may, if he has a power of re-entry, apply for liberty
to exercise the same, and the Court will give liberty accordingly, without putting
him to the trouble of bringing an action. General Share Trust, 20 C. Div; 266.
Where the property ia of greater value than the rent due, such an application in
effect may compel the payment of the rent in arrear.

And where there is no privity between the company and the landlord {e.g., where
the company is sub-lessee or mortgagee by deposit), he will not be restrained.
Zundg Granite Co., 6 Ch. 462 ; Megent United Service Stares, 8 C. D. 616 ; Carriage
Co-operative, 23 C. D. 164.

As regards rent, &c. accrued after the commencement of the winding-up, the
landlord or other person claiming a right to distrain therefor should apply for
liberty to distrain, and the Court will give him such liberty, or direct the payment
of the rent where it is shown that possession has been retained for the benefit of the
winding-up. Lundy Granite Co,, supra; North Yorkshire Iron Co,, 7 C D. 661 ;
Oak Pits Colliery Co., 21 C. Div. 322. And see proviso to R. 99 of 1903, itrfra, p. 441.

Where the liquidator abandons possession and gives notice to the landlord, or
unconditionally offers him possession, possession cannot be deemed to be kept for
the benefit of the liquidation. Blackburn District Society, 42 C. D. 343. A surety
I>aying a landlord cannot distrain. JRe Russell, 29 C. D. 267.

But liberty will not be given where possession has been retained, with the
acquiescence of the landlord, for the benefit of all parties. Progress Co., 9 Eq. 370 ;
Bridgewater Co., 22 C. D. 181 ; Lancashire Cotton Co., 35 C. D. 666. Migginshaw
Mills and Spinning Co., supra, the case of a mortgagee asking leave to distrain for
interest, a position which is not so favourable as that of a landlord. However, if
the landlord applies for liberty to re-enter, it may be necessary to pay him in full.
See General Share Trust, 20 C. Div. 266. Under the Apportionment Act, 1870,
rent is deemed to accrue de die in diem. South Kensington Stores, 17 C. D. 161.
Moreover, the landlord will not be restrained where, by reason of incumbrances,
the liquidator has no interest in the chattels. New City Constitutional Club, Ex parte
Purssell, 34 C. D. 646 ; on App. 66 L. T. 792 ; and see Roundxcood Colliery Co., (1897)
1 Ch. 373 ; 13 T. L. R. 175 ; and the non-appointment of a receiver by the inonm-



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lANDLORDS; DISTRESS; RE-ENTRY; RATES. .421

.biiAiioers wheore they are debenture holders with a fioatiDg Beonrity nuLkes no
difference. Sarpur's Cycle Fittings Co,y (1900) 2 Qh. 731, where the Court declined
,to follow MxparU Clemenee, 23 C. D. 154.

Sect. 10 of the Judicature Act, 1875, introducing the bankruptcy rules, does not
give a landlord priority in winding-up. Thomas v. Lionite Co.\ 17 C. Piv. 250.
He is not a secured creditor in England {8, C), though he is in Scotland. Wanzcr^
limited, (1891) 1 Ch. 305.

Subject as above, the Ck)urt restrains distress, whether the winding-np be com*
pulsory, under supervision, or voluntary.

A landlord restrained can, of course, go in and prove in the winding-up. Thmuu •
y. Zionite Co,, ubi supra.

It will be borne in mind that the commencement of the winding-up is (1) in com- Commence-
pulsory winding-up, the presentation of the petition, even where there has been a ™f>ij of
previous resolution for voluntary winding-up (see Taurine Co., 26 C. D. 118) ; (2) in ®'' ^*

voluntary vnnding-up, the passing of the resolution ; (3) in supervision, the same.
See supra, p. 4 et seq,

A solvent company will not be permitted in winding-up to distribute its assets Future rent,
without regard to its landlord's right to future rent. Gooeh v. London Banking
Association, 32 C. Div. 41 ; Lord Mphinsione v. Monkland Co,, 11 App. Cas. 332;
and see Oppenheimer v. British and Foreign Bank, 6 0. D. 744 ; and Westhourfie
Grove Drapery Co., 5 C. D. 248, where a fund was required to be set apart.

But in the case of an insolvent company it was held (before sect. 10 of the Judi-
cature Act, 1875) that a landlord could not prove for future rent, and could only
enter a daim for the amount {Eaytor Granite Co,, I Ch. 77), and that the existence
of such daim did not prevent the distribution of the assets among the creditors
regardless of such daim. Horsey* s Claim, 5 Eq. 661. And it has recently been
held {New Oriental Bank Corporation (No. 2), (1895) 1 Ch. 763) that this strange
condusion is still gfood law, on the ground that, notwithstanding the wide door
opened by the statute to proofs, and tbe views expressed in Hardy v. Fothergill,
13 App. Cas. 351, there can be no proof for future rent unless the lease has been dis-
claimed, which in winding-up is not allowable. Quare, however, whether this is a
sound reason, seeing that where Company A. holds shares in Company B., the latter
can (without disclaimer) prove in the winding-up of the former for future calls.
See, also, Craig's Claim, (1895) 1 Ch. 267.

And in a later case (Panther Lead Co.) it was pointed out that in New Oriental
Bank Corporation (No. 2), supra, the lessors had refused to let the lease be given up
and prove for the loss ; and it was hdd by Romer, J., that the Court should assist
a landlord desiring to prove at once for his loss on the footing of his lease to an
insolvent company being treated as determined ; and that the old cases required
reconsideration. Panther Lead Co., (1896) 1 Ch. 978 ; Form 392b, infra. Leave to
prove on this footing was given by Buckley, J., in Henry Lovxbond ^ Sons, July SO,
1908. As to measure of damages, see Llynvi Coal Co,, 7 Ch. 28.

As to the proof to be made when the rent is payable in advance, see Shackell ^ Co,
V. Chorlton ^ Sons, (1895) 1 Ch. 378 ; and, where a leasdiold term is determinable
at an earlier date, Oriental Bank Corporation (No. 2), ubi sup,; but this case was
afterwards compromised.

Preferential Payments, fto. Act, 1888, s. 1 (4).— In the event of a landlord or other
person distraining or having distrained on any g^oods or effects of a ... . company
being wound up within three months next before the date of the .... winding-up
t>rder .... the debt to which priority is given by this section shall be a first
charge on the goods or effects so distrained op, or the proceeds of the sale thereof.
Provided, that in respect of any money paid under any sudi charge the landlord or



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423



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



other perEon shall have the same rights of priority as the person to whom snoh pay«
ment is made. See Chap. XXX Vli.

Landlords should bear in mind that a reoeiYer for debenture holders maj be under
no liability to pay rent or compensation for oocnpation. Hand y, Slow, (1901)
2 Oh. 721.



Form 384.

Interim
injunction
against
selling under
distress.



Bestraining Distress.

Upon motion this day for liqrs of coy, and upon reading afi^ &c.,
and the ed liqrs by their counsel undertaking to abide by any order
this Ct may make as to damages in case this Ct should hereafter be of

opinion that W. H., of , sball have sustained any by reason of

the order which the sd liqrs ought to pay, This Ct doth order that W.
and J., their servants, agents and workmen, be restrained until the
dOth May, 1884, from selling the goods and chattels distrained upon
on the leasehold premises of the coy, and liqrs to be at liberty to
serve notice of motion for injunction for 30th May, 1884. Ince Hall
Co., Chitty, J., 28th May, 1884. A. 737.



Another.



Form 386. Upon motion by prov off liqr, &c., Eestrain the South Staffordshire
Mines Commissioners from selling any goods of the coy distrained by
them, or otherwise proceeding with the distress levied by them on the
goods of the coy until, &o. Oakham CollierieB Co., M. H., 10th July,
1880. And see Automatic ASration Co., 0125 of 1892. Beg., 3rd Deo.
1892.



Form 386.

Order
continuing
injunction,
and directing
delivery of
goods.



Upon the applicon of the prov liqrs, and upon hearing the solor for
the applicants and for the landlord, and upon reading the order dated
17th May, 1883, and the afft of W., and the order of 19th May, 1883,
Order that the order made in this matter, and dated 19th May, 1883
[interim order against selling under distress^ be continued until further
order of this Ct. And it is further ordered that the sd H. do deliver
up possession of the good& and chattels belonging to the sd coy upon
which he has distrained to the sd prov liqr. Art Furnishers^ Co.^
Pearson, J., 23rd May, 1883. A. 782.



Form S86a. Upon motion made, &c., on behalf of G., the liqr in the voluntary
winding-up of the above-named coy, and upon hearing, &c.. It is
ordered that the sd L. B. be and he is hereby restrained from further
proceeding with the distress levied by him on the goods of the above-
named coy, and from levying any other distress on the goods of the
sd coy before 8th May, 1902, and L. to pay the liqr his costs of



Order

restraining

distress.



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LANDLOfiDS; DISTBE8S ; BE-ENTRY; BATES. 423

motion, to be taxed, but on such motion the sd G. is to be allowed no
more costs than he would have been entid to had this proceeding
been brought in a County Ot. Lockyer^s Private Hotel Co., Buckley, J.,
lOih June, 1902.



Upon motion made, &c., on behalf of B., the off recr and liqr of Form 386b.
the above-named counsel, and upon hearing counsel for the applicant, ~
and no one appearing for or on behalf of S., although he has been landlord to
duly served with notice of motion as by the afft appears, and upon P*y ^^^
reading the order to wind up, &c., Order that S., the landlord of the ^\

premises situate at , of which the above-named coy were tenants,

do within seven days after service of this order being made pay to the
sd B. the sum of 46/. 5s. 6d,y being the alleged balance of the amount
of the proceeds of the sale of the goods and chattels belonging to the
above-named coy upon which he has distrained, and Order S. to pay
B. the further simi of 17/. 12«. 6c/., being the amount of the applicant's



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 55 of 152)