320

COMPANIES ACT, 1862.

ental Commercial Bank, 14 L. T. (N. S.) 753, 15 i. 8, as to wishes of majority of creditors; Madras Coffee Co., 17 W. R. 643; Union Hill Silver Co. 22 L. T. (N. S.) 400 (petition by single dissentient shareholder).

Where the Court has not power to make a winding up order, it has not power to direct a meeting to be held. Joint-Stock Coal Co., 8 Eq. 146.

See Part II. of this App. rules 45-47; forms, ib., sch. 3, nos. 45-48.

Appoint.

ment of official liquida or.

Official Liquidators.

XCII. For the purpose of conducting the proceedings in winding up a company, and assisting the Court therein, there may be appointed a person or persons to be called an official liquidator or official liquidators; and the Court having jurisdiction may appoint such person or persons, either provisionally or otherwise, as it thinks fit, to the office of official liquidator or official liquidators; in all cases, if more persons than one are appointed to the office of official liquidator, the Court shall declare whether any act hereby required or authorized to be done by the official liquidator is to be done by all or any one or more of such persons. The Court may also determine whether any and what security is to be given by any official liquidator on his appointment; if no official liquidator is appointed, or during any vacancy in such appointment, all the property of the company shall be deemed to be in the custody of the Court.

See p. 183.

The official liquidator will not be interfered with by the appointment of a receiver. Bank of Hindustan v. Coleman, W. N. 1866, 306.

The Court of Appeal will not interfere with the discretion of the primary judge in the appointment of an official liquidator. International Contract Co., 1 Ch. 523; London and Mediterranean Bank, ib. 525; Albert Average Assurance Association, 5 Ch. 597; compare Perry v. Oriental Hotels Co., ib. 420. See the observations in N. Assam Tea Co., ib. 644, on the rule said to be laid down by Lord Romilly and V.-C. Malins as to preference of nominee of petitioner.

Where one company had absorbed another, liquidator of the first held to be the most proper person to be appointed a liquidator of the second. Western Life Assurance Society, 5 Ch. 396; compare British Nation Assurance Society, W. N., 1872, 103.

Provision is made in the Stannaries Act, 1869 (32 & 33 Vict., c. 191, s. 33,) for the registrar acting in certain cases as official liquidator.

See Part II. of this App. rules as to official liquidator, 8-19. Forms as to liquidators, ib., sch. 3, nos. 6, 7, 8, 9,

tions, remo

up vacan

compensa.

XCIII. Any official liquidator may resign or be Resignaremoved by the Court on due cause shown: and vals, filling any vacancy in the office of an official liquidator ap- cies, and pointed by the Court shall be filled by the Court: there shall be paid to the official liquidator such salary or remuneration, by way of percentage or otherwise, as the Court may direct; and if more liquidators than one are appointed, such remuneration shall be distributed amongst them in such proportions as the Court. directs.

As to remuneration, Cannan's claim, 7 Eq. 104. Of joint liquidators, Langham Hote! Co., 17 W. R. 463.

Style and duties of official Iquidator.

Powers of official liquidator.

COMPANIES ACT, 1862.

See Part II. of this App., rule 18, and regulation as to remuneration printed, 3 Ch. lxiv.

XCIV. The official liquidator or liquidators shall be described by the style of the official liquidator or official liquidators of the particular company in respect of which he is or they are appointed, and not by his or their individual name or names; he or they shall take into his or their custody or under his or their control, all the property effects and things in action to which the company is or appears to be entitled, and shall perform such duties in reference to the winding up of the company as may be imposed by the Court.

Position and duties of official liquidator, Gooch's case, 7 Ch. 207.

XCV. The official liquidator shall have power, with the sanction of the Court, to do the following things:

Power of official liquidator to approve of number of shares, Bermingham v. Sheridan, 33 Beav. 660.

To bring or defend any action suit or prosecution or other legal proceeding civil or criminal in the name and on behalf of the company :

Turquand v. Kirby, 4 Eq. 123.

To carry on the business of the company, so far as may be necessary for the beneficial winding up of the same:

To sell the real and personal and heritable and movable property effects and things in action of the company by public auction or private contract, with power to transfer the whole

thereof to any person or company, or to sell the same in parcels :

The liquidator is the proper person to be appointed receiver on bill filed by mortgagee of property of the company, Perry v. Oriental Hotels Co., 5 Ch. 421. As to priorities in application of proceeds of sale of mortgaged property, Marine Mansions Co., 4 Eq. 601; Oriental Hotels Co., 12 Eq. 126.

Part II. of this App., rule 32.

To do all acts, and to execute, in the name and on behalf of the company, all deeds receipts and other documents, and for that purpose to use, when necessary, the company's seal: To prove rank claim and draw a dividend in the matter of the bankruptcy or insolvency or sequestration of any contributory, for any balance against the estate of such contributory, and to take and receive dividends in respect of such balance, in the matter of bankruptcy or insolvency, or sequestration, as a separate debt due from such bankrupt or insolvent, and rateably with the other separate creditors:

Application of this enactment in winding up of unregistered company, Ex parte Ball, 23 W. R. 119.

To draw accept make and endorse any bill of exchange or promissory note in the name and on behalf of the company, also to raise upon the security of the assets of the company from time to time any requisite sum or sums of money and the drawing accepting making or

Pr.

324

COMPANIES ACT, 1862.

endorsing of every such bill of exchange or promissory note as aforesaid on behalf of the company, shall have the same effect with respect to the liability of such company as if such bill or note had been drawn accepted made or endorsed by or on behalf of such company in the course of carrying on the business thereof:

Smith, Fleming & Co.'s case, Gledstanes & Co.'s case, 1 Ch. 538.

To take out, if necessary, in his official name, letters of administration to any deceased contributory, and to do in his official name any other act that may be necessary for obtaining payment of any moneys due from a contributory or from his estate, and which act cannot be conveniently done in the name of the company; and in all cases where he takes out letters of administration, or otherwise uses his official name for obtaining payment of any moneys due from a contributory, such moneys shall for the purpose of enabling him to take out such letters or recover such moneys, be deemed to be due to the official liquidator himself:

To do and execute all such other things as may be necessary for winding up the affairs of the company and distributing its assets.

Liquidators are in the position of trustees for the shareholders, and have no power to bind by admissions their cestuis que trustent. Empire Corporation, 17 W. R. 131.