Company Precedents, for Use in Relation to Companies Subject to the Companies Acts 1862 to 1883

Form 657.

Form 658.

Affidavit as to

Where the official liquidator changes his solicitors and the assets are not sufficient to pay the whole of the costs of the successive solicitors, the solicitors will, as a general rule, be paid rateably so far as the assets will extend. In re Audley Hall, &c., Co., 6 Eq. 245.

We, each speaking positively for himself, and to the best of his knowledge and belief as to other persons, say that we have not, nor have costs received nor has either of us, nor have nor has any other persons or person by in respect of our or either of our order, or for our or either of our use, received any compromises, sum or sums of money in respect of the costs of the off. liq. of the abovenamed co. [save and except the sums mentd in the first schedule hto.]

&c.

2. And we, each speaking, &c., any sum or sums of money in respect of the costs of compromises with any contribs of the sd co or otherwise [save the sums mentd in the second schedule hto].

An affidavit by the official liquidator and his solicitor, as above, is requisite on taxation.

Form 659.

Taxing Master's certificate.

Form 660. Another.

Form 661.

In pursuance of the order in these matters bearing date the

I have been attended by the solor for the off. liq. of the abovenamed co, and in his presence I have taxed the costs, charges, and expenses of the sd off. liq. thereby directed to be taxed at the sum of 4007., and I find that the sum of 1307. has been received in respect of compromises with contribs or otherwise, which being deducted from the sd sum of 4007. there remains the sum of 2717. which is due in respect of such costs: All which I humbly certify to this Honourable Ct.

In pursuance of an order in these matters dated &c., I have been attended by the solors for the off. liq. of the sd co, and I have taxed the costs, charges, and expenses of the sd off. liq. by the sd order directed to be taxed at the sum of -l., and I find by the afft of S. filed this

of that not any sums of money whatever have been received in respect of compromises with contribs or otherwise. All which I humbly certify to this Honourable Ct.

On the pt of the off. liq. of the above-named co that he may be at Summons for libty to pay -7. on account of costs to Mr. B., his solor in these liberty to pay matters.

Upon the applicon of C., the off. liq., &c., and upon hearing the solors for the applicant, and upon reading an order, &c., the afft, &c., and the certificate of the fund in the Bank of England: Let the sd off. liq. be at libty to retain and pay to his solors, Messrs. S. & C., the sum of 1677. 12s. 6d., being the amount of their costs, charges, and expenses as taxed pursuant to the sd order dated, &c.: And Let the sd off. liq. be at libty to retain out of such assets the sum of 2007. on account of his remuneration as such off. liq. of the sd co: And Let the sd off.

liq. be allowed the sd sums of 1677. 12s. 6d. and 2007. on passing his Form 662. accounts: And Let the costs of this applicon be costs in the winding up. Anglo-Continental Ship Co., Hall., V.-C., 25 May, 1878. A. 981.

See also Form 653 supra.

Very commonly where liberty to pay is given, no order is drawn up, but the chief clerk makes a note (Order 55, r. 835) that liberty has been given and that the amount paid is to be allowed in next account.

Another,

Upon the applicon of C. the off. liq., &c. Let the sd sum of Form 663. 637. 158. 3d. [in bank] be pd to the sd C. as such off. liq. as afsd in discharge of his costs taxed under the sd order of 1 May, 1878, he undertaking thereout to satisfy the claim (if any) of K., solor, in respect of charges relating to the appointmt of the applicant as off. liq. of the sd co And [dissolution order: vacate recognisance]. Isle of Wight Ferry Co., 9 August, 1878. A. 1882. See also Forms 675 et seq.

That it may be referred to the proper taxing-master to tax as between Form 664. solors and clients the costs, charges, and expenses of the applicant as Summons to such off. liq. from the foot of the last taxation up to and including the tax costs, &c., including costs of the order to be made hereon, and also that the taxing-master anticipated do tax the anticipated costs of the sd applicant from the date of such costs of dissolving last mentd order to the final winding-up of the sd co, including therein company. the costs of vacating the recognisance entered into by the applicant and his sureties.

Where a company is about to be dissolved, it is not uncommon to apply to have the costs of dissolution taxed by anticipation as above.

Appeals.

Chancery Division,

In the Court of Appeal.

Take

day of

In the matter, &c.

day the

notice that the Ct will be moved on 188-, or so soon thereafter as counsel can be heard, by Mr. A. as counsel for and on behalf of [B. and C. creditors of the named co, or as the case may be] that [here state the nature of the applicon, as the order made by His Lordship the Vice-Chancellor Sir

in the above matters on the day of - may be discharged or varied, or that such order may be made as to this Honourable Ct shall seem fit.]

Dated this

day of

188-. 9

[Add solors name as in Form 314.] To [name of respondent, as: B. the off liq. of the above-named co, and to Mr., his solor.]

The time for appealing from any order or decision in a winding up is 21 days, to be computed in the case of an affirmative order from the time when the order

Form 665.

Notice of appeal motion.

Form 665. is signed, entered, or otherwise perfected, and in the case of a refusal, from the date of refusal. Order LVIII. r. 9. See Risca Coal Co., 4 D. F. & J. 456; 31 L. J. Ch. 429. The rule applies to the winding-up order itself. In re National Funds Co., 4 C. D. 305. As to extending time, see Manchester Economic, 24 C. Div. 488; South African Syndicate, 28 S. J. 152.

Form 666.

Order on appeal dis

charging order.

Where the order appealed from is in the nature of an interlocutory judgment finally settling the rights of the parties, the notice of appeal must be a 14 days' notice in other cases a 4 days' notice is sufficient. In re Stockton Iron Co., 10 C. D. 349. Order LVIII. rr. 2, 9.

An appeal is brought by notice of motion as above, which must be served within the time limited. The appeal must be entered with the proper officer of the Court of Appeal before the day named in the notice to appeal for the hearing. Order LVIII. r. 8. In re National Funds Co., ubi supra.

Where an ex parte application has been refused by the Court below, it can be renewed in the Court of Appeal within 4 days from the date of refusal, or within such enlarged time as a judge of the Court below or of the Appeal Court may allow. Order LVIII. r. 10.

An appeal does not operate as a judge or the Court of Appeal order. If, therefore, it is desired to stay proceedings, application should be made accordingly. The application to stay must be to the Court below in the first instance, and, in case of refusal, to the Court of Appeal. The 21 days' limit does not apply in such case. Cropper v. Smith, 24 C. Div. 305.

stay of proceedings, except so far as the Order LVIII. r. 16.

Where it is desired to appeal from the order of a judge at chambers, application must first be made by motion in Court to the judge to discharge the order, or else special leave to appeal must be obtained from him or from the Court of Appeal. Judicature Act, 1873, s. 50. Holloway v. Cheston, 19 C. D. 516. But see Butler's Wharf, 21 C. D. 131; Manchester Val de Travers v. Stagg, 47 L. T. 556. The application to the judge should be made within the 21 days' limit. Dickson v. Harrison, 9 C. D. 213; Heatley v. Newton, 19 C. D. 334. The Court of Appeal will give leave where the judge certifies that he does not wish the case to be reheard, or where the Court is otherwise satisfied that the case has been deliberately decided by the judge. Thomas v. Elsom, 6 C. D. 346; Northampton Coal Co. v. Midland, 7 C. Div. 500.

The official liquidator or any creditor or contributory can appeal. As regards the winding-up order, the company can also appeal, but in such case the Court of Appeal will readily entertain an application for security for costs. In re Diamond Fuel Co., 13 C. D. 400, 28 W. R. 309.

Where the liquidator in a winding-up by or under the supervision of the Court desires to appeal, he should apply to the judge for liberty so to do. In re City & County Co., 13 C. D. 483; Silver Valley Mines, 21 C. D. 381. Form 416. The Court of Appeal will not give the liquidator his costs out of the estate, but will leave him to apply in the winding up, Wescomb's case, 9 Ch. 553; In re City & County Co., 13 C. D. 483, and where the appeal is dismissed with costs, the liquidator will be ordered to pay them personally, the intention being that he is to pay whether he gets them out of the estate or not. Ferrao's case, 9 Ch. 355. In either case the liquidator can apply to the judge in the winding up to be allowed the costs. See Form 657.

Upon motion by way of appeal this day made unto this Ct by counsel for C. and B. the surviving liqs of the above-named co, and upon reading the order dated 13 Mar., 1878, made upon motion, &c., whereby it was ordered, &c., Let the sd order dated the 13 Mar., 1878, be discharged, And let the sd R., &c., pay to the sd C. and B. their costs of the sd motion upon which the sd order was made, and of the sd order and of this appeal, including the costs of the shorthand notes of the judgmt

of the V.-C. Malins, such costs to be taxed, &c. Devonshire Silkstone Form 666. Co., Ct of Appeal, 8 July, 1878. A. 1451.

order appealed

Upon motion by way of appeal, &c., by counsel for P. and B. that the Form 667. order dated 25th March, 1878, made upon the summons of the off. liq. Order on issued in the above matters against the appellants and dated 26 October, appeal 1877, might be rescinded, and that the same might be dismissed with affirming costs to be taxed and pd by the off. liq. to the appellants, and upon from. hearing counsel for the off. liqs., &c., the deposition of the sd taken upon his cross-examination filed 9th of May, 1878, Let the sd order dated the 25 March, 1878, be affirmed, and let the sd P. and B. pay to the off. liq. his costs of this appeal, such costs to be taxed, &c. British Farmers, c., Co., Ct of Appeal, 15 May, 1878. A. 935.

Whas B. E. M. and J. the petrs in the order made in these matters Form 668. dated the 1st of June, 1878, named, did on the 1st of July, 1878, serve Order refusing the above-named co with notice that this Ct would on the 15th of July appeal. be moved by counsel for the sd B. E. M. and J. by way of appeal from the sd order that the sd order might be discharged and that in lieu thereof it might be ordered that the sd co be wound up by the Chancery Division of the High Ct of Justice, with all proper directions for that ppose including a direction for paymt of the applicants' costs in reference to the sd order and the application, or that such other order might be made as to Her Majesty's Ct of Appeal might seem fit, and counsel for the sd B. E. M. and J. this day moving this Ct that the above-named co by their secretary might be ordered within 7 days after service to make and file a full and sufficient afft stating whether they have and have had in their possession and power any and if any what documts relating to the subject-matter of the sd peton, and accounting for the same, with the usual directions for production and inspection thereof, And in case this Ct should be of opinion that the notice of appcal given by the applicants on the 1st of July, 1878, was not within the time limtd for that ppose, then that the applicants might be at libty to prosecute such appeal notwithstanding, and upon hearing counsel for the sd co and reading the sd order dated the 1 June, 1878, an afft, &c., This Ct doth not think fit to make any order on the sd motion, and doth order that the sd appeal motion be dismissed, and that the sd B. E. M. and J. do pay to the sd co their costs of the sd motion, and also their costs occasioned by their having been served with the sd notice of motion of the 1st of July, 1878, such costs to be taxed by the taxing-master. Brick and Stone Co., Limtd., Ct of Appeal, 18 Dec., 1878. A. 2389.

As to ordering production of documents on appeal, see National Funds Assurance Co., 24 W. R. 774; W. N. 1876, 192, and supra, p. 502.

Upon motion, &c., for J. of [and other shareholders], and upon Form 669. hearing counsel for P. and V. creditors of the co upon whose peton an Order order was made 18 May, 1877, to wind up the co, And it appearing by restraining

pending

appeal.

Form 669. the receipt of one of the cashiers of the bank dated 23 May, 1877, that F. the solor of the sd shareholders has lodged at the bank to the credit of a Chancery Suspense account the sum of 11167. 3s. 9d., Let the advertisemts of the sd order dated 18 May, 1877, to wind up the sd co be postponed until the hearing of the appeal from the sd order, And Let the sd shareholders on or before 28 May, 1877, do all necessary acts pursuant to the 31st Chancery Funds Rules, 1874, for the ppose of having the sd sum transferred by them into Ct to the credit of these matters. Re the Paris Skating Rink Co., Limtd., In the matter of the Cos Acts 1862 and 1867, Hall, V.-C., 23 May, 1877. 840 B. See 5 Chancery Division, 959, and supra, Form 345.

Form 670.

Liberty to appeal.

Where there is an appeal, the advertisement can be restrained as above.

Upon the applicon of B. and Y. the off. liqs., &c., Let the sd applicants be at libty to take all necessary and proper proceedings by way of appeal from the order dated, &c., made in the matter of an appeal from the High Ct of Justice, Common Pleas Division, in a cause of plt. and the sd co deft. Hooper's Telegraph Works, M. R., 14 June, 1877. A. 1311.

For order giving liberty to a creditor to appeal against an order made in an action against the company in Ireland, and to use the name of the company, he undertaking to indemnify the company against all costs and to pay 1201. into Court by way of security, see International Patent Pulp, &c., Co., M. R., 16 Mar. 1877. A. 519.

Form 671. Upon the applicon of the liq of co and upon reading, &c., and an Order allowing order made in the suit of, &c., whereby it was ordered that, &c. [bill liquidator's dismissed], and it was further ordered that such order should be without costs of appeal. prejudice to any applicon the liq of the sd co might make to the judge at chambers for the allowance of the costs of the sd co in the sd suit of out of the assets of the sd co, Order that the costs of the abovenamed co in the sd suit, &c., and of this applicon and consequent thereon be allowed as costs in the winding up of the above-named co. South American Co., Malins, V.-C., 9 Mar., 1878. A. 421. Form 506.

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Company Precedents, for Use in Relation to Companies Subject to the ...