such cases the order is generally made on special terms, as in Form 394. See Form 394. further, Buckley, 186.

See, however, Chapel House Colliery Co., 24 C. Div. 257, as to dismissing petition where majority of creditors oppose.

Upon the peton of, preferred unto this Ct, praying that co Form 395. might be wound up under the provisions of the above-mentd Acts, and Order giving the petrs not wishing to proceed with the sd peton, and the co waiving liberty to all costs: This Ct doth order that the petrs be at libty to withdraw withdraw. the sd peton. Langham Skating Rink Co., Limtd, Bacon, V.-C., 4 Nov., 1876. B. 1817.

Where a winding-up petition has been presented the petitioner, until a winding-up order has been made, is dominus litis, and therefore can submit to an order dismissing or obtain liberty to withdraw his petition. In re Home Assurance Assoc., 12 Eq. 59; Re Times Life Assurance Co., 9 Eq. 382. Accordingly the company very commonly comes to terms with the petitioner, e.g., that his debt shall be paid or secured, and that he shall withdraw the petition. In such case the company usually agrees to pay the costs, and where the petitioner was justified in presenting the petition, he is entitled to require payment thereof. In re Alliance Co., W. N. 1867, 218; Re Flagstaff Co., 20 Eq. 268, and supra, p. 379.

Re

Where a petition is withdrawn or dismissed by consent, creditors and members appearing and opposing are entitled to one set of costs apiece from the petitioner. In re Patent Cocoa Fibre Co., 1 C. D. 617; In re London and Suburban Bank, 19 W. R. 88. Unless such appearance is unjustifiable. Walkham United Mines, W. N. 1882, 131. But supporters not entitled to costs. Jablochkoff Co., W. N., 1883, 189; 28 S. J. 70; Union Trust, 76 L. T. 227. Accordingly, where a petitioner agrees to withdraw, he should insist on being indemnified by the company against these costs. See further Buckley, 200. In arranging terms of withdrawal, a petitioner should take care that his costs are paid down or secured, and should not submit to an order merely dismissing the petition and directing the company to pay the costs, for in such case, if the company goes into liquidation before the costs are paid, the petitioner will have to go in and prove for them, ranking as an unsecured creditor.

consent dis missing.

Upon the peton of B., of, &c. [winding-up petition]: And it appearing Form 396. that the debt of the petr has been provided for, Let by consent the Order by peton be dismissed, And Let the petr's costs of and incident to the sd peton be taxed by, &c., as between solor and client, and be pd by the co to the petr, and if such costs when taxed do not amount to 1007. the petr by his counsel undertaking to apply the excess of the 1007. already pd to the petr towards satisfon of the first of the three promissory notes given by the sd co to the petr which shall become payable after the taxing-master's certificate shall have been filed, And if such costs when taxed shall exceed the sd sum of 1007. the balance of such costs is to be pd by the sd co to the petr on the 15th of December instant. Government Security Fire Insurance Co., 22 June, 1877. A. 1218.

Upon the peton of M. [for compulsory order], and upon hearing Form 397. counsel for the petr and for the sd co, and the petr by his counsel Order that admitting that the claim of the petr against the sd co has since the sd company pay peton was preferred been satisfied: This Ct doth not think fit to make paid before hearing.

costs, debts

Form 397. any order on the sd peton, but doth order that the sd co do pay to the

Form 398.

Another where

creditors oppose.

Form 399.

Order dismissing

with costs.

Form 400.

Order dis

missing where provisional liquidator.

Form 401.

petr his costs of the sd peton, and such costs to be taxed, &c.
Alliance Corporation, Malins, V.-C., 17 May, 1878. A. 2124.

British

Where the petitioner's debt is paid before the hearing, but the company will not pay his costs, he should apply for his costs at the hearing, and an order will be made as follows. In re Alliance Co., W. N. 1867, 218; Re Flagstaff Co., 20 Eq. 268.

Upon the peton, &c., and the petrs by their counsel admitting that the debts and costs of execution due from the sd co to the petrs had since been pd: This Ct doth not think fit to make any order on the sd peton, but doth order that the sd co do pay to the petrs and to and creditors their costs of and occasioned by the sd peton: such costs to be taxed by the taxing-master, who is to allow to the sd creditors such costs only as would properly have been incurred by such creditors respively if all such creditors had been represented by the same counsel and solors. Association of Land Financiers, Malins, V.-C., 25 June, 1878. B. 1408.

For order discharging winding-up order except as to payment of costs see Towcaster & Co., M. R., 30 May, 1878, B. 1195. The order recited the windingup order, that petitioner since paid, that order not advertised, that other creditors who appeared consented. Query ultra vires. See Aston Co., 45 L. T. 676, where winding-up order discharged.

Upon the peton, &c., Let the sd peton stand dismissed, with costs to be taxed by the taxing-master and pd by the petrs P. to the co and to and 26 others appearing as afsd, and to and but only one set of costs is to be allowed to the sd shareholders. Malpaso Gold Co., Hall, V.-C., 17 Jan., 1879. B. 122.

See section 86 of the Act of 1862, as to dismissing.

Upon the peton, &c. Let the sd peton stand dismissed. And order that the sd order [appointing prov. liq.] of 18 September, 1876, be discharged. And order that notwithstanding the sd order, the chief clerk of the judge and the sd prov. off. liq. be at libty to sign a cheque in favour of the sd co, or of Mr. their solor, for any balance standing to the credit afsd. Milan Tramway Co., Limtd, Field, J. (for Hall, V.-C.), 17 October, 1876. B. 1717.

Where the petition is dismissed the petitioner is usually ordered to pay the costs of the company and one set of costs apiece to the shareholders and creditors opposing. In re European Banking Co., 2 Eq. 521; Diamond Fuel, W. N. 1878, 11.

But sometimes a different order is made. Re Anglo-Egyptian Co., 8 Eq. 880; New Gas Co., 5 C. D. 703.

Upon motion, &c., by counsel for W. & F., the exs of the will of C. F., deceased, who alleged that on the 24th of Dec., 1874, the sd application of C. F. presented his peton for the winding up of the sd co under, &c.

Revivor on

and that the sd petr died on the 11th of May, 1876, having by his last Form 401. will and testamt appointed the sd W. & F. exs thereof, who duly proved petitioners' the same on the 3rd of June, 1876. Let the sd peton and the pro- executors. ceedings thereunder be carried on and prosecuted by the sd W. & F. in like manner as the same might have been carried on by the sd F. in case he had not died. Tecoma Silver Mining Co., Hall, V.-C., 26 July, 1877. B. 1473.

See also Dynevor Collieries Co., W. N. 1878, 199, where a similar order was made, the petitioner having died before the hearing of the petition. And see Re Rowe, 27 S. J. 104.

Orders for Compulsory Winding-up.

The following is the usual form of order:

Upon the peton of A. [or, of the above-named co] a creditor [or, a Form 402. contriby of the above-named co] on the day of preferred Winding-up unto Her Majesty's High Ct of Justice, and upon hearing counsel for order. the petr and for the respondents, the above-named co, and for B., a creditor of the sd co, and upon reading the sd petn, an afft of A., filed the day of verifying the sd peton, an afft of, &c., the London Gazette, of the

day of

the Times newspaper, of the

day of [enter any other newspapers], each containing an advertisemt of the sd peton. Let the above-named

Co, Limtd, be wound up
Cos Acts 1862 and 1867.

by this Ct under the provisions of the
And let the petr and the sd co and the sd B. be allowed their costs of
and relating to the peton out of the assets of the sd co, such costs to be
taxed by the taxing-master.

If several creditors and contributories appear and support the petition, the order as to costs will be as follows:

And let the sd A., and the sd co, and the sd B., C., D., and E., be Form 403. allowed their costs of and relating to the peton out of the assets of the

sd co, such costs to be taxed by the taxing-master, who is to allow only

one set of costs between the sd one set of costs between the sd

and and

[the creditors], and only [the contribs].

The usual order as to costs where a winding-up order is made, gives the petitioner and the company, the contributories and creditors supporting the petition, their costs, but only one set among the contributories and one among the creditors. In re Humber Iron Works Co., 2 Eq. 15; In re European Banking Co., 2 Eq. 521. See further Buckley, 221.

Where a provisional official liquidator has been appointed before the hearing the order sometimes provides as follows:

And it is ordered that Mr.

the prov. off. liq., be continued as Form 404.

such prov. off. liq., until the appointmt of an off. liq.

But there can be little doubt that such provision is in general unnecessary.
It is now settled that a receiver who has been appointed as a "full receiver"

Form 404. that is, not as an "interim receiver," remains receiver until discharged. Seton, 412; Cruse v. Smith, 24 Sol. J. 121. And the same principle seems to apply in the case of a provisional liquidator. For orders discharging provisional liquidators, see infra, Form 418, et seq.

Where a provisional liquidator has been appointed upon the application of the petitioner, the winding-up order generally provides for the "costs of and relating to the said petition (including the costs of and consequent upon the appointment of the said as such provisional liquidator."

Form 405.

Order on two petitions.

petition.

Very commonly the order is made on two petitions thus:

Upon the peton of R. W. S., of a creditor of the above-named co, on the 3rd day of April, 1876, preferred unto this Ct, and upon the peton of E. P., of -9 another creditor of the above-named co on the 12th day of April, 1876, preferred unto this Ct, and upon hearing counsel for the respive petrs for the above-named co, and for L. C. A., a creditor, and upon reading the sd petons respively, an afft of the sd R. W. S. filed the 6th of April, 1876, verifying the first-mentd peton, and an afft of the sd A. P., verifying the secondly-mentd peton, the London Gazelle, the Times newspaper, and the Standard newspaper, all of the 10th day of April, 1876, each containing an advertisemt of the first-mentd peton, and the London Gazette, &c., each containing an advertisemt of the secondly-mentd peton, an afft of R. W. S., filed the 24th day of April, 1876, an afft, &c., a joint afft of A. A. R. and J. C. W., filed, &c., and two several affts of the sd L. C. A., filed respively, &c. Let the B., &c., Co, Limtd, be wound up by this Ct under the provisions of the Cos Act, 1862 and 1867, and let the petrs respively, and the sd co, and the sd L. C. A. be allowed their costs of or relating to the sd petons respively, out of the assets of the sd co, such costs to be taxed by the taxing-master. British Guardian Life Assurance Co., Hall, V.-C., 2nd May, 1876. A. 951.

Form 406. Upon the peton of H. & M. on the 31st Jan., 1879, preferred Order allowing [winding-up peton], and upon hearing counsel for the petrs, and for S., costs of second a creditor, and upon reading the sd peton, and it being alleged that an order dated 10 Feb., 1879, has been made for the compulsory winding up of the sd co, and upon reading the sd order: This Ct doth not think fit to make any order on this peton, but doth order that the costs of the sd petrs, and of the sd S. of this applicon be costs in the winding up of the sd co. Medium for sales and exchanges, Hall, V.-C., 14th Feb., 1879. B. 427.

As to costs of concurrent petitions, see supra. In some cases where a winding-up order has been made on one petition, the costs of a second petition subsequently coming on will be allowed as in the above case, and in Re British and Foreign Gas Co., 13 W. R. 619; and Re Marron Bank Co., 38 L. T. 141; W. N. 1878, 12.

But see as to costs incurred by second petitions after notice of first. Re General Fin. Bank, 20 C. D. 276.

tion by con

Upon the peton of H. this day preferred unto this Ct, and the solors Form 407. for the above-named co, parties having subscribed the sd peton, Order transsignifying their consent to the prayer thereof. Let the above-mentd ferring petimatters marked for the Master of the Rolls be transferred to the Vice- sent. Chancellor Sir Charles Hall, and let the same when so transferred be hereafter considered as matters originally marked for the Vice-Chancellor Sir Charles Hall, provided that no order made by the Master of the Rolls be varied or reversed, otherwise than by the Ct of Appeal. British Guardian Life Assurance Co., Limtd, Lord Chancellor, 11th May, 1876. A. 836. See also Seton on Decrees, 318.

When a petition to wind up a company has been presented, another petition for the same purpose subsequently presented and marked for some other judge will be ordered to be transferred to the judge with whose name the first petition is marked. In re West Hartlepool Ironworks Co., 10 Ch. 629. In this case (it was before the Judicature Act) the transfer was ordered by the L.JJ. on motion for the first petitioner.

Since the Judicature Act, the Court of Appeal has no jurisdiction to order a transfer. In re Boyd's Trusts, 1 C. Div. 12. Transfers are now made under Or rule 1, by the Lord Chancellor. See Memorandum in 1 C. Div. 41,

as to the practice.

Where all parties consent, the application can be made by petition subscribed by all and delivered to the secretary of the L. C.; but "if all parties will not consent, the application must be by motion to the L. C." The secretary will inform the party desirous of moving where and when he can move, and the notice of motion will be framed accordingly.

The notice of motion will be as follows

Take notice that the Lord High Chancellor of Great Britain will be Form 408. moved on day, the day of

at

Notice of

transfer.

or so soon thereafter " as counsel can be heard, by Mr. as counsel for the petrs in these motion for matters, [or as the case may be] that these matters may be transferred to his Lordship, Mr. Justice and when so transferred may be considered as matters originally marked for his Lordship, Mr. Justice Dated, &c.

As to transfer of actions after a winding-up order see infra, Form 600.

Upon, &c. [usual winding-up order]: And it is ordered that all Form 409. further proceedings in the winding-up of the sd co be carried on in the Reference to County Ct of Suffolk, holden at Ipswich. Ipswich Public Hall Co., County Court. Jessel, M. R., 16 Jan., 1875. B. 59.

By section 41 of the Companies Act, 1867, the Chancery Division may, upon making an order for winding up a company, direct all subsequent proceedings to be had in a County Court; and by section 42 may transfer the winding-up from one County Court to another.

The reference to the County Court is sometimes made at the same time as the order to wind up, and sometimes upon an application subsequently made at Chambers. London and Westminster, &c., Co., 17 L. T., N. S. 559. The former is the usual course now.