Form 381. hearing of an applicon on the pt of [state on whose behalf the applicon is made; e.g., "the petr in these matters," or "the off. liq. of the above-named co," or "A. B., a creditor of the above-named co"], that [state the nature of the applicon], and [as to costs, e.g., "that the costs of this applicon may be costs in the winding-up," or "that the off. liq. may be ordered to pay the costs of and incidental to this applicon"].

This summons was taken out by A., of in the county of Middlesex, solor for the applicant.

To [insert the names of the solors or persons (if any) to be served with the summons; e.g., "the off. liq. of the above-named co and Mr.

As to this form see Rules of 1883, rule 743. As to the right a party has to have the summons adjourned to be heard by the Judge, see Upton v. Brown, 20 C. D. 731; Smith v. Wells, 22 C. Div. 5.

Form 382.

Formal parts of notice of motion.

In the High Ct of Justice.

Chancery Division.

[Name of Judge.]

In the matter [as in Form 381].

Take notice that the Ct will be moved before his lordship, Mr. Justice day of, 188-.

onday, the

[If the motion is to be heard at a specially appointed hour, state the fact; as:] at eleven of the clock in the forenoon of that day, or so soon thereafter as counsel can be heard,

[Here state on whose behalf the motion is to be made; as:] by Mr. A. as counsel on the pt of the off. liq. of the above-named co, that [here state the object of the motion].

[If special leave has been obtained to give the notice for a non-motion day or for a motion day short of the ordinary two clear days after service, or for a special hour and place, state the fact; as :] And take also notice that special leave [see, as to necessity of mentioning this, Dawson v. Beeson, 22 C. Div. 504] to give this notice for the day (and hour and place) afsd has been obtained from his lordship Mr. Justice the case may be].

-[or as

Form 383.

Formal parts of affidavit.

Solor for the off. liq. of the above-named co [or as the case may be].

To [insert names of solicitors or parties to whom the notice is to be given]. See Rules of 1883, App. B., No. 18.

In the High Ct of Justice.

Chancery Division.

In the matter, &c. [As in Form 381].

I, A. B., of [here insert place, residence, and description or addition] Form 383. make oath and say as follows :—

This afft is filed on the pt and behalf of the off. liq. of the abovenamed co [or as the case may be].

Rule 523 requires that affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions [applications, Re New Callao, W. N. 1882, 60; 30 W. R. 647; 47 L. T. 175] on which statements as to his belief with the grounds thereof may be admitted. An affidavit of facts to the best of the defendant's knowledge, information, and belief, without stating the grounds, is worthless. Quartz Hill Co., 20 C. Div. 508. Evidence on information and belief is not admissible on applications which finally settle the rights of the parties. Gilbert v. Endean, 9 C. D. 259.

In the High Ct of Justice.-Chancery Division.

Form 384.

In the matter of the Cos Acts, 1862 and 1867. And in the matter Advertisement of the Co, Limtd.

Her Majesty's High Ct
presented to the High

a creditor, or, con-
And that the sd peton

Notice is hby given that a peton for the winding-up of the abovenamed co by [or, subject to the supervision of] of Justice, Chancery Division, was, on the Ct of Justice by the sd co [or by A. B., of triby of the sd co, or, as the case may be]. is directed to be heard before His Lordship the Honourable Mr. Justice on [Friday,] the day of 18-; and any creditor or contriby of the sd co desirous to oppose the making of an order for the winding-up of the sd co under the above Acts should appear at the time of hearing by himself or his counsel for that ppose; and a copy of the peton will be furnished to any creditor or contriby of the sd co requiring the same by the undersigned on paymt of the regulated charge for the

same.

day of

Dated this

C. & D., of

[agents for E. & F., of],

of presentation of petition.

Solors for the petr.

For insertion in the Gazette the advertisement must be signed by the solicitor for the petitioner and witnessed, and the petition with the fiat of the Court must be produced.

The appearance of the advertisement gives priority. Trades Bank, W. N. 1877, 268; see Storforth Lane Colliery Co., 10 C. D. 487, as to priority between petitions advertised in same Gazette.

Where the petition is to be heard in vacation the advertisement will state" that by special leave granted by [name of judge], the said petition is directed to be heard before Mr. Justice or such other judge as may be sitting as Vacation

Judge.

See Rule 2, as to advertising a winding-up petition.

The utmost care should be taken that the advertisement is correctly expressed and duly advertised.

Any error in the title, name, day, or place for hearing, may render the advertisement useless. In re City and County Bank, 2 Ch. 477; Marezzo Marble Co.,

Form 384. W. N. 1874, 9; 22 W. R. 218; Manure Co., W. N. 1876, 234. As to restraining advertisements, see supra, Form 345, and infra, Form 656.

Form 385.

Affidavit in support of petition.

Form 386.

Order extend

affidavit.

For advertisement of winding-up order, see infra, Form 423.

I, A. B., &c., make oath and say, that such of the statemts in the peton now produced and shown to me, and marked with the letter A., as relate to my own acts and deeds, are true, and such of the sd statemts as relate to the acts and deeds of any other person or persons, I believe to be true.

Sworn, &c.

See Rule 4 as to this affidavit, and Cases, supra, p. 419.

Where there is likely to be opposition to the petition, it is generally desirable to file further evidence supporting the case made by the petition and meeting any affidavits filed in opposition. Where the petition is not by the company an affidavit of service may be desirable. See Form 387. But if the company does not appear the order is sometimes made subject to the production of an affidavit as to service to the registrar.

As to cross-examining witnesses on their affidavits, see infra, Form 620.
As to evidence in opposition:

Evidence should be filed contradicting, if possible, the petitioner's evidence, or showing that an order ought not to be made, e.g., because the majority of the creditors or members desire the adoption of some other course. If necessary, the petitioner and others making affidavits should be cross-examined thereon.

Upon motion, &c., for A., who alleged that the sd A., on 1 Ap., 1876, presented his peton in these matters to this Ct, but omitted to file his ing time to file afft in support of such peton within the time limtd in that behalf by the general order of this Ct, and upon reading an afft of R. L., filed the 11 Oct., 1876, let the sd A. be at libty to file his afft in support of the sd peton notwithstanding the time limtd for that ppose has expired. Civil, &c., Supply Association, M. R., 11 Ap., 1876. A. 723.

Form 387.

Affidavit of service.

Rule 4 provides that every petition for the winding-up of any company by the Court, or subject to the supervision of the Court, shall be verified by an affidavit as above. Such affidavit is to be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof; and is to be sworn after and filed within four days after the petition is presented, and such affidavit is to be sufficient primâ facie evidence of the statements in the petition. The four days limited by the above Rule for filing the affidavit verifying the petition may, under Rule 73, be extended by the Court. Re Patent Screwed Boot and Shoe Co., 32 Beav. 142; Re Western Benefit Soc., 33 Beav. 368; 32 L. J. Ch. 179; Re Fortune Copper, 10 Eq. 390.

The order is commonly obtained on motion ex parte before the hearing, and very commonly without any sworn evidence being required. The order need not now be drawn up, but notice must be given to the respondents. See Order LII., r. 14.

day of

1. On the I served the above-named co with a peton preferred in these matters by · of to this Honourable

day of

Ct with the order thereon of this Ct, dated the
whereby it was ordered that all parties concerned should attend thereon
on the
and that notice thereof should be given forth-
with, by delivering a true copy of the sd petition and order to A. B., the

day of

secretary of the sd co, at the registered office of the sd co, situate Form 387. at, and at the same time producing and showing to the sd A. B.

the sd original peton with the sd order thereon.

Sworn, &c.

Where a special order as to service has been made [infra, Forms 388, et seq.], the form of affidavit must be varied accordingly.

As to service of winding-up petition, see Rule 3. Where the petition cannot be served as thereby provided, application for an order as to service should be made to the Court by motion ex parte, supported by an affidavit as to the facts. See Re London and Westminster Co., 12 W. R. 6; In re National Credit, &c., Co., 11 W. R. 161; Fortune Co., 10 Eq. 390; In re Manchester Co., Ibid. 9 Eq. 644; Vron Slate Co., W. N. 1878, 70.

The following are some examples of orders as to service of winding-up petitions.

Upon motion, &c., for H., who alleged that the sd H. on 23 May, Form 388. 1878, preferred his peton in these matters to this Ct for the winding Office closed. up the above-named co, and that the registered office of the sd co was closed as by a joint afft of B. & P., filed, &c., appears, and upon reading the sd afft, &c. Let service of a copy of the sd peton having this Ct's order thereon that all parties concerned should attend this Ct on the sd peton on 7 June, 1878, together with a copy of this order on S. and B., two of the directors of the sd co, be deemed good service of the sd peton on the sd co. Star Rolling Mills Co., Limtd., Malins, V.-C.,

30 May, 1878, 917 B.

The above is the Form in which the order is very commonly made, but according to the form given in Seton, p. 1624, it should run :-"That service of the said petition having, &c., by delivering a copy thereof, together with a copy of this order to

of

at

be deemed, &c."

Office demolished.

Upon motion, &c., and it appearing that the registered office of co, Form 389. which was situate at, &c., has been pulled down. Let service of the sd peton on the sd co by serving a copy of the same together with a copy of this order on B., the secretary of the sd co at and on one of the firm of Messrs. M. & M. of the same place, the solors of the sd co, be deemed good service of the sd peton. 1878, B. 341; W. N. 1878, 70.

Vron State Co., M. R., 27 Feb.,

Same.

Upon motion, &c. Let service of the sd peton be effected by leaving Form 390. a copy thereof at the last registered office of co, and if such office be closed, then by advertising the same in the London Gazette, and two London daily morning newspapers, as provided by the general order of 11 Nov., 1862, made in psuance of the Cos Act, 1862, be deemed good service of the sd peton on the sd co. Investors' Trust Co., Lopes, J., for M. R., 16 August, 1877. A. 1735.

On the pt of the above-named co that the petr, who is resident at Form 391. in the kingdom of, out of the jurisdiction of the Ct, may Summons for

Form 391. be ordered within

security for

costs.

Form 392.

Order giving liberty to amend.

Form 393. Another.

Form 394.

Order to stand

over.

days to give security in the sum of to -1. answer costs in these matters, and that in the meantime all proceedings in these matters may be stayed.

Where the petitioner is resident out of the jurisdiction, application may be made for security for costs; East Llangynog Lead Co., W. N. 1875, 81. The amount is in the discretion of the Court. Rules of Sup. Court, Order LV., r. 2. See also supra, Form 347.

Upon motion, &c. Let the petr be at libty to amend the sd peton as he may be advised: And order that the sd petr do have four days from the date of this order within which to file his afft verifying the statemts in the amended peton. Horne v. Foreign Gas Co., M. R., 4 July, 1877. A. 1297.

Upon the peton of L., &c. Let the peton stand over until the 17 May, 1878, and let the petr be at libty to amend the sd peton generally as he may be advised. General Meat, &c., Co., Malins, V.-C., 10 May, 1878. A. 940.

Under Ord. XXVII., rule 6, the Court may give liberty to amend any pleading (which includes a petition, Judicature Act, 1873, s. 100).

And where any trifling slip has been made, amendment is permitted as of course, but liberty to amend is sometimes given, even where the petition is demurrable. See Buckley, 202; Rica Gold Co., 11 C. Div. 42; White Star Co., 48 L. T. 815. No need to draw up order now. Order LII., r. 14.

The peton of G. N., claiming to be a creditor of co, on 16 Dec., 1875, preferred unto this Ct, coming on this day to be heard before this Ct, and upon hearing counsel for the petr and for sd co and for C. S. and other debenture holders opposing the sd peton, and the co by their counsel undertaking not to consent to a winding-up order on any other peton, and not to wind up voluntarily, and to give notice to the petr of any other peton for winding up co which may be served upon them, and in the event of any such other peton being served upon them to consent to the peton being restored to the paper, and that the applicon for a winding-up order by it may be renewed in the same manner as if the peton had not been ordered to stand over. Let the peton stand over until the first peton day in Michaelmas sittings now next. NorthWestern of Montevideo, &c., Co., Hall, V.-C., 28 Ap., 1876, B. 1377. And see In re Great Western Coal Co., 21 C. D. 769.

The Court frequently directs (under section 86 of the Act, infra, p. 424), winding-up petitions to stand over. Such orders are commonly made when one of the parties has not had time to answer the affidavits of the others, or where it is desired to cross-examine persons who have made affidavits, and occasionally where proceedings for resolving on a voluntary winding-up are being taken. See supra, p. 299.

Sometimes a petition is ordered to stand over for several months, e.g., where the majority of the creditors desire it. St. Thomas Dock Co., 2 C. D. 116. In