Let

Mr. Justice

In the matter of the Cos Act, 1862.

And in the matter of the B. Co, Limtd.

[e.g., C., of, the liq of the above-named co] attend at the chambers of Mr. Justice at the Royal Courts of Justice at the time specified in the margin [or, at the foot] upon the applicon of [D., who claims to be a contriby of the above-named co] that [state nature of applicon].

This summons was taken out by named D.

The following note is to be added to the original summons, and when the time is altered by indorsemt the indorsemt to be referred to as below: NOTE. If you do not attend either in person or by your solor at the time and place above-mentd [or at the time mentd in the indorsemt hereon], such order will be made and proceedings taken as the judge may think just and expedient. [See Order LV. r. 20.]

S. 138 of the Act is as follows:

Where a company is being wound up voluntarily, the liquidators or any contributory of the company may apply to the Court in England, Ireland, or Scotland, or to the Lord Ordinary on the Bills in Scotland in time of vacation; to determine any question arising in the matter of such winding up, or to exercise all or any of the powers which the Court might exercise if the company were being wound up by the Court, and the Court or Lord Ordinary in the case aforesaid, if satisfied that the determination of such question, or the required exercise of power, will be just and beneficial, may accede wholly or partially to such application, on such terms, and subject to such conditions as the Court thinks fit, or it may make such other order, interlocutor or decree on such application as the Court thinks just.

This section is frequently made use of in a voluntary winding-up. It will be observed that only the liquidator or a contributory can apply: a creditor cannot. See Poole Firebrick Co., 17 Eq. 268, Buckley, 193. Applications under this section are to be by petition or motion, or, if the judge shall so direct, by summons at chambers. Rule 51.

Applications are occasionally made by petition. See In re Anglesea Co., 2 Eq.

under s. 138.

Form 708. 379; Re Australian Co., W. N. 1877, 37; Form 706, supra, p. 510.

But they are generally made by motion or summons. In the following recent cases the application was by motion: In re Horbury, &c., Co., 11 C. D. 109; In re Gold Co., 12 C. D. 77; Re Union Bank of Kingston-upon-Hull, 13 C. D. 808.

In the following case the application was by summons: In re Whitehouse, 9 C. D. 595, and see Forms 527, 559, 619, 650.

The summons must be an originating summons, and must accordingly be filed in the writ department of the central office. See further Order LV. r. 20 et seq. As to obtaining order giving general liberty to apply in a voluntary windingup, see note to Form 709, infra.

The following are some of the matters in regard to which applications are from time to time made under s. 138.

Actions and proceedings: The liquidator can take and defend legal proceedings in the name of the company under ss. 133 (7) and 95 of the Act, but occasionally, e.g., where the matter involved is considerable, he applies for the sanction of the Court. Sometimes a contributory applies for liberty to take proceedings in the company's name.

Carrying on business: The liquidator can carry on the business of the company, so far as may be necessary for the beneficial winding up of the same without the sanction of the Court, ss. 133 (7) and 95 of the Act. But occasionally, in important cases, he applies for such sanction.

Borrowing: The liquidator can raise money upon the security of the assets, ss. 133 (7), 95, and the power is not uncommonly exercised, e.g., in order to pay off secured creditors, to provide funds to carry on the business, &c. Occasionally application is made to sanction the proceeding, as in a compulsory windingup. See supra, p. 451 et seq.

Delivery of books, papers, and property: Where a liquidator is unable to get
possession of the books, papers, or other property of the company, he not uncom-
monly applies under ss. 100, 138, for an order for delivery. See supra, Form
462 et seq.
In re Horbury Bridge Co., 11 C. D. 109.

Restraining actions and proceedings. See Form 585 et seq.
Settling the list of contributories. See Form 687.

Rectifying the list of contributories. See supra, p. 462, Form 511.

Making and enforcing calls. See Form 691.

Enforcing payment of debts due from contributories. See Form 692.

Liberty to declare and pay dividends to creditors and contributories. See Form 525.

Adjudication of disputed claims. See Form 696.

Compromises. See note preceding Form 617.

Service. Applications are sometimes made as to service out of the jurisdiction or substituted service. See Form 575 et seq.

Examination and discovery under s. 115. Such applications are not uncommon; they are usually made by the liquidator, especially with a view to proceedings under s. 165. In re Gold Co., 12 C. D. 77. See Form 629. Taxation of costs. See Form 703. Inspection under s. 156 of the Act.

Applications for liberty to inspect the books and papers under this section, are not uncommon, see Form 619, supra.

Proceedings against directors and others under s. 165, by no means uncommon, see In re Gold Co., 12 C. D. 77, and Forms 634 et seq.

In regard to s. 161, see infra, introduction to "Reconstruction."

Adjusting the rights of contributories. Occasionally application is made to the Court to determine the rights of contributories in the surplus assets. See In re Eclipse Gold Mining Co., 17 Eq. 491; and In re Anglesea Colliery Co., 2 Eq. 379, in which case the application was by petitions.

Unclaimed dividends. Sometimes before the final meeting is held, the liquidator pays any unclaimed dividends into Court, and obtains an order as in Form 671.

Staying the winding up: Upon an application to the Court under s. 138, the Form 708. power given by s. 89 of staying proceedings in the winding up may be exercised. See further, supra, p. 384. The application is usually by petition. South Barrule Slate Quarry Co., 8 Eq. 688; Bog Mining Co., L. J. Notes of Cases, 1875, 48, and see supra, "Petitions."

Upon the applicon of the above-named co by summons dated the Form 709. 7th of April, 1877, and upon hearing the solors for the applicants, and Order giving upon reading the London Gazette of the 10th of April, 1877, publishing general liberty to apply. notice of a general meeting of the members of the sd co held on the 16th of March, 1877, at which it was resolved that the sd co should be wound up voluntarily, and also appointing Messrs. L. & D. liqs of the sd co, and passing certain other special resolutions, and notices of an extraordinary general meeting of the members of the sd co held on the 6th of April, 1877, confirming such resolutions. IT IS ORDERED that the sd liqs or any contribs of the sd co may from time to time apply to this Ct to determine any question arising in the winding up of the sd co, and to exercise as respects the enforcing of calls or in respect of any other matter all or any of the powers which this Ct could or might exercise if the sd co was being wound up by the sd Ct: AND IT IS ORDERED that such proceedings be taken for the ppose of ascertaining and adjudicating upon the debts of and claims upon the sd co as the judge shall direct. Argentine Tramways Co., Hall, V.-C., 17 App., 1877. A. 687.

An order giving liberty to apply as above, is sometimes made on the application of the liquidator. The object is to facilitate applications to the Court by avoiding the necessity of taking out an originating summons, whenever application by summons has to be made. Where such an order has been made, application can be made by ordinary summons. Possibly there may be some doubt as to the jurisdiction to make the order. The following order goes still further, for it gives creditors liberty to apply.

Upon the applicon of the above-named co, &c., and upon hearing the Form 710. solors for the applicants, and upon reading the London Gazelle of the Another order 4th of Jan, 1876, containing, &c. It is ordered that the sd liqs or any giving general liberty to contribs or creditors of the sd co may apply to this Ct to determine any apply. question arising in the winding-up of the sd co, and to exercise as respects the enforcing of calls or in respect of any other matter all or any of the powers which the Ct could or might exercise if the sd co was being wound up by the sd Ct. And it is further ordered that an inquiry be forthwith made whether there is any debt of the sd co remaining unpaid. London and Asiatic, &c., Co., Malins, V.-C., 12 Dec., 1876. B. 1960.

Form 711. a general meeting of the members of the above-named co will be held at Notice convening final day the

Notice is hby given in psuance of section 142 of the Cos Act, 1862, that

on

of at

o'clock in the afternoon, for meeting.

Form 711. the ppose of having an account laid before them showing the manner in which the winding-up has been conducted, and the ppty of the co disposed of, and of hearing any explanation that may be given by the liq, and also of determining by extraordinary resolution the manner in which the books, accounts and documts of the co and of the liq thereof shall be disposed of.

Dated the

day of

A. D., Liquidator.

See section 142 of the Act as to the final meeting. The meeting must be convened by advertisement as above in the Gazette, one month at least before the meeting. And where the meeting is to dispose of the books, &c., notice to the same effect must also be given to the members of the company, by post or otherwise, as provided by the articles thereof, for under section 155 of the Act, the books, &c., are to be disposed of as the company, by an extraordinary resolution (see sections 129, 129) directs.

The notice for insertion in the Gazette must be signed by the liquidator. If the signature is attested by a solicitor whose name is in the law list, that may be sufficient, but sometimes the Gazette requires a duplicate to be verified by the statutory declaration of some person who will state that he was present on the day of, and saw [the liquidator] sign the notice hereto annexed, and that the signature set and subscribed to the said notice as the attesting witness to the said signature is of the proper handwriting of the declarant.

At the meeting the liquidator will present the account referred to in the notice, and will give any requisite explanations; and resolutions will be passed for the adoption thereof, and as to the books, e. g.—

1. That the account submitted to this meeting, and showing the manner in which the winding up has been conducted and the property of the company disposed of, be received and adopted.

2. That the books, accounts, and documents of the company, and of the liquidator thereof, be retained by the said liquidator, he undertaking to destroy the same upon the dissolution of the company, or, handed over the purchaser of the company's [leasehold property].

to

Form 712. Notice to

registrar of

To the Registrar of Joint-Stock Cos.

I beg to inform you that a meeting of the above-named co was duly held on the day of for the ppose of having an account laid final meeting. before them showing the manner in which the winding-up of the co has been conducted and the ppty of the co disposed of, and the same was done accordingly.

Dated, &c.

Liquidator.

Section 143 of the Act requires the liquidator to make a return to the Registrar of Joint Stock Companies as above, and provides that on the expiration of three months from the registration of the return, the company shall be deemed to be dissolved. Default in making the return subjects the liquidator to a penalty of 51.

Where a company is wound up voluntarily, it is of great importance to all parties that it should be duly dissolved in manner before mentioned, for until dissolution it continues to exist, and accordingly forgotten liabilities may be discovered and disputes revived, and the conduct of the liquidator impeached. Hundreds of dissolutions take place every year.

When the company has been dissolved as aforesaid, the court will not make a Form 713. winding-up order, even upon the petition of a creditor who has been excluded. Pinto Silver Mining Co., 8 C. D. 273; Westbourne Grove Drapery Co., W. N. 1878, 195. But in a case of fraud it might be possible to set aside the dissolution. London and Caledonian Co., 11 C. D. 140.

Until the expiration of the three months, application can be made to the court, and a winding-up order may be made. Crookhaven Mining Co., 3 Eq. 69.

Another case.

WINDING UP UNDER SUPERVISION.
Supervision Orders.

UPON the peton, &c. This Ct doth order that the voluntary winding Form 713. up of the sd co be continued, but subject to the supervision of this Ct, Supervision and any of the proceedings under the sd voluntary winding up may be order. adopted as the judge shall think fit: And the creditors, contribs, and liqs of the sd co, and all other persons interested, are to be at libty to apply to the judge at chambers as there may be occasion. And it is ordered that the costs of the petr and of the sd co and liqs of and relating to this peton, be taxed by the taxing master and pd out of the assets of the co.

Upon the peton of the Credit Foncier, Limtd, creditors of the above- Form 714. named co, &c., This Ct doth order that the voluntary winding up of the Another, above-named co be continued, but subject to the supervision of the Ct, appointing liquidator. and any of the proceedings in the voluntary winding up may be adopted as the judge shall think proper: And the respondent H. M. C., one of the present liqs of the sd co, by his counsel at bar, desiring to resign hist office of liq: This Ct doth order that J. E. H. of -, be appointed liq, in the stead of the sd H. M. C. and to act in conjunction with C. T. M. the continuing liq. And it is ordered that the petrs and the sd Hester & Co., Limtd., and the liqs thereof, and the respondents, the shareholders, be allowed their costs of and relating to this applicon, out of the assets of the co, such costs to be taxed by the taxing-master, who is to allow to the respondents, shareholders, such costs as they might properly have incurred and would have incurred by employing one solor. The petrs to be at libty to appear before the judge as creditors in all proceedings relating to the winding up at the expense of Hester & Co., Limtd. And it is ordered, that the retiring liq be at libty to make any applicon in respect of his remuneration (if any), as such liq, as he may be advised. Hester & Co., Limtd., Bacon, V.-C., 11 May, 1876. A. 815. As to giving notice of winding-up order, see supra, Form 423.

Effect of Supervision Order.

Section 151 of the Act provides as follows:

Where an order is made for a winding up subject to the supervision of the court, the liquidators appointed to conduct such winding up may, subject to any NN