Form of Agreement.

A form of agreement between the official liquidator and a contributory is given in the schedule to the Gen. Order of Nov. 1862, No. 50, and that form is generally followed as closely as may be, but sometimes the contributory agrees to pay a sum by instalments, and the following clause is always required to be inserted.

6. Provided always that nothing herein contd shall prejudice or affect the rights of the sd co, or of the sd off. liq. or of the creditors of the co against any contribs of the sd co, whether as present or past members thereof or otherwise, and that the liability of such members to contribute to the assets of the co shall remain the same as if this agreemt of compromise had not been made, except only to the extent of the sd sum of -7. so to be pd as afsd.

Form 644.

Upon the applicon of the off. liq., &c., Let the agreemt for compromise Order sanctioning agreement dated, &c., and made, &c., be sanctioned. for compromise.

mise.

Upon the applicon, &c., Let the off. liq. of the sd Bank be at libty to Form 645. accept from the applicant the sum of 1007. together with 107. 10s. Od. Order sanctionfor costs, in the whole 1107. 10s. Od. in discharge of the applicant's ing comproliability as a contriby of the sd Bank and otherwise, and in discharge of all claims of the sd Bank against him. London and Suburban Bank Limtd, Hall, V.-C., 9 May, 1878. 894 B.

In some cases in order to avoid the expense of an agreement, the liquidator applies for liberty to compromise, as in the above case.

Upon the applicon of W., the liq of co, and upon hearing the solor for Form 646. the sd liq, and upon reading an afft of M. filed, &c., Let the sd liq be at Another. libty to compromise with the sd M. in respect of his liability for calls due to the sd co by accepting the sum of 207., together with the costs of this applicon, such costs not to exceed the sum of 51. 5s. Od. in full satisfon and discharge thereof. Welsh Steam Coal, 19 Sep., 1876.

B. 1609.

Compromises with creditors and others.

Upon the applicon of the off. liq., &c., Let the sd off. liq. be at libty to Form 647. compromise the action commenced by the above-named co (with the Liberty to sanction of the Ct) against M. upon the terms embodied in the exhibit official liquidaB. to the afft of the sd off. liq. being the proposed minutes of judgmt in mise action. the sd action signed by the solors for the respive defts. Mendip Hematite Co., Malins, V.-C., 14 Jan. 1878. B. 570.

For order in winding up giving official liquidator liberty to compromise action of company against Grant and others, as regards two of the defendants upon payment of 1,000l. a-piece, see Lisbon Steam Tramways, Malins, V.-C. 13 June, 1878. B. 1221. And see Form 326.

L L

tor to compro

Form 647.

Form 648.

Liberty to compromise with debtor.

Form 649.

Compromise with mortgagee.

Form 650.

Order giving liberty to compromise.

For order on motion giving official liquidator liberty to compromise landlord's claim, 2,000l. to be paid by company, and certain leaseholds and chattels to be given up to company, see Victoria & Fenton Co., Bacon, V.-C., 24 Jan. 1878. B. 429.

For order giving official liquidator liberty to release equity of redemption in patents, see Metal Tube Co., Hall, V.-C., 17 Mar. 1878. B. 478. As to the jurisdiction, see General Share Co., 20 C. Div. 260.

Upon the applicon of the off. liqs., Let the applicants upon W. ofpaying to them the costs of and incident to this applicon, such costs to be taxed in case the parties differ, be at libty to accept from W. by the instalmts mentd in the sd afft the sum of 577. 16s. 5d. in full discharge of a debt of 1527. 12s. 11d. due from the sd W. to Bank prior to its suspension, such debt being in respect, &c., Libty to off. liqs. to apply as to costs of applicon if W. does not pay. West of England, &c., Bank, Fry, J., 7 July, 1879. B. 1421.

Upon the applicon of S. by summons, &c., and the sd C. as such offliq. as afsd by his solors admitting that the sum of 76,3007. is now due from the sd co to the sd S. for principal on the indres of mtge and bill of sale in the summons and afft mentd, and the sum of 37907. for interest thereon up to this day, making together 80,0907., and the sd C. as such off. liq. admitting that the amount due to the sd S. largely exceeds the value of the mtged ppty, And the sd C. as such off. liq. claiming that sundry chattels now on or about the works and land comprised in the sd mtge are not subject to the sd mtge and bill of sale or either of them: And the sd S. without admittiug such claim agreeing to pchase all the interest (if any) of the sd co or the sd off. liq. thereof in the sd chattels for the sum of 2007.: It is by consent ordered that the sd co as from the date hereof stand absolutely debarred and foreclosed of and from all right, title, interest and equity of redemption of and in the sd mtged ppty And let the sd co and the sd off. liq., upon paymt by the sd S. to the sd off. liq. of the sum of 2007. and upon being required so to do, release and convey the sd equity of redemption and all right, title and interest to and in the sd chattels to the sd S. or as he shall direct at his expense, and either party is to be at libty to apply as he or they may be advised. Britannia Iron Works, 8 Aug. 1877. A. 1551.

Upon the applicon of W. P. & L. the liqs of the above-named co, and upon hearing the solors for the applicants, and upon reading the London Gazette of the 15th June, 1875, containing a notice of resolution to wind up the sd co voluntarily and of the appointmt of liqs, and upon reading an afft of W. P. & L. filed 1 Aug. 1877: Order that the sd liqs be at libty to compromise the cross claims made in the proceedings for winding up by the sd co on the one hand against Messrs. T. W. & Sons, ofand the sd Messrs. T. W. & Sons against the sd co on the other hand, upon the terms of the sd co and the sd Messrs. T. W. & Sons

mutually foregoing and releasing the sd claims against one another. Form 650. Humphreys & Pearson, Malins, V.-C., 6 Aug. 1877. A. 1532.

Although the above and the following orders were made in a voluntary winding-up, they are of course equally useful as precedents in a compulsory winding-up.

For order giving liberty to refer to arbitration, see supra, Form 502.

Upon the applicon of W. the off. liq. of the above-named co, by sum- Form 651. mons, dated, &c., for leave to take proceedings to enforce paymt of the Compromise. amount due by T.: Order that the agreemt dated the 26 Oct., 1883, made between W. the off. liq. of the one pt, and T. of the other pt, to compromise the debt of 2,1007. due from the sd T. as a contriby of the sd co, by accepting the sum of 2007. in discharge thereof by the paymt of 1007. in cash, and two promissory notes of 501. each respively, payable on, &c., the sd T. waiving his claim of 1,1817. 2s. 8d., certified to be due to him by the sd co by the chief clerk's certificate, dated 16th day of March, 1883, be confirmed and carried into effect. And order that the monies to be received by the sd off. liq. under the sd compromise be accounted for by him in his account as such off. liq. Dowlais Iron Co., Kay, J., Dec., 1883.

In the matter, &c.

MEMORANDUM.

Form 652.

Memorandum

The Master of the Rolls has directed a meeting of the creditors of the of direction for meeting. above-named co to be summoned pursuant to the above statute for the ppose of ascertaining their wishes as to continuing to carry on the works with the view of effecting a sale thereof as a going concern, and that such meeting shall be held on, &c., at the office of the off. liq., No. Old Jewry, in the City of London. The judge has appointed G. the sd off. liq. to act as chairman at such meeting.

Meetings of creditors or contributories are frequently directed pursuant to s. 91 of the Act of 1862 for the purpose of ascertaining their wishes in regard to matters connected with the winding-up. See as to such meetings Rules 45, 46, and 47, and Forms 45, 46, 47, 48, and 49 in Schedule to the Rules. The meeting is very commonly called pursuant to a memorandum as above, but sometimes an order is made.

A meeting may be called to consider whether a winding-up order shall or shall not be made. Thus in the case of The Emma Silver Mining Co., a petition having been presented, Malins, V.-C., directed a meeting of members to be convened "for the purpose of ascertaining their wishes as to certain matters relating to the winding up of the company."

At the foot of the notice was a statement as follows:

The following resolutions have been suggested by his [Honour] the ViceChancellor, as embodying the points upon which he desires to be informed of the wishes of the above members:-1. “ That it is the opinion of this meeting that the operations of the company can be carried on with a reasonable prospect of success, and that the Vice-Chancellor, Sir R. Malins, be requested not to make any order for the winding up of the company." If such motion be negatived, the following to be moved as a substantive motion:-2. "That

Form 652. it is the opinion of this meeting that this company be wound up compulsorily by the Court under the petition of Mr. A., now pending."

And a meeting is sometimes called to consider in what way the company shall be wound up. City & County Bank, 10 Ch. 470.

For order on application of liquidator for liberty to call meeting of creditors and members to ascertain whether they desired vendor's lien of 10,000l. to be paid out of the assets, and if so, liquidator to pay same off, but the payment not to affect rights of secured and unsecured creditors, inter se. South Durham Iron Co., Hall, V.-C., 1 Aug., 1877. B. 1476.

As to meetings under the Joint Stock Companies Arrangement Act, 1870, see infra, "Arrangements."

Costs.

As to the costs of the parties to the winding-up petition, see supra, p. 423,

et seq.

The petitioner's costs where a winding-up order is made are a first charge on the assets. Audley Hall Cotton Co., 6 Eq. 245; and he is entitled to them free of set-off. General Exchange Bank, 4 Eq. 138.

Accordingly it is not uncommon to pay them early in the winding up. See Form 560.

:

As to costs directed to be paid by the company in liquidation, or by official liquidator such costs are to be paid in full out of the assets, and not merely proved for. Madrid Bank v. Pelly, 7 Eq. 442; Ex parte Levick, 5 Eq. 69; Ez parte Smith, 3 Ch. 130; Ferrao's case, 9 Ch. 355. And such costs do not take priority over the official liquidator's costs. Dronfield Co., 23 C. D. 511; and compare with In re Home Investment Society, 14 C. D. 167. Dominion of Canada Co., W. N. 1884, 38; 32 W. R. 425.

As to the official liquidator's costs, i. e., the costs of the winding up :—
As a general rule he is entitled to his costs of all proceedings properly taken.
Silver Valley Co., 21 C. Div. 381.

If the assets are deficient, the Court can give the costs incurred in winding up the company priority, s. 110 of the Act. In such case they will rank next after the petitioner's costs, and before the official liquidator's remuneration, In re Massey, 9 Eq. 367; In re Trueman's Estate, 14 Eq. 278; Webb v. Whiffin, L. R. 5 H. L. 735. But they only rank, pari passu, with costs ordered to be paid. Dronfield Co., and other cases, ubi supra.

Where there are incumbrances such as mortgage debentures, and the mortgaged property is realised in the winding up, the liquidator's costs, charges, and expenses of the realisation are the first charge, the incumbrances rank next, and the general costs of the winding up are payable only out of the surplus, if any. Oriental Hotels Co., 12 Eq. 126; Regent's Canal Co., 3 C. Div. 411.

The solicitor of the official liquidator has no claim for the costs of the winding up against the official liquidator personally, Anglo-Moravian Co., 1 C. D. 130; Dominion of Canada Co., ubi supra; nor has he any lien on the file of proceedings for such costs. Ex parte Pullbrook, 4 Ch. 627.

For orders to tax costs of provisional liquidator, see supra, Forms 411, et seq.

The official liquidator applies periodically by summons to have his costs, charges, and expenses taxed. The following is the usual order, and the summons can readily be framed from it.

As to official liquidator's position, see Silver Valley Mines, 21 C. Div. 381.

Form 653. Upon the applicon of the off. liq. of the above-named co, and upon Usual order to hearing the solors for the applicant, and upon reading an order, &c., Refer it to the taxing-master to tax the costs, charges, and expenses of the applicant as such off. liq. as between solor and client from the time of his appointmt [or from the day of last, the foot of the last

tax.

taxation] up to and including this order; [And in taxing such costs Form 653. the taxing-master is to have regard to any sums of money received on account or in respect of costs of compromise with any contribs or otherwise;] And it is ordered that such costs, charges, and expenses when taxed be pd out of the assets of the sd co as and when the judge shall give directions for that ppose.

Sometimes the paragraph between brackets is not inserted in the summons, but it is almost always inserted in the order. Where the liquidator is engaged in legal proceedings on the company's behalf, the application and order generally make special provision for the taxation thereof. See Forms 641 et seq. And special directions are often given as to including costs incurred on appeal, &c.

The order to pay is usually obtained on a subsequent application. See Forms 662 and 663. Sometimes, however, the liquidator, with the sanction of the chief clerk, pays the costs when taxed without any order, and is allowed them in his next account.

of action.

Tax, &c., including, &c., and including the plt's costs of the action Form 654. brought by the above-named co against G. and others now pending in Tax costs this Ct, the distinctive mark to such action being, &c., as between solor including costs and client, but in taxing such costs, charges, and expenses, and costs respively the taxing-master is to have regard to any sums of money received in respect of costs of compromise with any contribs or otherwise, And costs, &c., when so taxed to be pd by applicants out of assets of co as and when judge gives directions for that ppose. Lisbon Steam Tramways Co., Limtd., Malins, V.-C., 15 June, 1878. 1158 B.

Tax, &c., and also including the costs of and relating to the appeal in Form 655. the case of P. W. and J. and H., contribs of the sd co, And Let such Order to tax costs, &c. Wincham Ship &c., Co., Bacon, V.-C., 3 June, 1878. 1085 B. including costs of appeal. See Silver Valley Mines, 21 C. Div. 381.

Tax, &c., and Let the sd costs when taxed be pd by the applicant out Form 656. of the assets of the sd association, and be allowed him in his account as Tax and pay. such off. liq. Universities Corporation, Hall, V.-C., 20 May, 1882.

B. 947.

solicitors.

Upon the applicon of Messrs. M. & M. the late solors for W. the off. Form 657. liq. of co, and upon hearing the applicants and the now solors for the sd Order where off. liq., and upon reading the order dated, &c., Refer it, &c., to tax the change of costs, charges, and expenses of the sd W. as such off. liq. as afsd during the time when the sd applicants were his solors from the 17th June, 1876, down to the 14th June, 1877, when the now solors of the sd off. liq. were appointed, including therein the costs of the applicon and of this order, and in taxing such costs [regard compromise], And Let the amount of such costs, charges, and expenses when so taxed be pd by the sd off. liq. out of the assets of the sd co. Lisbon Steam Tramways, Malins, V.-C., 20 June, 1877. B. 1127.