Form 580.

Form 581.

Order for substituted service of summons.

Form 582.

Order for substituted service of petition.

Form 583.

Memorandum as to bill of exchange.

For order giving liberty to serve summons for call in Guernsey and Ireland, see Teignmouth, &c., Co., M. R. 21 June, 1878. B. 1207.

For order giving liberty to serve all summonses, orders, &c., on two contributeries resident in Belgium and Scotland, see Tinfoil Decorative Co., Bacon, V.-C., 12 June, 1877. B. 1122.

Substituted Service.

As to substituted service, see Order 67, r. 6; Seton, 1560.

Upon the applicon of the liqs, &c., Let service of this order and of a copy of the summons issued in these matters dated the 17th April, 1878, by leaving a copy of such summons and of this order at the hotel, situate, addressed to J. in the sd summons named, be good and sufficient service of the sd summons upon the sd J. Forest of Dean, &c., Co., M. R., 30 Ap., 1878. A. 763.

and at the hotel, situate

Upon motion this day made unto this Ct by counsel for K. who alleged that on the 4 Dec., 1878, the sd K. presented a peton unto this Ct praying that J. might be removed from his office of off. liq. of co, and might be ordered to deliver up all the ppty, cash, books of accounts, and papers in his possession or control belonging to the sd co, and file proper accounts forthwith, and that a liq might be appointed in the place of the sd J., and that all necessary and proper directions might be given for that purpose, or that such further or other order might be made as the nature of the case might require, And that the sd petrs have been unable to serve the sd peton on the sd J. as by an afft of the sd petrs filed 6 Dec., 1878, appears, and upon reading the sd peton and afft, Let service of a copy of the sd peton, (having this Ct's indorsemt that all parties do attend hereon on 13 Dec., 1878) together with a copy of this order upon F. of Manchester, be deemed good service of the sd peton upon the sd J. Main Printing, &c., Co., Hall, V.-C., 6 Dec., 1878. B. 2011.

In the matter, &c.
MEMORANDUM.

Bills and Notes.

The off. liq. attended this day and applied that he might be at libty to accept the following bills of exchange, namely,

R. and H..
T. R.

1781. 3s. 2d.
811. 18s. 7d.

the same being drawn in discharge of the monthly accounts for carrying on the works of the co. After hearing the sd off. liq., and reading the respive orders of this Ct dated, &c., leave was given to the sd off. liq. to accept on behalf of the co the above-mentd bills of exchange.

Chief Clerk.

When the sanction of the judge to the drawing, accepting, making, and indorsing bills of exchange and promissory notes is given, a memorandum as above is generally made.

See Rule 48 as to memorandum to be indorsed on bills, &c. Where power is given to carry on the company's business, &c., he is sometimes given an express

or implied power to accept and indorse bills without a memorandum, signed by Form 583. the chief clerk, being indorsed pursuant to Rule 48.

The memorandum where requisite runs thus:—

In the matter, &c.

The Master of the Rolls [or V.-C. -] has sanctioned the [acceptance] of this bill of exchange by the off. liq. of the above-named co.

Restraining Proceedings.

Form 584.

Chief Clerk.

Memorandum of sanction to be indorsed on

S. 85 of the Act of 1862 provides that, "The Court may at any time after the presentation of a petition for winding up a company under this Act, and before making an order for winding up the company upon the application of the company, or of any creditor or contributory of the company, restrain further proceedings in any action, suit, or proceeding against the company upon such terms as the Court thinks fit."

S. 87 of the Act of 1862 provides that, "When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company, except with the leave of the Court, and subject to such terms as the Court may impose."

S. 163 of the Act of 1862 provides that, "When any company is being wound up by the Court, or subject to the supervision of the Court, any attachment, sequestration, distress or execution put in force against the estate or effects of the company after the commencement of the winding up, shall be void to all intents." See also Jud. Act, 1873, s. 25 (8), empowering the Court to grant an injunction where just or convenient.

But s. 24, sub-s. (5) of the Judicature Act, 1875, provides as follows:

(5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto: Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment, or otherwise, any judgment, decree, rule, or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively by motion in a summary way for a stay of proceedings in such cause or matter, either generally or so far as may be necessary for the purpose of justice; and the Court shall thereupon make such order as shall be just.

Before the Judicature Act it was the practice where a winding-up petition had been presented to apply to the judge to whom it was assigned to restrain [under s. 85 above] any actions or proceedings against the company wheresoever pending.

The application was made by motion ex parte on behalf of the company, or of a creditor or contributory, and it was well settled that upon such an application an injunction would be granted until the hearing of the petition. Re London and Suburban Bank, 19 W. R. 950.

But since the Jud. Act this practice has been modified in accordance with s. 24 above. Re Artistic Colour Co., 14 C. D. 502. Where, therefore, it is desired to stop any action, execution, sale under an execution, or other proceeding pending in the High Court, the proper course is to apply by motion ex parte to the Division in which the action or proceeding is pending, and the Court, following the practice settled in Re The London and Suburban Bank, ubi

bill.

Form 584. supra, will, upon the usual undertaking as to damages being given, stay further

Form 585.

proceedings until the hearing of the petition or further order. Masbach v. Anderson, 26 W. R. 100, W. N. 1877, 252; Rose & Co. v. Gardden Lodge Coal Co., 3 Q. B. D. 235; Lindley, Add. 1275. The application in the Q. B. D. is usually made to the judge at chambers. Where there are several actions pending in the Q. B. D. a single order to stay all can be obtained. Where execution has been issued on a judgment signed in a district the application to stay must be made to a judge at Chambers.

In all other cases, e.g., in cases of actions in foreign courts, or in the inferior courts, or of distress or sales, application should (under s. 85 above) be made by motion ex parte to the judge to whom the petition is assigned, for an injunetion to restrain the proceeding until the hearing of the petition. See Forms 585, et seq., infra.

The application to stay or restrain (as the case may be) should be supported by an affidavit as to the facts, and if the application is made in the name of the company some responsible person must give the usual undertaking as to damages. Westminster Assoc. v. Upward, 24 Sol. J. 690.

S. 85 only applies prior to the winding-up order, but after the order has been made actions and proceedings (other than actions and proceedings in the High Court) commenced or taken in violation of s. 87 of the Act of 1862 [see above], will be restrained upon the application of the official liquidator or some other person interested. And as to actions and proceedings in the High Court, application can be made therein to stay proceedings, or an order for transfer can be obtained under Order XLIX., rule 5 [infra, Form 600, et seq.], and application may then be made to stay proceedings or otherwise as may be thought fit. As to when leave to proceed will be given under s. 87, see infra, Form 602, et seq. So also, under s. 25 of the Jud. Act above referred to, the Court will interfere by injunction to protect the assets of the company, regard being had to s. 163. See Forms 585, infra; Ex parte Fell, 29 W. R. 885; W. N. 1881, 125. A person who is improperly restrained should apply to discharge the injunction, or he may lose his security. Thorne v. Patent Lionite, 17 C. Div. 257, infra, Form 599, but consider Ex parte Rocke, 6 Ch. 795.

Upon motion, &c., by counsel, for above-named co, the petrs, &c., and Order restrain- for S., prov. off. liq., &c., and the sd S. by his counsel undertaking to ing County abide by any order this Ct may make as to damages in case the Ct Court action. shall hereafter be of opinion that the N. Co has sustained any by reason of this order which the sd petrs ought to pay: Let the N. Co be restrained until the hearing of the sd peton or the further order of this Ct from taking any further proceedings in the action by them against the sd petrs in the County Ct of Lancashire, holden at Oldham, in the county of L. Derbyshire Wagon Co., M. R., 12 July, 1879.

Form 586.

Upon motion, &c., for the liq. of co, &c., Order that the high bailiff of County Court the County Ct of Yorkshire, holden at K., do forthwith withdraw from the premes of the co entered upon by him pursuant to a warrant of execution directed to him and issuing out of the Shoreditch County Ct of Middlesex, holden at, &c., under a judgment obtained by B. of

execution restrained.

Form 587.

Order restrain

:

in an action commenced by him against the sd co as in the sd afft of C. mentd And order that the sd high bailiff do deliver up the possession of the sd premes to the sd liq.: And order that the sd action be transferred from the sd Shoreditch County Ct, &c., to the sd V.-C. Hull Central Drapery Co., Hall, V.-C., 5 Ap. 1879. A. 866.

Upon motion this day made unto this Ct by R., claiming to be a

schedule.

creditor of the above-named co, the petr named in a certain peton on the Form 587. 16th May, 1876, preferred unto this Ct to wind up the sd co, and upon ing actions by reading, &c., and the sd R. by his counsel undertaking, &c., should reference to this Ct hereafter be of opinion that the persons named in the schedule to this order shall have sustained any damage by reason of this order, which the sd R. ought to pay, This Ct doth order that the persons named in the schedule to this order be restrained from further prosecuting the several actions in the same schedule mentd commenced by them against the sd co, until, &c.

The Yorkshire Civil Service Supply Association, Limtd, Malins, V.-C., 17 May, 1876. B. 800.

So far as the above order purported to restrain actions in the High Court it was ultra vires. For ex parte order restraining actions in Mayor's Court, see Re Knights & Co., Bacon, V.-C., 16 Jan., 1884.

Order of

judge of Q. B. Div. staying proceedings.

Upon hearing counsel for the D., &c., Co., Limtd, and for S., the Form 588. prov. liq., and upon reading the affts of G., and the sd liq. by his counsel undertaking to abide by any order this Ct may make as to damages in case the Ct or a judge should hereafter be of opinion that the plt in this action shall have sustained any by reason of this order which the sd S. ought to pay, Let all further proceedings in this action be stayed until the hearing of the sd peton. Osborn v. Derbyshire, &c., Co., Q. B. Div. Order at Chambers, by Field, J., 4 July, 1879.

Upon the applicon of off. liq., &c., Let C. be restrained from further Form 589. proceeding against the off. liq. in the commercial Ct of the island of Order restrainMalta with reference to a sum of 10007. deposited, &c., Costs of sd pro- ing proceeding in foreign ceeding in Malta and of applicon to be reserved. General Works Co., court. Bacon, V.-C., 20 Nov. 1879. A. 2177.

Order restrain

Upon motion this day made unto this Ct by counsel for W. who Form 590. claims to be a creditor of the above-named co, and upon reading the peton of the sd W. on the 29th June, 1877, preferred unto this Ct, ing issue of praying that the sd co may be wound up, &c., and an afft of L. filed, &c. whereby it appears that an action has been commenced by N., the

execution.

Form 590. registered officer of the Bank, to recover the sum of 113l. 19s. 8d. upon a bill of exchange drawn by the sd bank and accepted by the co, and by the sd P. M. Co indorsed to the sd bank, And the sd W. [usual undertaking as to damages]: Order that the sd bank be restrained from issuing execution on any judgmt to be obtained by them in the sd action commenced by the sd N. as in the sd afft of the sd L. mentd, until the hearing of the sd peton, or until further order. Penerley Mining Co., M. R., 2 July, 1877. B. 1162.

Form 591.

Restraining sheriff from selling.

Form 592.

Restraining removal of goods.

Form 593. Restraining removal or

According to the present practice, an order to stay proceedings is the proper order to take when it is desired to stop the issue of execution.

Upon motion, &c., for W., a contrib of the above-named co, who alleged that a judgmt had been obtained against the sd co by the Bank, and that an action is now pending against the sd co at the suit of R., that a peton for the winding-up of the sd co was, on the 16th April, 1878, preferred unto this Ct by the sd W., and upon reading the sd peton, &c., and the petr [undertaking as to damages], This Ct doth order that the Sheriff of Middlesex be restrained until the hearing of the sd peton, or until further order, from selling any goods of the sd co seized or to be seized by him under the execution issued on the sd judgmt or under any other execution to be issued under any judgmt to be obtained in the sd action by R. Crown Match Co., M. R., 17 April, 1878. A. 680.

Upon motion, &c., by counsel for the G. C., Limtd, the petrs named in the peton preferred unto this Ct the 1st of Nov. 1878, &c. [undertaking as to damages], Let the Sheriff of the Co. of Derby and the pchaser of the plant, engines, and other ppty of the sd co and their respive agents be respively restrained until after the hearing of the sd peton or until further order of this Ct from removing the plant, engines, and other ppty of the sd co sold on the 2nd of Nov. 1878, by the sd Sheriff under an execution in an action instituted by R. against the sd co in the Exch. Div. of the High Ct of Justice. Belper Laund Colliery Co., Malins, V.-C., 6 Nov. 1878. A. 1885.

-ofUpon motion, &c. for the prov. off. liq. of co, and upon reading, &c., and [undertaking as to damages], Let R., of, his servants and agents, be restrained until over the 18th day of May, 1876, or sale of goods. until further order of this Ct, from removing or selling the goods now on the premes situate at No. 17, Garrick Street, &c., in the afft mentd; And let the sd prov. off. liq. be at libty to give the sd notice of motion for an injunction for the 18th day of May, 1876. British Guardian Life Assurance Co., Limtd, Hall, V.-C., 15 May, 1876. A.

Form 594.

Restraining sale.

878.

Upon motion [ex parte on behalf of petr--usual undertaking], Let B. & P. be restrained until after the hearing of the sd peton or further order from selling or removing any of the plant, machinery, or other