Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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As to the distribution of profits earned before and after liquidation, see Bridyt-
water Navigation Co., (1891) 2 Oh. 317 ; Bishop v. Smyrna Railway Co., (1895) 2 Oh.
265, 596; Odessa Waterworks Co., (1901) 2 Oh. 190 n. ; CriehUm's Oil Co., (1902)
2 Oh. 86.

The memorandum or articles of association or special contracts may have giyen
some oontributories a preferential right in the distribution of assets. See Fart I.,
8th ed., 659, where the decisions on the subject are more fully dealt with. Some-
times the articles expressly provide for the distribution in a winding-up of the
*^ surplus assets.*' This is not a technical expressiou. The words may mean the
surplus after paying off creditors, or the surplus after paying off creditors and
paid-up capital. The context and circumstances must be considered. See New
Transvaal Co., (1896) 2 Oh. 750; Feabody Mining Co., W. N. (1897) 170. See also
Anglo- Continental Corporation of Western Australia, (1898) 1 Oh. 327; Beeston JPHeu-
matie Tyre Co., W. N. (1898) 34 ; Mutoscope and Biograph Syndicate, (1899) 1 Oh.
896 ; WcUh Whisky Distillery Co., W. N. (1900) 59 ; 16 T. L. R. 246.

As to surplus assets of unlimited company, see DriffieM Oas Light Co., (1898) 1 C5i.
451. As to literary and scientific institutions, see Re Jones ; Clegg v. Ellison, (1898)
2 Oh. 83.

A contributory who is indebted to the company for calls or otherwise will not be
paid a dividend unless he pays up.

Where a call has been made on the B. List (past members), and it eventaally
appears that the contributions of the present members are sufficient, the persons
on the B. List will be entitled preferentially to a return of what they have paid.
Helbert v. Banner, L. R. 5 H. L. 41.

Where it appears that there is a surplus, there is nothing to prevent paid-up
shareholders from coming in and claimiug to be placed on the list.

As to the title of persons claiming under a Scotch sequestration, see l^tieorin
Cotton Press Co., W. N. (1894) 181.

As to right to dividends being statute barred, see Severn, %c, Co,, (1896) I Oh. 559 ;
Cornwall Minerah Rail. Co., (1897) 2 Oh. 74.

Ab to schedule to order for return of capital, see R. 120 of 1903, infra, p. 560,
and Form 533, i^fra, p. 562.



Form 516.

Report of
official re-
ceiver and
liquidator on
summons for
leave to
adjust.



{Full Title and reference to record,)

The off recr and liqr of the above-named coy reports to the Ct as

follows: — (1) The first schedule hereto contains particulars of the

assets of the above-named coy come to the hands of the off recr and

liqr of the sd coy, and also particulars of the payment made by him

in respect of the debts of , and the costs, fees, and charges of

winding-up the affairs thof, which leaves a sum of 267/. 6*. Zd, in
the hands of the off recr available for distribution among the

contributories of the sd coy. (2) persons have been settled

upon the list of contributories of the sd coy in respect of a total



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CONTBIBUTORIES. 653

number of 65 sliares, seven sabsoribers' shares of 1/. each, and 58
ordinary shares of 100/. each ; the second schedule hereto contains the

names and addresses of such persons, with the number of shares

held by them resply, the total amoimts called and pd up in respect of
the shares held by them resply and the amount of the arrears of calls
(if any) due from them resply. (3) The sd sum of 267/. 6«. Sd, is
sufficient to pay a sum of U. per share to aU contributories of the sd
coy holding subscribers' shares, and 5/. per share to aU contributories
of the sd coy holding ordinary shares, upon whose shares in each case
are no arrears of calls impaid. Dated the day of February, 1 897.

In ooxmeotion with this form and the snmmonB below (Form 622), three other
forms are naed in the official receiver's office, viz. : — ~-y' Nos. 315, 316, and 317.
No. 315 is a '* statement of account to reg^trar on application for leave to make a
return to contributories." It is a debtor and creditor account, showing the position
of the company at the date of the application for leave to make a return to the
contributories. In form it is much the same as the statement in Form 687, in/rOy
Chap. L. No. 316 is a *' list of contributories entitled to a return of capital.'*
It contains ten columns headed— (1) No. in settled list ; (2) Name of contributory ;
(3) Address; (4) Number of shares held; (5) Total called-up value; (6) Total
paid-up value ; (7) Arrears of calls ; (8) Previous returns of capital hj liquidator,

retained for arrears of caUs ; (9) Amount of return payable at per share ;

(10) Net return payable. No. 317 is a ** return list," containing twelve columns,
much the same as in 316, but column one is headed *' Consecutive number," and
column twelve " Bemarks."



Let, &c., for an order that the applicant be at liberty to pay to the Form 617.
contributories of the coy a dividend of 8. in respect of each share ^^ 7~

in respect whereof they are resply contributories, and that the costs, &c. leave to pay

dividends to
It is wise in manj oases to apply to the Court to sanction a dividend, e.g., when sharebolders.
there are disputed cases, or when there are outstanding claims ; and, as mentioned
above (p. 651), the Board of Trade now invariably follow this practice. See next
fonn.



Upon the applioon of B., the off recr and liqr of the above-named Form 517a.
bank, by summons dated, &c., and upon hearing, &c., and upon Leave to pay
reading, &c.. Order that the sd B., as such off recr and liqr as afsd, be interim
at liberty to pay out of the assets of the above-named bank to the ^^^ *^
contributories of the above-named bank entitled thereto an interim
dividend of 3t. 6d. in respect of each share whereof they are resply
contributories. Bank of South Australia^ 00310 of 1894, Hood, Beg.,
Aug. 29, 1898.



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554 WINDING-UP BY THE COUET. [ChAP, XXXVIII,

Form 618. BOABD OF TRADE,

Notice to oon- Department of the Off Recrs in Cob Liquidation,

on the St^of 33, Carey Street, Lincoln's Inn,

intention to London, W.C., , 19—.

apply to Court

to sanction Take notice that I intend to make applicon to the Ct for leave to

return. make a return of capital to shareholders in the above matter.

You are mentd in the coys statement of affairs as a holder of shares

in the character and for the number of shares stated below.

If no sufficient cause is shown by you within twenty-one days from

the date of this notice, for varying such statement, payment will be

made in accordance with the information g^ven below.

G. S. B., OffReer and Liqr.

NoTB. — The ** information '* oonsifits of a schedule in six oolumns, headed respec-
tively "No. in Ust," "Name," "Address," "Description," " In what character
included," " No. of shares or extent of interest." The official number of the form is
No. ^-319.



No. .

Form 619. ITitle as in Form 1.]

Affidavit of I [insert all the names if shares are held in Joint names'], of in

i^ereamo^ *^® county of , make oath and say that I have made a careful

of return is 51, search for the share certificates, the parlars whereof are underwritten,
or upwards. ^ respect of which I have been settled on the list of contributories in
the above matter, but that I have not been able to find the same, and
that I verily believe that the same ha — been lost or mislaid; and I
further say that I have not, nor hath any person by my order, to my
knowledge or belief, for my use, in any manner parted with the sd
share certificates or assigned my legal or beneficial interest therein or
any part thof ; and that I am the person now legaUy and beneficially
interested in the same, and entld to receive for my use all dividends in
respect thof.

Documents above re/erred to.

[Here follow three columns, headed resply " Date," ** Name of
Persons appearing thereon," ** Amoimi"]

Sworn at in the coimty of \

this day of 19 — . | Deponent's signature .

Before me . )

O R.
NoTB.— This form and the next are together officially known as No.^^ 312.



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CONTEIBUTORIES. 666

No. . Form 620.

[Tiile as in Form 1.]

^ -^ Letter of

Sip, — The sliare certificates, full parlars of which are set out in the I^Joo^imy

annexed afft, representing the sum of /. issued to by the last form

above-named {_coi/f corporation^ ^^O* ^ respect of which I was on the 5^,""^ '"^

day of settled on the list of contributories in the above

matter, having been lost or mislaid, I [or we] hby undertake, in conson
of your paying the return of capital to me without production of the
sd share certificates, to indemnify you against all claims which may be
made by any other person or persons in respect of the sd share certiiGl-
cates and from all loss, damage, and expense which the assets of the
above-mentd coy, you, or your exors, admors, or assigns may sustain
by reason of your making any payment to me [or us] in respect of the

sd total sum of /. and if it should hereafter appear that any other

person or persons is entld to the shares represented by the sd share
certificate so lost or mislaid as afsd, or any part thof , I [or we] hby
engage to pay to you all sums of money which such other person or
persons is, are, or may become entld to in respect of such share oertifi-
catesy together with interest thereon at the rate of 5/. p.c. p.a. from the
date of payment of such sum or sums. Dated this day of ?

19—.

Signature .

To the Off Eecr in Cos Liquidation, 33, Carey Street,
Lincoln's Inn, London, W.O.



No. .

[TitU as in Form L] p^^n 521.



I [insert all the names if shares are held in joint names'], of in Statement

the county of , have made a careful search for the share certifi- ^^ ^^.

cates, the parlars whereof are underwritten, in respect of which I have fioate is lost
been settled on the list of contributories in the above matter, but have ^^ot 6/.
not been able to find the same, and I verily believe that the same ha —
been lost or mislaid ; and I further say that I have not in any manner
parted with the sd share certificates or assigned my legal or beneficial
interest therein or any part thof ; and that I am the person now legally
and beneficially interested in the same, and ontld to receive for my use
all dividends in respect thof. And I undertake in consideration of
your paying the return of capital to me without production of the sd
share certificates, to keep you and the above-named coy indemnified
against all claims which may be made by any other person, and all
loss and expense resulting therefrom.



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656



WINDING-UP BY THE OOUBT. [ChAP* XXXVIII.



Documents above referred to.

[^Here follow two columns , headed resply '* Names of Persons appear-
ing thereon,'* " Number of Shares."]

Dated this day of 19—.

Signature .

To the Off Beor in Cos Liquidation, 83, Carey Street,
Lincoln's Lin, London, W.C.

KOTB.— This fonn is officially known as zi^ 312a.

G.A.



Summons
for leave to
adjust rights.



Form 522. Let, &c., on the hearing of an applioon of the off reor, the liqr of the
above-named coy, for an order that he be at liberty to adjust the rights
of the contributories of the sd coy, by paying to the persons named in
the second schedule to his report, dated this day, the sums set opposite
their names in the tenth column of the sd second schedule, by way of
return of capital at the rate of Is, per share to contributories holding
subscribers' shares, and 51. per share to contributories holding ordinary
shares of the sd coy.

The above is the form of a summons issued in February, 1897.



Form 523.

Liberty to
pay dividend
tooontribu-
tories.



Upon the applioon of T. W., the [off recr and] liqr, &c., and upon
hearing the solors for the applicant and for J. B., a contributory of
the sd coy appearing in person, and upon reading, &c., and it appear-
ing that the only contributories of the sd coy holding fully paid-up
shares are those mentd in the second column of the schedule hto,
Order that the sd [off recr and] liqr be at liberty, out of the assets of
the sd coy, to pay the several sums mentd in the eighth column of such
schedule to the sd persons mentd in the second column thof, being a
return of ll«. 6d. per share to such persons as contributories of the sd
coy, after deducting the several sums due from them to the sd coy
mentd in the seventh column of the same sdiedule.



SOHEDTTLE.

Contributories holding paid-up Shares.

[There were eight columns headed respectively — (1) No. on list;
(2) Name; (3) Address; (4) Description; (5) No. of shares; (6)
Amount of return at lU. 6d. per share ; (7) Amount of indebtedness ;
(8) Amount to be paid.] HoUybuth Colliery, Sfc. Co., 10th May, 1877.
A. 1018.



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CONTBIBUTOBIES» 557

Upon the applioon of B., the senior o& recr and liqr of the above- Form 624.
named coy, by summons dated, &c., and upon hearing the applicant in Orderto
person, and the solor for C, a contributory of the sd coy, and for L. adjust rights
of, &c., hnftr named, and upon reading the order to wind up the sd ^^^ " ^"
coy, dated, &c., the report of the applicant made to the Ot and dated,
&c., and the afft of the sd L., filed this day, and the exhibits therein
referred to, It is ordered that the sd o£E recr and liqr be at liberty to
adjust the rights of the contributories of the sd coy by paying to the
persons named in the second schedule to his sd report (other than to
S. and P.) the amounts set opposite their respive names in the tenth
column of the sd second schedule. And it is ordered that the amounts
payable in respect of the 200 founders' preference shares, numbered

to inclusive, standing in the name of the sd S., and the 100,

&c., standing in the name of the sd P. be pd to L. of, &c. £oi/al Trusts^
Assets and Securities Insurance Corporation (1892, B. 0149), Hope,
Eeg., 8rd Oct. 1896.

See notes, aupra^ p. 551.



Upon the applicon, &c., and the Ct being of opinion that the persons Form 526.
named in the first schedule hereto are not, in the events which have Order adjust-
happened, entitled to any share in the assets of the sd coy in the hands ing rights,
of the off recr and liqr, but that P., one of the persons named in the
first schedule hereto, is entitled to receive payment of interest at the

rate of 5 p.c.p.a. (less tax) on the sum of /., from to ,

It is ordered that out of the funds in the hands of the sd off recr and
liqr, after providing for the debts of the sd coy, and the fees, charges,
and expenses of the winding up of the sd coy, he be at liberty to pay
to the sd P. the sd interest, and that he be at liberty to distribute the
balance in his hands amongst the persons named in the second schedule
hereto rateably in proportion to the number of shares held by them
resply. Aldrington Estate Investment Co.y 23rd Deo. 1895, Hood, Eeg.



Upon the applicon of B., the off recr and liqr of the above named Form 526.
coy, and upon hearing the applicant in person, and upon reading the
order to wind-up, &c., and the report of the applicant made to the
Ct and dated, &c., It is ordered that the applicant be at liberty to
pay to the persons named in the second and third schedules to his sd
report (with the exception of the persons hnftr mentd) their proportion
of assets available for distribution mentd in the sd report. And it is
ordered that the applicant do exclude from such distribution the
persons named in the second schedule to his report, and numbered



Another.



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658 WINDING-UP. BY THE OOUET. [ChAP. XXXVIII.

thereon resply, &c, ; and also Mrs. X., mentd in the third echedule to
the sd report, for the reasons stated in the sd report. Canadian Paci^
Colonisation Corp,, 00150, 1B91, Hood, Eeg., Aug. 4, 1B9B.



Form 527.

Another.



Upon, &c., and upon reading, &c., and the order dated, &c., con-
firming the conditional agreement of compromise, dated, &c., and
ordering the same to be carried into effect, It is ordered that the
applicant, as such liqr as afsd, be at liberty to distribute the surplus
assets of the sd coy only amoDg the preference and ordinary share-
holders other than those mentd in the schedule to the sd agreemt
of, &c., and to exclude from such distribution all the persons mentd
in such schedule until such other shareholders shall have been repaid
in full the amounts pd upon the shares held by them resply. CoweU,
Craft Sf Co,, 0096 of 1898, Hood, Eeg., March 8, 1899.



Gall to be
made to
adjust.



Form 527a. Upon the applicon, &c., and upon reading. &c., and the order dated
30th July, 1902, whereby the respt G. was appointed to represent, on
the hearing of the sd summons, all the holders of fully pd shares
and the respt, the sd D., the holders of partly pd shares in the sd coy,
and the afft, &c., and the memdum and arts of asson of the above-
named coy, declare that the liqr ought to make a call on the holders
of the shares in the sd coy not fully pd up for the purpose of equalizing
the amounts pd up on all shares of the sd coy ; and order that the
costs of applicant and of the sd respt of the sd applicon be taxed as
between solor and client and pd by the sd liqr out of the assets of the
sd coy. The Olob^ Minerals Exploration Co., Byrne, J., 11th Aug.
1902.

It is not nnoomiiion to appoint repreeentatiyee of several daasee for deteEmming
their rights in distribution. Wakefield Co,, (1892) 3 Ch. 166.



Form 527b.

Declaration
of rights of
paid-up
shareholders.



On, &c., this Ot doth declare that the contributories of the above-
named coy who are holders of preference shares in the sd coy and who
have been settled on the list of contributories of the sd coy are entld to
repayment in full of the capital paid up by them resply on such shares
in priority to any repayment of capital to the holders of ordinary shares
in the sd coy and to costs. London and Northern Bank, Buckley, J.,
10th Feb. 1902.



Form 627c. Upon the applicon of B., the off liqr of the above-named coy, by
liberty to summons dated, &c., and upon hearing the applicant in person and the



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CONTRIBUTORIES. 559

soloTs for J. B.y the assignee, all calls due from certain of the share- ma^o paj-
holders of the sd coy, and upon reading the order to wind-up the sd ^^tment.
coy, dated, &c., the affidavit of, &c., and the agreed statement of facts,

dated, &c., signed by the sd B. and Messrs. , solors for the sd J. B.,

It is ordered that the sd B., as such off recr and liqr as afsd, be at
liberty to adjust the rights of the contributories inter se by paying to
the persons named in the second schedule to the sd afft of the sd
A. S. 0. the several sums set opposite their respive names in the tenth
oolumn of the sd second schedule. London Universal Bank, Byrne, J.,
23rd Jan. 1902.



Upon the applicon of C, the off liqr of the above-named coy, by Form 528.
summons dated, frc, and upon hearing the solors for the applicant. Order to
and upon reading the order dated, &c., the chief clerk's certificate of ^*^V"?J^
the settlement of the list of contributories dated, &c., the afft of C. of oontribu-
filed, &c., It is ordered that, for the purpose of equalization and toriee.
adjusting the rights of the contributories among themselves, a call of
the respive amounts per share set out in the sixth column of the
schedule hereimder written be made on the shares of the several con-
tributories of the sd coy whose respive names and addresses appear in
the second and third columns of the sd schedule.

And it is ordered that the sd several contributories named in the
schedule hereunder written do within seven days after the service on

them resply of this order pay to the sd C, at his office. No. ,

Street in the Oiiy of London, the respive sums set opposite their
respive names in the seventh oolumn of the sd schedule, such sums
being the amounts due from them resply in respect of the sd call.
Silver VaUey Mines^ Kay, J., 19th Jan. 18B6. B. 136.



The applicon of G. and C, &c. [contributories' representatives]. Form 629#
which upon, &c. [adjournment into Ct], coming on, &c., This Ot being D^ciaratioir"
of opinion that aU moneys received by the [off] liqr of the sd society as to return
by virtue of any compromise with a contributory, are in every case in <>* **"®*8
which such compromises have been made applicable in the first place promise
in or towards payment of the amoimt due from such contributory in ®ff®o*®d.
respect of his subscribed capital of 20/. per share and interest thereon,
and that the residue of such moneys, after payment of what is due
as last afsd, is applicable towards payment of the amount due from
such contributory in respect of the call of 12/. per share, made on
the 28th July, 1873, on any further calls beyond that amount, Doth
order that an account be taken of the proceeds of the call of 12/. per
share made on the 28th July, 1873, come to the hands of the [off]



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56a WINDING-UP BY THE COURT. [ChAP. XXXVIII.

liqr or to the hands ol any other person or persons by his order or
for his use. And it is ordered that the surplus (if any) of the sd
proceeds, after payment thereout of the debts of the society properly
payable thereout, and the costs of the winding-up, be returned to
and divided between such of the contributories as have pd the sd
call of 121, in full, in proportion to the amounts pd by them reeply
in respect of such call. And let the costs of all parties of and inci-
dent to this applicon and consequent thereon be taxed by the taxing-
master, and be pd and retained by the sd [off] liqr out of the assets of
the sd society. International Life Assurance Society, Malins, Y.-C., 9th
June, 1877. A. 1398. See report in 47 L. J. Ch. 88.



Form 630. On the applicon of E., &c., and it appearing that the sd K., as the

Order in legal personal representative of the sd B., has pd all the calls on the

regard to shares standing in his name, Order that any return which may be

to^deceaaed"^ made in respect to the shares standing in the name of the sd B.

contributory, be pd to the sd E. as such legal personal representative. And it is

ordered that the costs of the [off recr and] liqr of and incident to thia

applicon be costs in the winding-up. West of England Bank, Pearson,

J., 1st Dec. 1883. B. 1752.



Form 531. Upon, &c., This Ot doth declare that the preference shareholders are
Order as to exempted from contributing to any loss, by making any payments or suf -
lights and f ering any deduction in respect of any loss, and that for the purpoee of
i^reholders P^J^^ST *^® preference shareholders the full amount of principal and
in unregis- interest up to payment off, each advanced and unadvanced shareholder
tOTedbmlding jjj^g^ contribute (the advanced shareholder by payment, and the unad-
vanced by way of deduction out of any moneys which would otherwise
be repayable to him or her) a just proportion of the whole of the loss,
present and prospective, including so much of such loss as shall fail
to be met by advanced shareholders liable to contribute thereto,
and including also the expenses of winding-up and interest on the
preference shares, until payment in fxill of the amount due in respect
thereof. Reliance Building Society, Chitty, J., 3rd May, 1892. B. 661.
W. N. (1892) 77; 66 L. T. 823.

B. 120 of 1908. — Every order by which the liquidator in a winding-up by the
Court is authorised to make a return to oontributories of the oompanj shall contain
or haye appended thereto a schedule or list (which the liquidator shall prepare)
setting out in tabular form the full names and addresses of the persons to whom the
return is to be paid, and the amount of money payable to each person, and par-
ticulars of the transfers of shares (if any) which have been made by or the variations
in the list of contributories which have arisen since the date of the settlement of the
list of contributories. The schedule or list shall be in the Form 74, with such
Tariations as oiroumstanoes shall require. [See Form 5^3.]



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CONTRIBUTORIES. 661

Cheques are cancelled at the expiration of six months from date of Form 532.
issue, and money orders at the expiration of twelve months from Notice of
month of issue. return to oon-

A fee of U. when the return does not exceed 1/., and 2s. ed, when ^^*^^®^j
the return exceeds 1/., is chargeable on the re-issue after cancellation 1903.



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 72 of 152)