Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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books, as in Form 100.

As regards opposed cases, the evidence to fix the alleged contributory is prodooed,
and then the alleged contributory produces his evidence in opposition.

The evidence is usually by affidavit, and when the liquidator has gone into it he
gives his decision. The liquidator in deciding diould have due regard to the evi-
dence and the law. In a proper case the name should be struck off. Where it is
dear that the alleged contributory is liable he should of course be settled on the
list. Where it is doubtful whether he is liable he diould, as a general rule, be
setded on the list, and left to take steps under Rule 83 of 1903 to have the list
varied. Sometimes, however, when the liability of a dass is in questicm, it is con-
venient to issue a summons asking for a declaration of liability, but even then it
is wrong to add a claim for payment ol the amount. Payment should be obtained
in the manner pointed out bdow. £. /. Wragg, Limited, (1897) 1 Ch. 796, 802.
If the contributory thinks fit he can wait until the certificate has been filed, and
within twenty-one days after notice that he has been placed on the list finally, take
out a summons to vary the list. R. 83 of 1903. As to discovery, infra.

If an alleged contributory is dissatisfied with the liquidator's decision he may
take out a summons at once to strike his name off the list, and if necessary, the
summons is adjourned into Court. See Forms 461, 464.

The liquidator appears to have no power to make any order as to costs, dtber in
favour of or against a contributory ; but there seems to be no reason why an alleged
contributory who has successfully disputed his liability diould not apply in the
winding-up for payment of his costs ; but only out of the assets— not against the
liquidator personally. SoMmry-Jwrn and DM 9 ease (2), (1895) 1 Ch. 288.



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OONTBIBUTORIES. 517

{Title.) Form 456.

I, A. B., a derk in the department of the off recr in cos liquidation Affidavit of
[or as the case may be"], make oath and say as follows : — notloM^of

1. That I did on the day of , 19—, send to each con- appointment

tributory mentd in the list of contributories made out by the off recr ^f oontribu-
and liqr [or by 0. D., the liqr of the above-named coy] on the toriee.

day of , 19 — , and now on the file of proceedings of the above- ^^""^ ** ^

named coy, at the address appearing in such list, a notice of the time
and the place of the appointment to settle a list of contributories in the
form hereunto annexed, marked '* A," except that in the tabular form
at the foot of such copies resply I inserted the number, name, address,
description, in what character included and number of shares [or
extent of interest] of the person on whom such copy of the said notice
was served.

2. That I sent the said notices by putting the same prepaid into the

poet office at , before the hour of o'clock in the noon on

the sd day l_or where the off recr is liqr, that I sent the said notices by
putting the same into the official letter bag provided by the Postmaster-
General for the department of the off recr in cos liquidation, before
the hour of 5.30 o'clock in the afternoon of the sd day].

Sworn at , in the county of

Middlesex, this day of ,

19—.

Before me, X. Y., a Commissioner to administer Oaths in the
Supreme Court of Judicature in England.

The above is the form used when the offioial receiyer is Hqnidator, and is based
on Form 27 of 1862. The exhibit A. is, under the present practice, a copy of the
ndtioe sent to the particular contributory.



(Title.) Perm 466.

Pursuant to the Cos Acts, 1862 to 1900, and to the Bules made Certificate of
thereunder, I, the undersigned, being the liqr of the above-named ^Ssett'e-
coy, hby certify that the result of the settlement of the list of con- ment of tihe
tributories of the above-named coy, so far as the sd list has been ^ij^Jori<M
settled, up to the date of this certificate, is as follows : — porm 45 of

1. The several persons whose names are set forth in the second 1^03, See
column of the First Schedule hto have been included in the sd list of ^qqI^
oontributories as contributories of the sd coy in respect of the number
of shares [^or extent of interest] set opposite the names of such con-
tributories resply in the sd schedule. I have, in the first part of the
sd schedule, distinguished such of the said several persons included in
the sd list as are contributories in their own right. I have, in the



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618



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



second part of the sd schedule, distmguished such of the sd Beveral
persons included in the sd list as are contributories as being represen-
tatives of or being liable to the debts of others.

2. The several persons whose names are set forth in the second
column of the Secon.d Schedule hto have been excluded from the sd
list of contributories.

3. I have, in the seventh column of the sd First and Second Schedules,
set forth opposite the name of each of the several persons resply the
date when such person was included iu or excluded from the sd list of
contributories.

4. Before settling the sd list, I was satisfied by the aflft of ,

derk to , duly filed with the proceedings herein, that notice was

duly sent by post to each of the persons mentd in the sd list, informing
him that he was included in such list in the character and for the
number of shares \_or extent of interest] stated therein, and of the day
appointed for finally settling the sd list.

[2b ihi8, in practice^ are annexed three eaparaie sheetSf aefoUowe :]

In Idle matter of the Ooy, Limtd.

The FiBST Schedule above referred to.

FmST PaET — GOKTBIBUTORIBS IN THEIB OWN ElGHT.



Serial

Number in

List.



Name.



Addieo.



Deeoription.



In what
character
indnded.



Number of

Shares (or extent

of Interest).



Date when

tfM»iT)j df!'^ ii

the list



Serial
nmnber.



In the matter of the Ooy, limtd.

The First Schedule above referred to.

Second Part — Contributories as being Eepresentatives of or
Liable to the Debts of Others.

[^Here follow seven columns, headed as aboveJ]

In the matter of the Ooy, Limtd.

The Seoond Schedule above referred to.

[^Here follow seven columns, hettded as above, except that column 5 is
headed " In what character proposed to be included," and column 7 is
headed ** Date when excluded from the list."]

Dated this day of , 19 — .

(Signed) , liqr.

In the abore fozm each contributory ahoold have the aerial number origSnalTy



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00NTBIBUT0BIE8.



S19



aflngned to him in Form 453, and the names in each division shotild be in alphabetical

order according to surnames. Under the old practice it was usual to add a further

paragraph where necessary, stating that ** the several persons whose names are set

forth in the third schedule hereto are alleged to be contributories, but these cases Cases left

have not yet been adjudicated on " ; so that when a call was made it might be seen open.

that the disputes, even if settled in favour of the liquidator, would not reduce the call.



In the matter of the Oompanies Aots, 1862 to 1900,
and

In the matter of .

Take notice that I, [A. B. C, off recr], the liqr of the above-
named coy, have, by certificate dated the day of , 19 — ,

under my hand, finally settled the list of contributories of the sd coy,
and that you are included in such list in the character and for the
number of shares [^or extent of interest] stated below.

Any applioon by you to vary the sd list of contributories, or that
your name may be excluded therefrom, must be made by you to the
Ct [by summons] within twenty-one days from the service on you of
this notice, or the same will not be entertained.

The sd list may be inspected by you at my office at [^siaie (uidress],
on any day between the hours of ten and two o'clock.

Dated this day of , 19 — .

A. B. 0., lOfrecr and'] liqr.
To Mr. [or to Mr. ^ his solor].



Form 457.

Notice to
contributory
of final settle-
ment of list
of contribu-
tories, and
that his name
is included. *
Form 46 of
1903.



No. in
list.



Name.



Address.



Description.



In what
character
included.



Number of Shares

ipr extent ol

Interest).



Having regard to Rule 83, infrat the words " by summons " should be inserted in
the aboye form.

See Bules 83, 84, and 85 of 1903, »upra.



{Title.) Perm 468.

I, , of [No. 33, Carey Street, Lincoln's Inn, London, W.O.], Affidavit of""

clerk to [the off recr and liqr of the above-named coy], make oath and service of

J. ,, notice to con-

say as follows :— tributory.

[la. The first six columns of the schedule now produced and shown to Form 48 of

me and marked with the letter '* A," contain a true! copy of the list of ^®^^-



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520 WINDING-UP BY THE COURT. [ChAP. XXXVIII.

contributories of the sd coy, made out by the [off recr and] liqr of the

coy on the day of , 19 — , and now on the file of pioceedingB

of the sd coy, as I know from having, on the day of , 19 — ,

examined and compared the sd schedule with the sd list.]

1. I did on the day of , 19 — , in the manner hnftr mentd,

serve a true copy of the notice now produced and shown to me and
marked " A," upon each of the respive persons whose names, addresses,
and descriptions appear in the second, third, and fourth oolumns of
the First Schedule to the list of contributories of the sd coy made out by

the [off recr and] liqr of the coy on the day of , and now on the

file of proceedings of the sd coy, except that in the tabular form at the
foot of such copies resply I inserted the number on list, name, address,
description, in what character included, and number of shares [or
extent of interest] of the person on whom such copy of the sd notioe
was served, in the same words and fig^es as the same parlars are set
forth in the sd schedule marked *' A."

2. I served the sd respive copies of the sd notioe by putting such
copies resply [into envelopes^, duly addressed to such persons resply,
according to their respive names and addresses appearing in the sd
schedule marked ''A," [b^ placing the same prepaid in the post office

at , before the hour of o'clock in the noon of the sd

day of , 19 — .]

Sworn, &c.

Para, la of the above form does not appear in Form 48 of 1903, bnt in the oaae
of an outside liquidator it is commonly inserted, and in the next paragraph the
reference is to the oolunms of ** the schedule marked A,*' and the schedule will ran
as below.



Form 469.



'A."



The schedule This Schedule marked '' A '' was produced and shown to , and

refened to in jg the same schedule as is referred to in his afft sworn before me this
last form. _ .

day of , 19—.

{Signed) .



Number
on List.



2.
Name.



3.
Address.



Description.



6.

In what
character
included.



6.

Number of Shares

(or extent of

Interest).



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CONlllIBUTOEIES. 521

{TiiU,) Form 460.

1. The following is a list of persons who, since making out the list of Supplemental

contributories herein, dated the day of , 19 — , I have ascer- tributories.

tained are, or have been, holders of shares in [or members of] the Form 47 of
above-named ooy, and to the best of my judgment are contributories ^^^3.

of the sd coy : —

2. The sd supplemental list contains the names of such persons,
together with their respive addresses and the number of shares [or
extent of interest] to be attributed to each.

3. In the first part of the sd list such of the sd persons as are con-
tributories in their own right are distinguished.

4. In the second part of the said list such of the sd persons as are
contributories as being representatives of, or being liable to the debts
of others, are distinguished.

Dated the day of , 19 — .

[_Offrecr aruf] Uqr,

\_ThB supplemental list is to he made out in the same form as original list.^

The above \a Form 49 of 1903, as varied when the official receiver acts as liqui-
dator. In Form 49, the clause beginning '* The following " is numbered 1, and the
following dauses are numbered 2, 3, 4.



Let, &c. [see Form 10], on the hearing of an applicon on the part of Form 461.

A. B., of , for an order that the list of contributories of the above- Summons to"

named coy, and the liqr's certificate finally settling the same, may be rectify list,
varied by excluding the name of the applicant therefrom, and that the
liqr may be ordered to pay to the applicant the costs of this applicon.



I, &C.J make oath and say as follows : — Form 462.

1. On the day of I received from the liqr of the above- Affidavit on"

named coy a notice that he had included me in the list of oontribu- application to
tones of the above-named ooy. The sd notice is now exhibited to me '^^^'^'^
marked .

2. In response to the sd notice I wrote and sent to the sd liqr a
letter informing him of the fact that I was not a shareholder in the
sd coy, and that I had never agreed to take any shares therein or
authorized the placing of my name on the register of members, and
that I protested against my name being included in the list of con-
tributories. A copy of my sd letter is now exhibited to me marked .

8. On the -^ — of I received from the sd liqr the notice

exhibited to me marked , from which it appears that the sd liqr

has in fact included me in the sd list as a present member in respect
of shares.



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622



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

i. I am not, and never have been, a member of the sd coy. I never
applied for or authorized any other person to apply on my behalf for
shares in the sd coy, and I never received any notice of allotment of
shares, and I w£i8 not aware until I received the notice referred to in
the first paragraph of this aM that there w£i8 any suggestion that I
was a member of the sd coy.

5. I understand that it is alleged that B., of , applied for the

sd shares in my name and on my behalf, but I say that if this be

so, the applicon was made without my knowledge or authority, and
that I have never adopted or ratified the act.

The above form is only an example. The contents of the affidavit will vary with
the facts of each case.



Form 463.

Order on ap-
plication to
vary list of
contribn-
tories.
Form 49 of
1890.



Costs.



(Title.)

Upon the applicon of W. N. to review or vary the list of contribu-
tories of the sd coy in respect of the inclusion of the sd W. N. therein,
and that his name may be excluded therefrom [or as the caee may be"],
and upon hearing, &c., and upon reading, &c.. It is ordered that the
name of the sd W. N. be excluded from the sd list of oontributories,

or may be included in the sd list of contributories for shares [or

as the case may he"] [or the Ct doth not think fit to make any order on
the sd applicon, except that the said W. N. do pay to the liqr of the sd

coy his costs of this applicon, to be taxed by in case the parties

differ].

This is practically identical with the Form (32 of 1862) of order on an application
to vary the list.

The costs of a person unsocoessfolly dispnting his liability as a oontribatoxy
mnst, as a. role, be paid by the contribatory. OowerU eate, 6 £q. 77 ; Andrew*8
ease, 3 Oh. 161.

If the alleged contribatory snooessfally disputes his liability, he will get his costs.
ITation^s ease, 3 Eq. 77, and Forms 464 and 465, mfrtk As to the form of order
and priority, if costs are given him, Salisbury ^Jonet^ ease (2), (1895) 1 (2h. 833;
L<mdon MetaUurgieal Co., (1895) 1 Ch. 758; H(me Investment Co,, 14 G. D. 167;
Dominion of Canada Co., 27 C. Div. 33 ; North Buckley Co., 24 S. J. 835.

For ordor varying supplemental list, see Syria Ottoman Bail. Co, (00186 of 1894),
Hood, Reg., 19th Nov., 1895.



Order to
strike off.



Form 46i. Upon the applicon of S., &c., Order that the name of the sd 8. be
struck off the list of contributories of the sd coy ; And order that B.,
the off liqr, pay to the sd S. his costs of this applicon to be taxed ; And
ord^ that the off liqr be allowed the amoimt so pd out of the assets of
the coy. Land Loan, ^c. Co., Kay, J., 5th April, 1886. B. 447.

Very commonly the order in sach cases directs the liquidator to pay the costs out



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CONTKIBUTORIES. 523

(if the a8»eti of the company, and to be allowed the same. See 8elf-Aeting Setoing
Machine Go., Pearson, J., 6th April, 1886. B. 454 ; Marseillee Rail. Co., 30 Gh. D.
598 ; Ex parte Bentley, 12 Oh. D. 857 ; SaHebmy-Jonea' ease (2), eupra.



Upon the applioon of Mrs. E. L., of, &c., married woman, by sum- Form 465.



mens, dated the 20th May, 1892, and upon hearing the solors for the Order vi



applicant, and C. J. S., the off recr and liqr of the above-named coy, ^S ! ,
appearing in person, and upon reading the certificate of the [assistant] certiftoate
off recr [acting for the sd off recr and liqr], dated the 5th day of May, settling Ust
1892, It is ordered that the sd [assistant] off recr's certificate be varied tories.
by excluding the name of the applicant from the first part of the first
schedule to such certificate. And it is ordered that the sd 0. J. S.,
as such off recr and liqr, do out of the assets of the sd coy pay to the
applicant the sum of 2L 2s, for the ascertained amount of her costs of
this applicon. Groomhridge and Sons (1891, G. 44), Chitty, J., 24th
May, 1892. A. 832. And see Washington Diamofid Co, (1891, W.
0309), V. Williams, J., 19th May, 1893.



Upon the applicon of D., &c., and upon hearing, &c.. It is ordered Form 466.
that [name be excluded]. And it is ordered that the [off] liqr do pay Order vary-
to the sd D. 16/. lOs, Id,, the ascertained costs of the sd D. of this ing certificate
appHcon. Bryn-y-F/eran Co,, Bacon, V.-O., 10th April, 1883. A. 612. ^J'*^''^^

Under the old pnuitioe the oertifioate of the chief clerk was not phynoally altered.
Fox T. Bearblock, 30 W. B. 842.



Upon the applicon of the [off] liqr of coy to settle the list of con- Form 467.
tributories made out by him and left at the chambers of the Mcwter of Mother ordw

the Bolls, wherein the name of E., of , has been included as a to strike name

memb^ holding twenty-four shares, to fix the name of the sd E. upon ^ ^^'
Budi list, and upon reading, &c., Ord^ that the name of the sd E. be
struck off the list of contributories for unpaid shares. And order that
the sd [off] liqr do pay to the sd E. the sum of 14/. 10«. 6(/., being the
ascertained amount of his costs of this applicon. SotUhiea Floral Hall
Co., M. B., 26th June, 1877. B. 1453.



IJpon the applicon d F. by summons, dated, &c., and upon hearing porm 468.
the solors for the applicant and B. the off recr and liqr of the above-



named ooy in person, and upon reading the order to wind up the sd r^^^
ooy, dated, &c., and the certificate of the sd B. of the settlement of the lorm.)



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S24 WINDING-UP BY THE OOUET. [ChAP. XXXVlll-

list of contributories of the sd 007, dated, &c.. It is ordered that the
list of contributories of the sd coy and the liqr's certificate finally
settling the same be varied by excluding the name of the sd applicant
therefrom. British Gokf/ields of West Africa, 00363 of 1897, Hood,
Eeg., Oct. 24th, 1898.



Form 469. Upon the applicon of T. to review [or vary] the list of contributories
Order to place ^^ ^7 ^ respect of the inclusion of the sd T. therein as an unpd share-
name in liBt holder, and that his name might be struck out or entered as a fully
flhara oidT. P^'^p shareholder, and upon hearing the solors for the applicant and
for the [off] liqr, &c. [^adfournment into CV], Order that the name of
the applicant be placed in the sd list for 150 pd-up shares only. And
order that the costs of the applicant and the sd [off] liqr be taxed, &c,,
and pd out of assets of coy. Eupion Fuel and Gas Co., Malins, Y.-C,
17th March, 1877. A. 597.

The list itself does not now state whether shares folly paid or not, see Form 456.



Form 470. The applicon, &c., the Ct doth declare that the shares of /.

Order decliu>~ ^ ^® above-named coy, numbered from to , both indusiye,

ing that standing in the name of the applicant P., were at the date of the order

L^d. ^ to wind up the above-named coy fully pd up and are to be deemed
in favour of the applicant so to be, and that the sd applicant is under
no liability in respect thof . And it is ordered that the sd W., aa such
off recr and liqr, do pay out of the assets of the above-named ooy to
the sd P. his costs of the sd applicon, such costs to be taxed. Building
Estates Brickfields Co. (002 of 1894), Yaughan Williams, J., 8th Nov.,
1895; Parhury's case, (1896) 1 Oh. 100.



Form 471. On the applicon of the ofi^ liqr to settle the list of contributories so

Order against ^^ BB regards the G. Coy (placed on the list as a contributory in

objection of respect of 10,000 shares), and upon hearing, &c., this Ot being of

oompany (in opinion that the sd G. Ooy is properly placed on the list of oontribu-

Hqmdation) tones of the sd Indian Ooy in respect of 10,000 shares, Doth order

as oontribu- ^^t it be referred to the Taxing Master to tax the costs of the appli-

^*^' cant of the sd applicon in Ohambers so far as relates to the sd G. Ooy,

and occasioned by the adjournment thof into Ot. And the off liqr of

the sd Indian Ooy is to cany in a claim for payment of his sd costs

in the winding-up of the G. Ooy, limtd, but so far as such costs shall

be recovered by him as afsd such costs are to be his costs in the

winding-up of the sd Indian Ooy. Indian^ ^c. Gold Mining Co,,

Ohitty, J., 26th Jan. 1886.



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CONTRIBUTORIES. 526

Upon the applicon of tlie [off] liqr, &c., Order that the sd W. 8. Form 472.
and 8. be and they are hby settled upon the list of contributories of Order to settle
the sd sodeiy as the exors of the sd 8., deed, in respect of £fty shares exeoutors on
held by him in the sd society. Crown Co-operative Society, M. R.,
20th Jan. 1877. A. 437.



Upon the applicon of off recr and liqr by smnmons, &c., It is Form 473.

ordered that the register of shareholders of the Coy be rectified Order rectify-

by adding thereto the name of K. as the holder of 100 shares of the Ing register

above-named coy, nmnbered to , both indusive, in the place ^,^|^ pif^e

of the name of 8., whose name has by the sd order dated, &c., been of oontribu-
removed from the list of contributories of the above-named coy. House ^^jg^ °
and Land Investment Trust, 00117 of 1892. Reg., 21st Nov. 1893.



Upon motion by way of appeal this day made unto this Ot by A. Form 474.
in person, and upon hearing counsel for the liqr of coy, and upon ^~T
reading the order dated 15th July, 1876, Order that tiie sd order, appeal
whereby it was ordered that the name of the sd A. should be placed '®v«™"*fir-
upon the list of contributories of the sd coy in respect of 3,520 shares
therein, upon which nothing has been pd, be discharged. And
dedare that the sd A. held and holds the sd shares £is fully pd up.
And order (he so desiring) that his name be not placed on the list of
contributories of the sd coy in respect of the sd shares or any of them.
And order that the liqr of sd coy do pay to the sd A. his costs of and
occasioned by the sd order, including his costs of this applicon, such
costs to be taxed by the Taxing Master. Wedgewood Coal, Sfc, Coy,
Anderson^ s case. Court of Appeal, 14th Nov., 1877. B. 2021. 8ee also
report in 7 Ch. Div. 75.



Upon the applicon of T., &c., contributories of the above-named Form 475.
coy, and upon hearing, &c., and upon reading, &c., the judge doth Orderthat
order that the applicants, their accountants, agents, and solors be contribntorieH
at liberty at all reasonable times upon giving three days' notice to ^k^^c*'*
inspect and peruse at the office of N., the sd off liqr of the above- of company.

named coy, situate at , in the City of London, and at the offices of

the coy, situate at , and at the respective branch offices of

the sd coy, all books and papers of the coy at such offices in the pos-
session, custody, or power of the sd N., as off liqr of the coy, and be
at liberty to take abstracts thof or extracts therefrom as they may be
advised at their expense. Irwell India Rubber Works, Bacon, Y.-C,
16th May, 1885.



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526



WINDING-UP BY THE COUKT. [ChAP. XXXVIII,



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 68 of 152)