on his sd afft, filed, &c., and the examination and cross-examination of Form 625. other witnesses in these matters: And Let the sd off. liq. be at libty to with provision employ J. of, interpreter and translator of the Portuguese, French, as to interand other languages, to act as interpreter and translator into English of preter. the viva voce evidence to be given in the French language by the sd P. before the sd examiner: And let the translation of such evidence which is to be made by the sd J. be adopted and filed as truly representing the vivâ voce examination or deposition of the sd P. Portuguese Contract Co., 10 June, 1870.

Malins, V.-C.

attendance of witness.

Upon the applicon of the off. liq., &c., Let G., B., and C. attend before Form 626. S. H., esq., barrister-at-law, the special examiner appointed in the above Order for matters by an order dated 16 April, 1878, at his chambers, No.-, Court, Temple, in the city of London, for the ppose of being examined on behalf of the sd off. liq. with reference to the claim against the sd co made by the sd G. Milan Tramways, Hall, V.-C., 9 July, 1878. B. 1902.

If a witness does not attend before the examiner, an order can be obtained requiring him to attend. See Dan. Pr. 803. Lisbon Steam Tramways, 2 C. D. 575. And default is contempt of Court. Rules of 1883, 490.

Evidence of Witnesses.

In the winding-up of a company, occasion very commonly arises for obtaining the oral evidence of witnesses.

In cases where s. 115 of the Act applies [infra, p. 504], the evidence may be obtained under that section; but in other cases the witness will either make an affidavit, or if he will not do this, the party requiring his evidence can examine him before the examiner, or before a special examiner, and make use of the deposition so obtained. An order referring it to the examiner must be obtained. The attendance of the witness can be procured by writ of subpoena, ad testificandum or duces tecum. See s. 40 of 15 & 16 Vict. c. 86, and Rules of 1883, 487, et seq. For forms of subpoena, see Rules of 1883, App. J., Forms 1 to 7. For orders to attend, see Forms 618, 632.

Notices to produce and admit documents.

In the matter, &c.

Take notice that you are hby required to produce to the Ct, at the Form 627. hearing of the peton in these matters, all books, papers, copies of letters, Notice to and other writings and documts in your custody, possession, or power produce at containing any entry, memorandum, or minute relating to the matters hearing of in question in these matters or any of them, and particularly, &c. Dated, &c.

petition.

P. Q., solor to the above-named co
[or as the case may be].

his solors

To Mr.

and Messrs.
[or as the case may be].

Notice to produce is generally given by either side in the case of a windingup petition. Dan. Pr. 774. As to notice to produce documents referred to in pleadings or affidavits, see Order XXXI. r. 15, et seq., and Credit Co., 11 C. D. 256; National Funds Assur. Co., W. N. 1876, 192.

Notice to

Take notice that you are hby required [in psuance of the order [see produce before Form 633, et seq.] made in these matters, dated, &c.,] to produce [state special the special examiner appointed herein, at his examiner.

where; as] before
chambers, No.

on the

day of 1880, at

o'clock in the forenoon, all books, &c. [as above], relating to the matters in question in these matters [here specify the parlars; as: so far as regards the summons issued the of and the claim of A. B. herein], and in

parlar the following, that is to say [here specify them].

Notice to produce documents at the hearing of a motion or summons, or at examination of witnesses, is frequently given. See Dan. Forms, p. 931 et seq.; and Rules of 1883, Order XXXI.

As to notices to admit, see Rule 54; Dan. Forms, p. 325; Rules of 1883, Order XXXII.

As to enforcing production of documents referred to in affidavit or pleading, see Rules 357, 359, 360, and Quilter v. Heatley, 23 C. Div. 49; 31 W. R. 331. As to subpoena duces tecum, see Rule 502.

Examination and discovery under s. 115 of the Act.

S. 115 of the Act provides that, "the Court may, after it has made an order for winding-up a company, summon before it any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or any person whom the Court may deem capable of giving information concerning the trade, dealings, estate, or effects of the company; and the Court may require any such officer or person to produce any books, papers, deeds, writings, or other documents in his custody or power, relating to the company; and if any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the Court at the time appointed, having no lawful impediment (made known to the Court at the time of its sitting, and allowed by it), the Court may cause such person to be apprehended, and brought before the Court for examination; nevertheless, in cases where any person claims any lien on any papers, deeds, or writings or documents produced by him, such production shall be without prejudice to such lien, and the Court shall have jurisdiction in the winding-up, to determine all questions relating to such lien." See also s. 117. The powers conferred by the above section are frequently exercised, e.g. (1), where the liquidator, from an examination of the books and papers of the company, or otherwise, has reason to suspect that there may be some claim under s. 165 (infra, p. 507); or, (2), where he thinks there may be ground for taking proceedings for an action against promoters or others; or, (3), where proceedings are pending against the company, and he desires to ascertain whether he can prudently proceed with or defend an action. Massey v. Allen, 9 C. D. 165; Bateman's case, 15 W. R. 2145; 15 L. T. 495.

It is not necessary to make out a primâ facie case before the summons will be issued; a case of suspicion may be enough. Re Gold Co., 12 C. Div. 77.

For cases of examination, see English Joint Stock Bank, 3 Eq. 203; Swan's case, 10 Eq. 675; Fricker's case, 13 Eq. 178; Financial Insurance Co., 36 L. J. Ch. 687; Trowen and Lawson's case, 14 Eq. 8; Clement's case, 13 Eq. 179; Re Cathcart, 5 Ch. 703; Buckley, 267. As to interrogatories, see Alexandra Co., 16 C. D. 58. As to appeal by witness, Silkstone Co., 19 C. Div. 118; Heiron's case, 15 C. Div. 139.

In order to obtain a summons the liquidator need not file an affidavit; he makes a written statement. Re Gold Co., 12 C. Div. 77; Carter's case, 19 W. R. 55; 23 L. T. 446. Prima facie the examinations will be entrusted to the liquidator, but, if he refuses to act, the Court may authorise some creditor or con

tributory. Silkstone Co., 19 C. Div. 118. As to who may attend, see Grey's Form 628. Brewery, 25 C. D. 400; 32 W. R. 381; 50 L. T. 14. Supra, p. 483.

Formal parts: see supra, Form 381.

day of

18-, at

examination.

A. B., of, &c., and E. F., of, &c., are hby severally summoned to Form 629. attend at the chambers of the Master of the Rolls [or Vice-Chancellor Summons to -], in the Rolls Yard, Chancery Lane [or No. Lincoln's Inn], attend for in the County of Middlesex, on of the s. 115. clock in the -noon, to be examined on the pt of the off. liq. [or of W. D., of, &c.] for the ppose of proceedings directed by the Master of the Rolls [or the sd Vice-Chancellor], to be taken before me in the above matter. [And the sd A. B. is hby required to bring with him and produce, at the time and place afsd, a certain indre [describe documts], and all other books, papers, deeds, writings and other documts in his custody or power in anywise relating to the above-named co]. Dated this day of

18-.

in the

G. H., Chief Clerk. This summons was taken out by Messrs. C. & D., of county of, solors for the off. liq. [or for the sd W. D.].

The attendance of a witness for examination under s. 115 of the Act, should be secured by chief clerk's summons as above (which is copied from Form 54 in Schedule to Rules), and not by subpoena. Re English Joint Stock Co., 3 Eq. 203. In order to procure the issue of the summons an appointment should be obtained, and if the circumstances stated to the chief clerk justify, he will issue the summons. See as to the practice, In re Gold Co., 12 C. Div. 82; and Buckley, 268 et seq.

If the person summoned does not attend, the Court will make an order requiring him to attend. Lisbon Steam Tramways Co., 2 C. D. 575, infra, p. 506. The power given by this section is frequently exercised especially with a view to proceedings under s. 165 of the Act. See In re Gold Co., ubi supra.

The witness is entitled to counsel, and to re-examination. Cambrian Co., 20 C. D. 376.

As to what the witness must disclose, see Silkstone Co., 19 C. Div. 118; Buckley, 271.

summon.

Upon the applicon of the off. liq., &c., by summons dated 21 April, Form 630. 1877, and upon hearing the solors for the applicant, and upon reading Order giving the orders in these matters dated respively 7 July, 1876, and 4 August, liberty to 1876, and the afft of B. of service of the sd summons on the persons hereinafter named, filed 3 May, 1877: The judge doth hby appoint M. of, esquire, barrister-at-law, special examiner for the ppose of taking the evidence of witnesses in these matters; And let the sd off. liq. be at libty to summon before the sd special examiner the following persons for the ppose of their being examined respecting the affairs of the sd co, that is to say, H. L., R. L., F., S., B. & G. Mendip Hematite, &c., Co., Malins, V.-C., 3 May, 1877. B. 808.

Formerly an order as above was not uncommon, but since the new rules as to examiners the appointment of a special examiner will probably be less common. See supra, p. 502.

In the margin of the summons it is usual to write the following note: "Take notice that on the return of this summons it will be forthwith adjourned to

esq., the examiner appointed in this matter, before whom you will be

Form 630. immediately required to attend, in order that your examination may be proceeded with." And on the return the Chief Clerk indorses the summons.

Form 631. Upon the applicon of P. & W., the off. liqs. of the co, &c., Let J. be Another form appointed special examiner to take the examination, cross-examination, providing for and re-examination of the sd B. and others in reference to the affairs, shorthand ppty and effects of the above-named co and the other cos amalgamated notes. therewith, And let by consent such examination, cross-examination, and re-examination be taken down by a short-hand writer, and when taken let the depositions, authenticated by the signature of the sd examiner, be transmitted by him to the [Record & Writ Clerks' Office of the Ch. Div. of this Ct], there to be filed: And order that such depositions may be read in evidence in the course of any proceedings taken in the above matters with the authority of the judge to whose Ct the same may for the time being be attached. Cape Breton Co., Limtd, Malins, V.-C., 11 May, 1878. A. 849.

Form 632.

Another.

Form 633. Another.

When the

It is very common to employ a shorthand writer in such cases. shorthand notes have been transcribed, they must be read over to the witness, and he must be called on to sign the deposition. In re Sir John Moore Mining Co., W. N. 1878, 87.

Upon the applicon of J., the off. liq., &c., that A. & H. might be ordered, upon receiving due and reasonable notice, to attend at their own expense before esquire, the special examiner appointed in these matters, at his chambers, No., New Square, Lincoln's Inn, and be examined pursuant to the Chief Clerk's summons dated 25 May, 1878, and that the sd A. & H. might be ordered to pay the costs of the adjournmt before the judge in chambers on the 5th of June, 1878, and the costs of and consequent upon the sd applicon which upon [adjourned into Ct], and upon hearing, &c., and upon reading, &c., Order that the sd A. & H. do at such time and place as the sd examiner shall ppoint attend and be sworn and examined as witnesses in these matters, And order that the costs to be taxed by the taxing master of the applicant of the sd applicon in chambers and occasioned by the adjournmt thereof into Ct, including the costs of the Chief Clerk's summons dated 23 May, 1878, be allowed out of the assets of the sd co. International Contract Co., Hall, V.-C., 29 June, 1878. A. 1330.

Upon the applicon of the off. liq. of co to examine S. of as a witness in these matters, and upon hearing the solor for the sd off. liq. and the solor for the sd S., and upon reading an order, &c., Order that the sd S. do, upon paymt of his proper expenses, attend before Y. of -, barrister-at-law, the special examiner appointed in the above matters on the 20th of June, 1877, at 11 o'clock in the forenoon, to be examined on the pt of the sd off. liq. for the ppose of proceedings directed to be taken by the judge in the above matters, And the sd S. is hby required to bring with him and produce at the time and place afsd all books, deeds, writings, and other documts in his custody or power in anywise Saturn Silver Mining Co., 18 June, 1877. B. 1045.

relating to the sd co.

EXAMINATION OF PERSONS IN SCOTLAND.

S. 127 of the Act of 1862 empowers the Court to direct the examination in Scotland of any person for the time being in Scotland, whether a contributory of the company or not, in regard to the estate, dealings, or affairs of any company in the course of being wound up, or in regard to the estate, dealings, or affairs of any person being a contributory of the company, so far as the company may be interested therein by reason of his being such contributory, and contains provisions as to the mode in which the examination is to be effected. For order, see Contract Corporation, M. R., 20 Nov., 1877. A. 1131.

Misfeasance and breach of trust: s. 165 of the Act.

S. 165 provides that, "Where in the course of the winding up of any company under this Act, it appears that any past or present director, manager, official or other liquidator, or other officer of such company, has misapplied or retained in his own hands or become liable or accountable for any monies of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the Court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, manager, or other officer, and compel him to repay any monies so misapplied or retained, or for which he has become liable or accountable, together with interest after such rate as the Court thinks just, or to contribute such sums of money to the assets of the company by way of compensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the Court thinks just."

Orders are frequently made under the above section. The application is usually made by the official liquidator by summons, supported by the requisite evidence. In many cases, before taking proceedings, the official liquidator obtains the appointment of a special examiner under s. 115 [supra, p. 502, et seq.] and examines before him the supposed delinquent and other persons capable of throwing light on the transaction in question. The following are some of the cases in which orders have been made under this section. Stringer's case, 4 Ch. 475: Director ordered to repay dividend declared and paid to him under fraudulent and delusive balance sheet. Rance's case, 6 Ch. 104: Director ordered to repay bonus improperly paid to him. National Funds Assurance Co., 10 C. D. 118: Directors ordered to repay dividends improperly paid to shareholders out of capital. Alexandra Palace Co., 21 C. D. 149; Flitcroft's case, 21 C. Div. 519; 31 W. R. 174; British Imperial Assurance Corp.: Similar orders against directors. [See Form 637, infra.] McKay's case, 2 C. Div. 1: Secretary ordered to pay full nominal value of paid-up shares given him by vendor. De Ruvigne's case, 5 C. Div. 306; and Pearson's case, 5 C. Div. 336: Similar orders against directors whose qualification shares had been given them. Mitcalfe's case, 13 C. Div. 169: Similar order against director who had accepted shares from promoter. [See Form 544.] National Funds Assurance Co.: Directors ordered to make good amount which ought to have been invested in Government Securities, viz., half the premiums paid by policy holders. [See Form 636, infra.] Similar order against directors in British Guardian Life Assurance Co., 14 C. D. 335; 28 W. R. 945. Englefield Co., 8 C. Div. 388, and Form 634, infra: Directors ordered to make good a sum paid to a promoter "for preliminary expenses," out of which the directors' qualifications were provided. Railway, &c., Co., Marzetti's case, 28 W. R. 541; 42 L. T. 206: Director ordered to repay sums paid nominally for preliminary expenses, but really for rigging the market. In re Public Supply Association, W. N. 1880, 106: De facto director