Sect. 1.

up such societies is vested in the Courts which have jurisdiction Bk. IV. Chap. 1. to wind up companies under the Companies Acts, and the provisions of the Companies (Winding-up) Act, 1890, apply to them (o). It is apprehended that for the purpose of determining whether proceedings in the winding up of an incorporated building society should be taken in the High Court or a County Court, regard must be had to the amount standing to the credit of the shares on which no advance has been made, for this seems to correspond most nearly to the capital of a company paid up or credited as paid up (p). For further information as to industrial and provident societies and building societies, see App. II. and III.

B. In the case of companies registered in Ireland, or, if B. In Ireland. unregistered, having a principal place of business there

the Chancery Division of the High Court of Justice in

Ireland (q).

bankruptcy.

The Chancery Division of the High Court in Ireland, after Proceedings in making an order for winding up a company, may direct all subsequent proceedings for winding up the same to be had in the Court of Bankruptcy having jurisdiction in the place in which the registered office of the company is situate (Act of 1862, § 81), or, if the company is unregistered, in the place where it has a principal place of business (§ 199, cl. 1).

C. In the case of companies registered in Scotland, or, if c. In Scotland. unregistered, having a principal place of business there-the Court of Session in either division thereof (r). Either division of the Court has power to remit the winding up to any one of the permanent lords ordinary (s).

(0) Building Societies Act, 1894 (57 & 58 Vict. c. 47), § 8; Industrial and Provident Societies Act, 1893 (56 & 57 Vict. c. 39), §§ 58 & 59 ; and County Court Rules, Ord. XLIA, r. 12. As to the transfer to the High Court of pending proceedings, see ib. and Ferndale Industrial Co-op. Socy. [1894], 1 Q. B. 828. Previously there was no power of transfer to the High

L.C.-VOL. II.

Court; see Real Estates Co. [1893],
1 Ch. 398.

(p) Law of Building Societies, by
Mr. Wurtzburg, 3rd ed., p. 239.

(9) Companies Act, 1862, §§ 81 & 199, cl. 1. Supreme Court of Judicature Act (Ireland), 1877, § 36. (r) Companies Act, 1862, §§ 81 & 199, cl. 1.

(8) Companies Act, 1886, § 6.

53

Bk. IV. Chap. 1. SECTION II.-COMPANIES WHICH CAN BE WOUND UP BY THE COURT,
Sect. 2.
OR SUBJECT TO ITS SUPERVISION.

Companies capable of being wound

up under the Act of 1862.

Under the older Winding-up Acts, questions of considerable difficulty arose with respect to what companies were within their provisions. Thus the 7 & 8 Vict. c. 111, applied only to commercial and trading companies (t); and whether the Winding-up Act of 1848 applied to companies not falling within the same description was by no means free from doubt (u). The Winding-up Act of 1849 greatly extended the operation of the Act of 1848. But, notwithstanding the very general word association, used in these Acts, and although they extended to associations which were neither partnerships nor quasi-partnerships (e.g., to friendly societies, and to associations having for their object the formation of companies), still associations not having gain for their object, and in which there were no shares and no liability to contribute, were not within them (x).

Under the Companies Act, 1862 (y), the following companies may be wound up by the Court, or subject to its supervision:1. All companies registered under the Act, whether formed under it or not ($$ 79, 180, and 196).

2. All companies registered under the Acts of 1856–1858 (see §§ 176 and 177).

3. All other partnerships, associations or companies, except railway companies incorporated by Act of Parliament, consisting of more than seven members, and having a place of business in the United Kingdom (see § 199) (z).

What companies can be registered under the Act and what not, has been pointed out in a former page (a); and it is only necessary to observe that any company or association of

(t) See, as to these words, Ex parte Burge, 1 De G. & S. 588; Ex parte Spackman, ib. 599.

(u) See Ex parte Burge, 1 De G. & S. 588; Ex parte Spackman, ib. 599, and 1 Mac. & G. 170.

(x) See St. James's Club, 2 De G. M. & G. 383.

(y) The Act of 1890 has not made any alteration in this respect. See

North of England, &c., Ins. Ass. [1900], 1 Ch. 481.

(z) See as to this, infra, p. 837. An unregistered insurance company formed between the passing of the Joint Stock Companies Acts, 1856 and 1857, may be wound up under this section. Bank of London, &c. Ins. Assoc., 6 Ch. 421.

(a) Ante, pp. 154 et seq.

Sect. 2.

persons which is capable of being registered as an existing Bk. IV. Chap. 1. company may be registered for the purpose only of being wound up (b).

specially in

The circumstance that a company is incorporated by a Companies special Act of Parliament (c), or by a grant from the Crown (d), corporated. does not prevent such company from being wound up under the Companies Act, 1862; even although the property of such company cannot be sold without a special Act of Parliament (e); and even though part of its property may be a railway (f), and its incorporation be stated in the special Act to be for the public advantage (g).

panies.

Whether a railway company incorporated by special Act of Railway comParliament can be registered under the Companies Act, 1862, and then wound up under it, is doubtful (h); unregistered railway companies (i) are expressly excepted from the Act (see § 199), and can only be wound up under it where they are duly authorised to abandon their railways under the provisions of other Acts of Parliament (k).

Bk. IV. Chap. 1.
Sect. 2.

Cost-book mining com

panies.

Building
Societies, &c.

Trustees'

Savings Bank.

Scrip companies.

*Friendly Societies.

Companies formed on the cost-book principle for working mines within the jurisdiction of the Stannaries may be wound up under the Companies Act, 1862. The law as to winding up these companies was formerly in a very unsatisfactory state (l). Building societies, and industrial and provident societies, whether registered under the Acts relating to such societies, or not, may be wound up under the provisions of the Companies Acts (m).

Trustees' savings banks certified under the Trustee Savings Banks Act, 1863, may also be wound up under the Companies Acts (n).

Scrip companies have been ordered to be wound up under the older Acts (o); and it is apprehended that they can also be wound up under the Act of 1862; for although shares transferable to bearer, and not paid up in full, cannot be validly created under the Companies Act, 1862; yet it by no

(1) They were, if formed for working mines in Cornwall, wholly excepted from the Act of 1848, as it originally stood, see 11 & 12 Vict. c. 45, § 2; Ex parte Wyld, 1 Mac. & G. 1. Provision was, however, afterwards made for winding them up in Chancery in certain specified cases, 12 & 13 Vict. c. 108, § 1; 20 & 21 Vict. c. 78, § 12. See, on this subject, Bosworthon Mining Co., 26 L. J. Ch. 612; Wheal Anne Mining Co., 10 W. R. 330; and as to the right of creditors to oppose, see Tretoil and Messer Mining Co., 2 J. & H. 421. Cost-book companies formed for working mines in Devonshire might be wound up in Chancery even under the Act of 1848, see South Lady Bertha Mining Co., 2 J. & H. 376. Companies formed on the cost-book principle, but not for working mines within the jurisdiction of the Stannaries, were clearly within the Winding-up Acts of 1848 and 1849. See, now, 32 & 33 Vict. c. 19, and 50 & 51 Vict. c. 43, § 28, and ante, p. 830.

(m) See Queen's Benefit Building Soc., 6 Ch. 815; Professional, &c., Building Soc., ib. 856; Sunderland Building Soc., 21 Q. B. D. 349, and ante, p. 832, and infra, Appendixes Nos. 2 and 3. Secus if by reason of such non-registration they are illegal, see Ilfracombe, &c., Building Society [1901], 1 Ch. 102, ante, p. 185. Such societies were within the provisions of the Winding-up Acts, 1848-9. See St. George's Building Society, 4 Drew. 154; and as to loan societies, Ex parte Smith, 1 Sim. N. S. 165. See Crown and Cushion Loan Fund Soc., 14 Jur. 874. As to the dissolution of Friendly Societies under the Friendly Societies Act, 1896, see 59 & 60 Vict. c. 25, § 78 et seq. Such societies may be converted into registered companies, see § 71.

(n) See Trustee Savings Banks Act, 1887, 50 & 51 Vict. c. 47, § 3, and 26 & 27 Vict. c. 87.

(0) Barclay's case, 26 Beav. 177; Ex parte Grisewood, 4 De G. & J.

544.

means follows that a company with such shares cannot be Bk. IV. Chap. 1. wound up (p).

Sect. 2.

A company which has been dissolved, but the members of Dissolved comwhich are still under liabilities incurred before the dissolution panies. may be wound up; and orders have been frequently made for winding up companies which have amalgamated with, or have transferred their assets and liabilities to, other companies (9).

The 199th section of the Companies Act, 1862, is expressed in Companies not terms sufficiently large to include all unregistered () societies within the Act. and corporations of whatever kind, consisting of more than seven members at the date of the petition (s), with the single exception of railway companies incorporated by Act of Parliament. But the general scope of the Winding-up Acts, and the mention of a place of business for the purpose of determining the Court which has jurisdiction to wind up unregistered companies, show that the Act only applies to unregistered societies and corporations of the nature of trading companies (t). There are, therefore, many corporations aggregate to which the winding-up provisions of the Companies Act, 1862, have no application: e.g., municipal corporations, ecclesiastical corporations aggregate, and societies such as the Royal Society, incorporated by royal charter for the advancement of science (u). The property of

(p) See General Co. for Promotion of Land Credit, 5 Ch. 363, and Princess Reuss v. Boss, L. R. 5 H. L. 176, As to illegal companies, see infra, p. 839.

(2) For examples, see Family Endowment Society, 5 Ch. 118; and under the older Acts, Ex parte Phillips, 3 De G. & S. 3; Ex parte Dee, ib. 112; Warwick and Worcestershire Rail. Co., 13 Jur. 651. A dissolved company, which had been adjudicated bankrupt under 7 & 8 Vict. c. 111, might, nevertheless, be wound up under the Acts of 1848-9, see ante, p. 825, note (1). (r) I.e., unregistered at the date of the petition. Hercules Ins. Co., 11 Eq. 321.

(8) South London Fishmarket Co., 39 Ch. D. 324, where, in order to prevent the company from being wound up, the directors endeavoured to get rid of their shares and reduce the number of shareholders below seven. Bolton Benefit Loan Soc., 12 Ch. D. 679. The members must be present members, and neither the representatives of deceased, nor the trustees of bankrupt members are members for this purpose. Bowling and Welby's Contract [1895], 1 Ch. 663.

(t) Bristol Athenæum, 43 Ch. D. 326; Russell Institution [1898], 2 Ch. 72.

(u) See Free Fishermen of Faversham, 36 Ch. D. 329.