1880. See 28 W. R. 565; 42 L. T.1247; Colonial Assurance to London, Edin- Form 305. burgh, and Glasgow, 1881; Great Britain Mutual to National, 1882. See supra, p. 53, Form of Agreement. REDUCTION OF CONTRACTS. The Life Assurance Companies Act, 1870, s. 22, empowers the Court, in the case of an insolvent company, to reduce the amount of its contracts in the place of making a winding-up order. This power has only been exercised in one case-The Great Britain Mutual Society. There a winding-up order was made by Hall, V.-C., but the Court of Appeal (November, 1880) discharged it, and directed a meeting of policy-holders to be held for the purpose of ascertaining whether they desired the contracts to be reduced, 16 C. D. 246. Hall, V.-C., then referred it to an eminent accountant "to inquire and report upon what terms, and subject to what conditions, the contracts of the society should be reduced in place of making a winding-up order, and to settle a scheme for reducing such contracts, for the approval of the Court." Questions of importance having arisen, the referee stated a special case, and the opinion of the Court was taken thereon. Re Great Britain Mutual, 19 C. D. 39; 20 C. D. 351. The Court held (1), that the date of the presentation of the petition was the one at which the calculation should be made for settling the scheme; (2), that the claims of policy-holders and annuitants which had matured before the date of the presentation of the petition must be paid in full; (3), that annuities payable after that date must be reduced; (4), that participating and nonparticipating policy-holders current must be reduced pari passu; (5), that all payments in arrear of premiums, including half premiums left as a charge on the policies, must be paid in full. The scheme was then settled, and in due course it was confirmed by the Court, 6 May, 1882. Shortly afterwards an agreement was made with another company under which that company undertook to receive the premiums, and, in consideration of a commission, apply them in paying the claims as they matured, and this agreement was sanctioned by the Court. The above case shows that the power to reduce contracts, conferred by the Act of 1870, is defective, inasmuch as it leaves untouched claims which happen to have matured before the presentation of the petition. Where such claims amount to a considerable sum it would seem better to take a winding-up order, and then adopt a scheme under the Joint Stock Companies Arrangement Act, 1870, either by sale to a new company, or by a subsequent stay of proceedings. A difficulty which arose in regard to a scheme in Re Albert Life Assurance Co., 6 Ch. 381, would seem no longer to exist, since the mode of valuing policies and annuities has been settled by the Life Ass. Act, 1872. Upon such a scheme, the matured claims would not be entitled to preferential payment. Winding-up Petitions. In the High Ct of Justice. Chancery Division. Mr. Justice In the matter of the Companies Acts, 1862 and 1867. To Her Majesty's High Ct of Justice. Co, Limtd. See s. 81 of the Act of 1862, and ss. 16 and 34 of the Judicature Act, 1873. The humble petition of of 1. The Co, Limtd (hereinafter called the co), was in the month Form 306. Petition of judgment creditor. Form 306 of 1872, incorporated under the Cos Acts, 1862 and 1867, as a co limtd by shares. 2. The registered office of the co is at 3. The objects for which the co was established are as follows :- Here the objects will be set out, or the paragraph may be framed as in Form 299. 4. The nominal capital of the co is 20,000l., divided into 2,000 shares of 107. each. The whole of the sd shares have been issued. 5. Your petr is the holder for valuable conson of a bill of exchange, dated the day of, for 2507., payable six months after date, upon and accepted by the co and indorsed by divers drawn by persons. The sd bill was not met at maturity. day of 6. On or about the , your petr duly commenced and prosecuted an action in the Queen's Bench Division of this Honourable Ct against the co for the recovery of the amount of the sd bill and interest. day of 7. The co failed to appear to the writ in the sd action, and your petr on the -, signed and recovered judgmt in the sd action against the co for the sum of 2511. 58. and costs, which costs were afterwards taxed and certified to amount to 47. 6s., making together with the sd sum of 2517. 5s. the sum of 2557. 118. recovered by the sd judgmt. 8. Your petr on the day of sued out a writ of fieri day of facias under the sd judgmt; but on the See s. 80 of the Act, sub-s. (2). In re Yate Collieries, W. N. 1883, 171, where no execution issued. 9. The sd judgmt is wholly unpaid and unsatisfied, and the amount thereof is justly due and owing to your petr. 10. The co is unable to pay its debts. See s. 79 of the Act, sub-s. (4). Re Flagstaff Co., 20 Eq. 268; In re Globe Co., 20 Eq. 337; Re Alliance Co., W. N. 1867, 218. 11. Under the circes it is just and equitable that the co should be wound up. Your petr therefore humbly prays as follows:- And your petr will ever pray, &c. NOTE. It is intended to serve this petition on The Co, Limtd. As to the Court to which a winding-up petition should be presented, see s. 81 Form 306. of the Act, and Buckley, 196. As to who may petition, see s. 82 of the Act, and Buckley, 198. As to when a winding-up order will be made, see ss. 79, 80, of the Act, and Buckley, p. 184, et seq. With regard to paragraph 11 of the above petition, it must be remembered that a mere allegation to the effect therein expressed is not sufficient. The facts which render it just and equitable must be stated, so that the order may be secundum allegata et probata. In re Wear Engine Works Co., 10 Ch. 191 ; Patent Cocoa Fibre Co., W. N. 1876, 60; In re Rica Gold Co., 11 C. D. 41. See further as to the proceedings, infra, “winding up." It may sometimes be deemed expedient to allege that the appointment of a provisional liquidator is desirable, see Form 308, infra, and to pray, inter alia, that a provisional official liquidator may be forthwith appointed." But the Court can appoint without notice to any person. Gen. O. 1862, r. 15. However, by so framing the petition, the necessity for a notice of motion may sometimes be avoided. Formal parts: see Form 306. 1. Your petr is the widow and executrix of A. B., late of N, Form 307. in the county of, who died on the day of petr has proved his will. 1875. Your Petition of executrix of policy holder. 2. The above-named co (hereinafter called the co) was incorporated under the Cos Act, 1862, as a co limtd by shares, for the ppose of carrying on the business of a life assurance co. Its registered office is in London. 3. On the 28th day of May, 1873, the sd A. B. effected a policy of assurance on his own life with the co for the sum of 4007. at the annual premium of 137. 2s. which was regularly pd. It is provided by the sd policy that the funds and ppty of the co shall be liable to pay the sd sum of 4007. to the assured within three calendar months after satisfactory proof shall have been given to the directors of the co of his death and identity. 4. Notice of the death of the sd A. B. having been given to the co the directors thereof made such inquiries as they thought fit, and satisfactory proof was given to them of such death and of the identity of the sd A. B. On the 8th day of January, 1876, the secretary of the co, by the instructions of the directors thereof, wrote and sent to your petr's solor a letter of that date, informing him that the inquiries were finished and that the 4007. would be pd in accordance with the terms of the policy within three months from the date. 5. Your petr was desirous that the sd sum of 4007. should be pd to Mr. D, the London agent of her solor on her behalf, and inquiry was therefore made at the office of the co on what conditions the paymt would be so made. The answer given on behalf of the co was that upon production of a receipt for the 4007., signed by your petr, and of her authority in writing for the paymt to Mr. D.-, the money would be pd. day of 6. On the 1876, Mr. D— attended at the office of the co and produced a proper receipt for the 4007. signed by your Form 307. petr, and also a sufficient authority in writing signed by her for the paymt of the money to Mr. D——, who demanded paymt to him accordingly. The money was not, however, pd, nor was any assurance given that it would be pd. The manager of the co stated to Mr. D—— that he would bring the claim to the attention of the board of directors at their meeting on the day of and that it would then be decided, when a cheque for the 4007. would be pd. Form 308. Petition of debenture holder. 7. The co has for some time past been in embarrassed circes, and it is unable to pay its debts. 8. Your petr submits that she is entled to a winding-up order. As to winding up an insurance company upon the ground of insolvency, see s. 21 of the Life Assurance Companies Act, 1870, 33 & 34 Vict. c. 61; Buckley, 540. Tests of insolvency considered, London and Manchester Assoc., 1 C. D. 466. A voluntary winding up may be prima facie evidence of insolvency, British Alliance Corp., 9 C. D. 635. Where the petitioner seeks for an order under the Act of 1870, the petition should be intituled "In the matter of the Life Assurance Companies Acts, 1870 and 1872," as well as in the Acts of 1862 and 1867. Where the application is under those Acts the fiat will be special, and pursuant thereto the chief clerk will, in due course, certify as follows: "In pursuance of the directions given to me by his Lordship, Mr. Justice I certify that a primâ facie case that the within-named company is insolvent has been established to the satisfaction of the judge, and security for costs has been given to the amount of [1001.]. The evidence produced consists of the following affidavits of the following persons [specify them]. Receipt of cashier of the Bank of England [10] Nov. [1880] for 1001. deposited in the matter of, &c., under Rule, &c." Formal parts: see supra, Form 306. 1. The Co, Limtd, hereinafter called the co, was incorporated, as a co limtd by shares, under the Cos Acts, 1862 and 1867, in the month of, 1873, for the ppose of acquiring and working certain patents for the manufacture of from and for other pposes set forth in the memorandum of association thereof. The registered office of the co is situate at 2. The nominal capital of the co was stated in the memorandum of association thereof to be 100,000l., divided into 10,000 shares of 107. each. 3. Shortly after the incorporation thereof, the co commenced and has since carried on business. Upwards of 4,700 of its shares have been issued. on the 4. The co has raised money by the issue of debentures. By such debentures the co promised to pay the sums therein respively mentioned day of ―, and interest thereon in the meantime at the rate of 7 p. c. p. a., on presentation of the coupons attached thereto on the days named in such coupons respively, and the co thereby charged all its ppty with the paymt of the sd principal sums and interest. 5. The coupons attached to the sd debentures were for interest on the principal sums in the debentures mentd, at the rate afsd, and purport to be payable on the 5th April and 5th October in every year. 6. Your petr advanced 2,000l. to the co on the security of 20 such Form 308. debentures as afsd, and these debentures are still held by him. 7. On the day of last your petr applied to the co for paymt of the interest which accrued due on your petr's sd debentures on the 5th day of April, 1876. The co has not pd such interest and there now remains due and owing to your petr in respect thereof the sum of 741. Os. 5d. 8. The co is indebted to other debenture holders in respect of the interest on debentures issued by it, and also to divers other persons, and it is unable to pay its debts. 9. Some of the assets of the co are pledged by way of security, to certain creditors thereof, and the entire assets are insufficient to meet the liabilities. 10. Several actions, brought by creditors against the co are now pending, and unless such actions are restrained the co will shortly be liable to have judgmt entered and execution issued against it. 11. Having regard to all the circes, it is just and equitable that the co should be wound up by the Ct. 12. It is important and in the interest of the creditors and members of the co that the ppty thereof, and in parlar certain barrels of should be taken possession of by some person appointed by the Ct. Your petr therefore humbly prays :-&c. A debenture holder who cannot get paid may present a winding-up petition. But he is not entitled to an order against the wishes of the majority of the creditors. Western of Canada Co., 17 Eq. 1; St. Thomas' Dock Co., 2 C. D. 117; West Hartlepool Iron Works Co., 10 Ch. 618; Uruguay Central Co., C. D. 372; Chapel House Co., 24 C. D. 259; 31 W. R. 933; 49 L. T. 575. The holder of a mortgage debenture can apply for and obtain a winding-up order without giving up or affecting his security. Moor v. Anglo-Italian Bank, 10 C. D. 681. 4. Capital. Form 309. 1. Incorporation. 2. Registered office. 3. Objects. 5. The co is indebted to your petr in the sum of -1. for procu- Petition of ring the insertion and publication of the co's prospectus in divers news- simple contract papers pursuant to orders given to your petr by the authority and on behalf of the co. 6. Full parlars of your petr's charge for procuring the insertion of the sd prospectus in the newspapers afsd are contd in an account which was long since furnished by your petr to the co. Such charges are fair and reasonable. 7. Your petr has made repeated and urgent applicons to the co for paymt of the sd sum of 7., but the co has neglected to pay or satisfy the same. 8. The co is [insolvent and] unable to pay its debts. 9. [Just and equitable.] So held by Bacon, V.-C., in A creditor for less than 501. may petition. Scovell's Hamble Fisheries Co., 16th Feb., 1884, where petitioner's debt was 201. undisputed. At the hearing the company offered to pay the amount, but without costs. Bacon, V.-C., ordered them to pay the costs. crcditor. |