1

devisees and legatees under such will shall abate in propor- CHAP. 140. tion their respective devises and bequests.

(3.) The share of such posthumous child shall be set out and assigned by the court of probate or other court having jurisdiction so as to affect as little as possible the disposition made by the testator of his property. R. S., c. 90, s. 9.

dower not

16. Nothing in this Chapter contained shall affect the Curtesy and title of a husband as tenant by the curtesy, nor that of a affected. widow as tenant in dower. R. S., c. 90, s. 16.

17. Lands held as dower by the widow shall after her power lands, decease be divided as in this Chapter provided in case of how divided the other lands of the intestate. R. S., c. 90, s. 16.

on death of dowress.

18. All such property, real or personal, as is not devised Undevised by will, shall be distributed as if the testator had died property. intestate. R. S., c. 90, s. 18.

primarily

19.—(1.) When any person dies seised of or entitled to Mortgaged any estate or interest in any real property which at the time property of his death is charged with the payment of any sum or liable. sums of money by way of mortgage, and such person has not, by his will or deed or other document, signified any contrary or other intention, the heir or devisee to whom such real property descends or is devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal property, or any other real property of such person; but the real property so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same is charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof.

(2.) Nothing in this section contained shall affect or diminish any right of the mortgagee on such real property to obtain full payment or satisfaction of his mortgage debt, either out of the personal property of the person so dying as aforesaid, or otherwise; and nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed or document made before the first day of January, A. D., 1882.

(3.) In the construction of any will or deed, or other document to which this section relates, a general direction that the debts or that all the debts of the testator shall be paid out of his personal property shall not be deemed to be a declaration of an intention contrary to or other than the rule in this section contained, unless such contrary or other intention is further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real property R. S., c. 89, ss. 30, 31, 32.

CHAP. 129.

Inspection of books.

Summons 'to appear.

Production of books, &c,

Refusal to appear.

Examination upon oath.

Subpoena.

Lien on papers.

ings whatsoever, with the exception of proceedings taken against the real property of any deceased contributory, in which case such order shall only be prima facie evidence for the purpose of charging such real property, unless his heirs or devisees were on the list of contributories at the time the order was made. R. S., c. 80, s. 56.

49. The court may make such order for the inspection by the creditors and contributories of the company of its books and papers as the court thinks just, and any books and papers in the possession of the company may be inspected in conformity with the order of the court, but not further or otherwise. R. S., c. 80, s. 57.

50. The court may at any time after the commencement of the winding up of the company, summon to appear before the court or liquidator any officer of the company, or any other person known or suspected to have in his possession any of the property or effects of the company, or supposed to be indebted to the company, or any person whom the court deems capable of giving information concerning the trade, dealings, property or effects of the company, and in case of refusal by such officer or other person to appear, or answer the questions submitted, he may be committed and punished by the judge as for a contempt. R. S., c. 80, s. 58. 51. 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. R. S., c. 80, s. 59.

52. If any person so summoned, after being tendered the fees to which a witness is entitled in the Supreme Court, refuses to come before the court or liquidator at the time appointed, having no lawful impediment, the court may cause such person to be apprehended and brought before the court or liquidator for examination. R. S., c. 80, s. 60.

53. The court or liquidator may examine upon oath any person appearing or brought before them in the manner aforesaid, concerning the affairs, dealings, property or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same. R. S., c. 80, s. 61.

54. In any proceedings under this Chapter, the court may order a writ of subpoena ad testificandum or of subpoena duces tecum to issue, commanding the attendance as a witness of any person within the limits of Nova Scotia. R. S., c. 80, s. 62.

55. When any person claims añу lien on pipers, deeds or writings, or documents produced by him, such production

shall be without prejudice to the lien, and the court shall CHAP. 129. have jurisdiction in the winding up to determine all questions relating to such lien. R. S, c. 80, s. 63.

breach of trust.

56. Where, in the course of winding up any company Malfeasance or under this Chapter, it appears that any past or present director, manager, liquidator, or any officer of such company, has misapplied or retained in his own hands, or become liable or accountable for, any moneys of the company, or been guilty of any malfeasance or breach of trust in relation to the company, the court may, on the application of any liquidator, or of any 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 or his executors or administrators to repay any moneys so misapplied or retained, or for which he or his estate 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 to such misapplication, retainer, malfeasance, or breach of trust, as the court thinks just. R. S., c. 80, s. 64.

vided for.

57. Any person who is dissatisfied with any order or Appeals prodecision of a judge in any proceeding under this Chapter, may appeal therefrom in the manner prescribed by the practice and rules of the Supreme Court in relation to appeals from the decision of a single judge. R. S., c. 80, s. 68.

58. Any powers by this Chapter conferred on the Powers of court. court, shall be deemed to be in addition to and not in restriction of, any other powers subsisting, either at law or in equity, of instituting proceedings against any contributory, or against any debtor of the company for the recovery of any call or other sums due from such contributory or debtor or his estate, and such proceedings may be instituted accordingly. R. S., c. 80, s. 69.

PROCEEDINGS BY CONTRIBUTORIES.

59. If at any time any contributory who desires to order authoriz cause any proceeding to be taken, which in his opinion ing proceedings. would be for the benefit of the company, and the liquidator, under the authority of the contributories or of the inspectors, refuses or neglects to take such proceeding after being duly required so to do, such contributory may obtain an order of the court authorizing him to take such proceeding in the name of the liquidator or company, but at his own expense and risk, upon such terms and conditions as to indemnity to the liquidator as the court prescribes; and thereupon any benefit derived from such proceedings shall

WINDING UP COMPANIES.

[VOL. 2.

CHAP. 129, belong exclusively to the contributory instituting the same for his benefit and that of any other contributory who joins him in causing the institution of such proceeding; but if before such order is granted the liquidator signifies to the court his readiness to institute such proceeding for the benefit of the company, an order shall be made prescribing the time within which he shall do so, and in that case the advantage derived from such proceeding shall appertain to the company. R. S., c. 80, s. 65.

Dissatisfied contributories.

Costs.

Mode of applicacation to court.

Dismissal of petition.

60-(1.) Any one or more contributories, whose claims. in the aggregate exceed five hundred dollars, who are dissatisfied with the resolutions adopted or orders made by the contributories or the inspectors, or with any action of the liquidator, for the disposal of the property of the company, or any part thereof, or for postponing the disposal of the same, or with reference to any matter connected with the management or winding up of the estate, may within four clear days after the meeting of the contributories, in case the subject of dissatisfaction is a resolution or order of the contributories, or within four clear days after becoming aware of or having notice of the resolution of the inspectors, or action of the liquidator, where such resolution or action is the subject of dissatisfaction, give to the liquidator notice that he or they will apply to the court on the day and at the hour fixed by such notice, and not being later than four clear days after such notice has been given, or as soon thereafter as the parties may be heard before such court, to rescind such resolution or orders.

(2.) The court, after hearing the inspectors, the liquidators and contributories present at the time and place so fixed, may approve, rescind or modify such resolutions or orders.

(3.) In case of the application being refused, the party applying shall pay all costs occasioned thereby, and in other cases the costs shall be in the discretion of the court. R. S., c. 80, s. 67.

MATTERS OF PRACTICE.

61-(1.) The costs of proceedings under this Chapter shall be taxed and allowed according to the law relating to costs and fees.

(2.) Any application to the court for the winding up of a company under this Chapter shall be by petition, and the petition may be presented by the company, or by any contributory or contributories of the company.

(3.) Upon hearing the petition the court may dismiss the same with or without costs, or may adjourn the hearing conditionally or unconditionally, and may make an interim order or any other order that it deems just.

(4.) In every petition, application, motion, or other plead- CHAP. 129. ing or proceeding under this Chapter the parties may state Pleadings. the facts upon which they rely in plain and concise language, and to the interpretation thereof the rules of construction applicable to such language in the ordinary transactions of

life shall apply.

(5.) All books, accounts, and documents of the company Books prima and of the liquidator shall, as between the contributories of facie evidence. the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.

(6.) Except when otherwise provided for, a clear judicial Notices. day's notice of any petition, motion, order, or rule, shall be sufficient, and service of such notice shall be manner as a similar service in a civil action.

70, 71, 72, 75, 76, 77.

made in such

R. S., c. 80, ss.

62. The rules of procedure for the time being as to Rules of amendments of pleadings and proceedings in the Supreme procedure. Court, shall as far as practicable apply to all pleadings and proceedings under this Chapter, and the court or liquidator before whom such proceedings are pending, shall have full power and authority to apply the appropriate rules as to amendments to such proceedings, and no pleading or proceeding shall be void by reason of any irregularity or default which can or may be amended or disregarded under the rules and practice of the court. R. S., c. 80, s. 74.

63. All orders made by the court may be enforced in the Enforcement of same manner and by the same officers as in the case of orders. orders of such court made in any action pending therein.

64. A majority of the judges of the Supreme Court Judges to make from time to time shall make, frame, settle and approve of rules, &c. the forms, rules and regulations to be followed and observed in proceedings under this Chapter, and shall have power to amend, change and vary the same, and such forms, rules and regulations, being first published in the Royal Gazette, shall have the same force and effect as if they had been made and included in this Chapter. R. S., c. 80, s. 83.

DISSOLUTION OF THE COMPANY,

65.-(1.) As soon as the affairs of the company are fully Dissolution of wound up, the liquidators shall make up an account, shewing company. the manner in which such winding up has been conducted, and the property of the company disposed of; and thereupon they shall call a general meeting of the members of the company, for the purpose of having the account laid before them, and hearing any explanation that is given by the liquidators; such meeting shall be called by advertisement, specifying the time, place and object therecf; and the advertisement shall be published one month at least previous