Form 688.

Form 689.

Notice of call.

The list of contributories having been settled wholly or in part, the liquidator will from time to time make calls on the contributories under sub-sect. 9 of s. 133 of the Act. It is not necessary to give any notice of the intention to make a call, though it is sometimes done. The liquidator should make the call by an instrument in writing, which can be as in Form 689.

The call having been made, the liquidator will give notice thereof to the contributories. Such notice may be as follows:

of

In the matter of, &c.
day of

Take notice that on the

I, the undersigned

the liq of the above-named co, make a call of ——1. per share upon all the contribs of the above-named co [or as the case may be], and that the amount due from you in respect of the call so made is the sum ofl., which sum you are hby required to pay to me at my office situate, &c., on or before the

day of

next. In default of paymt, interest at the rate of p. c. p. a. will be charged upon the amount unpaid.

Dated, &c.

To W.

of

A. B., Liq.

Form 690.

Summons or notice of

motion to

enforce calls.

"m 691.

If the call is not duly paid, the liquidator will, if necessary, take proceedings to enforce payment.

Upon the hearing of an applicon on the pt of A. B., the liq of the above-named co, that the several persons named in the second column of the schedule hto, being respively contribs of the sd co, may be ordered to pay to the sd A. B. as such liq as afsd at his office situate at within four days after service upon them respively of the order to be made hereon, the several sums of money set opposite to their respive names in the seventh column of the schedule hto, being the amounts due from the sd several persons respively in respect of a call of ―l. per share made by the sd A. B. as such liq as afsd on the day of —, And that the sd several persons may be ordered to pay the costs of this applicon. [Schedule, see Form 674.]

Calls made in a voluntary winding-up can be enforced by action brought by the liquidator, in the name of the company, against the contributories, or by proceeding under s. 138 of the Act of 1862. The latter is the best course, and is generally adopted. In re Whitehouse & Co., 9 C. D. 595.

The application should be by motion or summons. See infra, Forms 693, 694.

Upon the applicon of E., the liq of co, by summons dated 2 June, ing 1877, and upon reading, &c., Let the several persons named in the second column of the schedule to this order, being contribs of sd co, on or before 20 July, 1877, or within four days after service of this order, pay to E. the liq of sd co, at his office, No.-, &c., the several sums set opposite their respive names in the sixth column of the sd schedule hto: such sums being the amounts due from the sd

and

several persons respively in respect of a call of 21. 10s. Od. per share Form 691. made by the sd liq. And also let the sd respively each pay to the sd E. the sum of one guinea costs. [Schedule as in Form 692.] Sheffield Purchasers Co., Malins, V.C., 2 July, 1877. B. 1185. See also Forms 692 and 693 infra.

Orders under S. 101.

Orders are frequently made under s. 101 [supra, p. 467], on the application of the liquidator for the payment of monies due in respect of calls made prior to the winding up, or other monies owing by the contributories. Not uncommonly the order includes calls made before and after the commencement of the winding up. See Form 693. As to set-off, see Whitehouse & Co., 9 C. D. 595; Gill's case, 12 C. D. 755; Colorado Mines, 75 L. T. 145.

Upon the applicon of B. the liq of the above-named co, and no Form 692. one appearing for the several persons mentd in the 2nd column of Order to pay the schedule hto although duly summoned as appears by the afft of calls made before winding P. filed 16 Jan., 1877, and upon reading, &c., Let the several persons up. named in the 1st column of the sd schedule being respively contribs of the sd co, within four days after service of this order on them respively, pay to the sd B., the liq of the sd co, at the office of Messrs. W. & Co., situate, &c., the sums of money set opposite their respive names in the 8th column of the sd schedule, such sums being the amounts due from the sd several persons respively in respect of the calls of 68. per share made on 10 July, 1873, and of 4s. per share made on 31 October, 1876, as mentd in the 5th and 6th columns of the sd schedule, together with interest thereon at the rate of 5 p. c. p. a. in respect of the 1st call from 10 July, 1873, and in respect of the 2nd call from 31 Oct., 1876, respively to the day of paymt, and for the costs of this applicon and consequent thereon (which have been ascertained in chambers) as mentd in the 7th column of the sd schedule.

British Marine Insurance Co., Malins, V.-C., 17 Jan. 1877.

A. 10

Form 699.

The company's property does not vest in the liquidator, and accordingly, assurances should be made in the company's name. See section 133 (7) and section 95 of the Act. Some persons make the company grant or assign, and the liquidator "confirm,” but there is no need to do this. The liquidator usually covenants against incumbrances.

It is not usual for a company which is being wound up to give covenants for title, and conditions of sale generally stipulate that no covenant shall be required except the liquidator's covenant against incumbrances.

Compromises.

Section 160 of the Act empowers the liquidator, with the sanction of an extraordinary resolution, [supra, Form 630] to make compromises. And he can call the requisite meeting under section 139 of the Act. But in many cases it is considered preferable to apply for the sanction of the court, under sections 138, 160, especially where it is desired to compromise with a contributory. Where a compromise is proposed, the liquidator sometimes (1) makes a provisional agreement for compromise, and then calls a meeting or applies to the court to sanction the same; or (2) calls a meeting or applies to the court to sanction a compromise upon terms specified or referred to in the notice or summons, and after obtaining the requisite sanction enters into the agreement. If the court is asked to sanction a compromise, evidence that the compromise is beneficial must be forthcoming. Supra, Form 630, et seq.

In the case of a compromise with a contributory, the liquidator, after taking out the summons for liberty to compromise, generally requires the contributory to make an affidavit as to his means (supra, Form 628), and if necessary crossexamines him on it. Form 631.

Form 700. Resolutions.

Form 701.

Remuneration of Liquidator.

That the remuneration of the sd liq for his services in the winding-up be fixed at the sum of [100].

Or at the sum of -7. per annum, or at the sum of [two] guineas per day of eight hours for his own time and one guinea per day of eight hours for his clerk's time, or at a sum equal to two p. c. of the amount of the assets divided among the unsecured creditors and members of the co.

That the remuneration of the sd liqs be pd at two guineas each for every day occupied by them in the winding up, together with all costs, charges, and expenses incurred by them in and about such winding up.

That the liq shall be remunerated for the service of himself and his clerks in accordance with the scale usually adopted by the High Ct of Justice in fixing the remuneration of off. liqs.

By sub-s. (3) of s. 133 of the Act of 1862, the company, in general meeting, is empowered to fix the remuneration of the liquidators. See also s. 144, infra, note to Form 703, as to the priority given thereto.

Sometimes, as already mentioned [supra, Form 669], the remuneration is fixed at the meeting at which the liquidators are appointed, and the above are examples of resolutions so passed. But in many cases the remuneration is not fixed until some subsequent period, e.g., at one of the annual meetings or at the final meeting.

There are advantages in fixing the remuneration upon the appointment of Form 701. the liquidators, because the rights of the liquidators are thereby clearly determined, but it must be borne in mind that if a high rate is fixed in the case of an insolvent company, creditors will have cause to complain.

By the joint effect of ss. 138 and 93 of the Act, the Court, if applied to, can fix the remuneration of the liquidator, and applications for this purpose are not uncommonly made. All questions as to the propriety of the amount are thereby avoided, and in the case of an insolvent company this course seems peculiarly desirable.

The following is an example of an order:

Upon the peton of H. of, &c., and J. of, &c., preferred unto this Ct Form 702. and upon hearing counsel for the petrs and for the respondents and Order as to upon reading the sd peton, By consent order that, without prejudice to remuneration of liquidator. any question, it be referred to chambers to fix the amount of remuneration proper to be allowed and pd to S., C., and H. the present liqs of the sd co, And order that it be referred to the taxing master to tax the bill of costs of Messrs. L. & L. the solors of the respondents, delivered to the sd liqs of and relating to the winding up of the sd co, And order that the rest of the sd peton do stand over. London Paper, &c, Co., Malins, V.-C., 1 Feb., 1878. B. 311.

Formal parts: see infra, Form 708.

On the pt of the liq of the above-named co that it may be Form 703. referred to the proper taxing-master to tax as between solor and client Summons to the costs, charges, and expenses of the applicant as voluntary liq of the tax costs. above-named co since his appointmt on the

of

of

up to the

S. 144 of the Act of 1862 provides that "All the costs, charges, and expenses properly incurred in the voluntary winding up of a company, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims."

But this section does not give priority over mortgagees and others having specific security on the assets at the commencement of the winding up, except so far as the liquidator's costs are costs of preservation or realisation, of which the mortgagees have had the benefit. Regent's Canal Ironworks Co., ex parte Grissell, 3 C. D. 411.

As the costs of winding up form a first charge, the liquidator can from time to time make payments on account. In most cases the liquidator pays the solicitor's bill without taxation, but he should remember that he may at any time be called on to bring in his account, and if he has overpaid the solicitor, may be held responsible for the difference. Accordingly, in some cases, the solicitor gives the liquidator an undertaking that if he should at any time be disallowed any part of the bill, the amount shall be refunded. Occasionally the parties think it more prudent to get the bill taxed before payment. In order to obtain taxation, a summons should be taken out under s. 138 of the Act as above. The liquidator is not personally responsible to his solicitor for the costs of the winding up. Trueman's Estate, 14 Eq. 278; In re Massey, 9 Eq. 367, supra, p. 516.

Upon the applicon of M. the off. liq., &c., and upon hearing the solors Form 704. for the ptrs and for the sd off. liq. and for H. the late voluntary liq of Order to bring

in account of liquidator.

Form 704. the sd co and the sd H. hby submitting to the jurisdiction, and upon reading an order dated 25 July, 1876; It is by consent of the sd H. ordered that the sd H. do forthwith or within 7 days after service upon him of this order, lodge in the chambers of the judge his account of receipts and disbursemts on behalf of the sd co as such voluntary liq. Manor Silkstone Coal Co., Malins, V.-C., 19 March, 1877. B. 623. See also Form 719, post.

Form 705.

Order removing liquidator.

Form 706.

Another.

Meetings.

The above order was made in a case where a voluntary winding-up was superseded by a compulsory order, but the Court can at any time, upon an application under s. 138 of the Act, order the liquidator to bring in and vouch his account. The proceedings upon the order are like those in a compulsory winding-up, supra, p. 539. However, such orders are only made in special circumstances, e.g., upon the liquidator's application, or where improper conduct is shown.

Under s. 139 of the Act, the liquidator is to convene a meeting of contributories every year, and submit an account thereto. This applies even when a supervision order has been made. Wright's case, 5 Ch. 437. Re Northern Counties Bank, Chitty, J., at chambers, 18 Dec., 1883. See also s. 142 as to the final account.

Upon the peton of K. of

preferred, &c., and upon reading, &c., and it appearing from the afft of the sd K. that J. the liq of the sd co is out of the jurisdiction and this Ct dispensing with service of the sd peton upon the sd co, Let the sd J. the liq of the sd co be removed from his office of liq of the sd co, And appoint the petr K. to be liq of the sd co in the place of the sd J., And Let the sd J. deliver up to the sd K. all the ppty, cash, books of account, and papers in his possession belonging to the sd co. Main Printing, &c., Co., Hall, V.-C., 13 Dec., 1878. B. 2171.

Upon motion, &c., Let C. and B. be respively removed from being liqs of the sd co, And Let some proper person or persons be appointed to act in their stead as liqs in the winding up of the sd co, And order that the sd C. and B. do render their final account as such liqs and do deliver over to such new liq or liqs all ppty, books, and documts of the sd co in their custody, possession, or power, And let the costs of the applicants of this motion be taxed and pd out of the assets of the sd co, And Let the sd C. and B. bear their own costs of the sd motion. Devonshire Silkstone Coal Co., Malins, V.-C., 13 Mar., 1878. A. 575. This order was reversed on appeal, W. N. 1878, 173.

and

As to removal of liquidators, see s. 141 of the Act of 1862; Buckley, 264; Sir John Moore Co., 12 C. D. 326; Oxford Bldg. Soc., 49 L. T. 495; and Form 454.

Meetings.

S. 139 of the Act empowers the liquidators to summon general meetings for the purpose of obtaining the sanction of the company by special or extraordinary resolution, or for any other purposes they think fit, and also requires annual meetings to be held. The meetings should be convened by notice, in accordance with the regulations of the company.