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ORDERS AND RULES IN CHANCERY.
GENERAL ORDER AND RULES OF THE HIGH COURT OF CHANCERY TO REGULATE THE MODE OF PROCEEDING UNDER THE COMPANIES ACT, 1862.
11TH NOVEMBER, 1862.
Petition to Wind up Company.
1. EVERY petition for the winding up of any company by the court, or subject to the supervision of the court, shall be intituled in the matter of "The Companies Act, 1862," and of the company to which such petition shall relate, describing the company by its most usual style or firm.
For form of petition see below.
Rule 1 of the Order of 1868 requires petitions, &c., to be intituled in the matter of the Companies Acts, 1862 and 1867; see note to that rule.
2. Every such petition shall be advertised seven clear days before the hearing, as follows:
(1.) In the case of a company whose registered office, or if there shall be no such office, then whose principal, or last known principal place of business is or was situate within ten miles from Lincoln's Inn Hall, once in the London Gazette, and once at least in two Londor daily morning newspapers.
(2.) In the case of any other company, once in the London Gazette,
and once at least in two local newspapers circulating in the district
where such registered office, or principal or last known place of business, as the case may be, of such company is or was situate. The advertisement shall state the day on which the petition was presented, and the name and address of the petitioner, and of his solicitor and London agent (if any).
The seven days may be counted in the vacation; London India Rubber Co., 14 W. R. 594.
Hearing of petition which had not been advertised in time adjourned to enable the defect to be remedied; Lond. and Westminster Wine Co., 1 H. & M. 561; 12 W. R. 44. Advertisement in a second newspaper enforced; London India Rubber Co., 14 W. R. 594.
On motion to discharge (on ground of irregularity in the voluntary winding-up) a supervision order made on creditor's petition for a compulsory winding-up the order was discharged, and the petition reheard without fresh advertisement, on service and consent of all parties entitled to be served; Patent Floor Cloth Co., 8 Eq. C64.
The advertisement is notice to all the world; Emmerson's Case, 2 Eq. 221; see note to s. 153.
See rule 53. Form of advertisement, form 1 in sched. III., to these rules. 3. Every such petition shall, unless presented by the company, be served at the registered office, if any, of the company, and if no registered office, then at the principal or last known principal place of business of the company, if any such can be found, upon any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by being left at such registered office or principal place of business, or by being served on such member or members of the company as the court may direct; and every petition for the winding up of company, subject to the supervision of the court, shall also be served upon the liquidator (if any) appointed for the purpose of winding up the affairs of the company.
Service directed on the chairman and general manager; National Credit and Exchange Co., 11 W. R. 161. On any five directors, Unity Assur. Assoen. 11 W. R. 355; on solicitor and any one director; Lond. and Westminster Wine Co., 12 W. R. 6. On subscribers of memorandum of association and three or four of the prin cipal shareholders; Inventors' Assocn., 13 W. R. 1015. Service on secretary and two directors held sufficient; Fortune Copper Mining Co., 10 Eq. 390; and see Manchester, &c., Assocn., 9 Eq. 643; S. Essex Estuary, &c., Co., 18 L. T. (N. S.) 178. 4. Every petition for the winding up of any company by the court, or subject to the supervision of the court, shall be verified by an affidavit re
ferring thereto, in the form or to the effect set forth in Form No. 2 in the third schedule thereto; such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof; and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition.
Form 2 in sched. III.
In Western Benefit Society, 33 Beav. 368, the affidavit was filed before instead of after the presentation of the petition. On a statement of the facts the court allowed the affidavit to be resworn and filed, and the order, which had been made on the petition, to be dated subsequently.
Extension of time to file: Patent Boot and Shoe Co., 32 Beav. 142; and see Kentish Hotel Co., 13 W. R. 448; Anglo-Danish Navigation Co., 15 W. R. 105; Fortune Copper Mining Co., 10 Eq. 390.
5. Every contributory or creditor of the company shall be entitled to be furnished, by the solicitor of the petitioner, with a copy of the petition, within twenty-four hours after requiring the same, on paying the rate of fourpence per folio of seventy-two words for such copy.
To publish in a newspaper a petition containing personal charges of fraud before the hearing is a contempt of court; Cheltenham, &c., Ry. Carriage Co., 8 Eq. 580.
Order to wind up Company.
6. Every order for the winding up of a company by the court, or subject to its supervision, shall, within twelve days after the date thereof, be advertised by the petitioner once in the London Gazette, and shall be served upon such persons (if any) and in such manner as the court may direct.
Form 3 in sched. III.
Order allowed to be post-dated; Doncaster Perm. Building Society, 11 W. R. 459.
7. A copy of every order for winding up a company, certified to be a true copy thereof as passed and entered, shall be left by the petitioner at the chambers of the judge, within ten days after the same shall have been passed and entered, and in default thereof any other person interested in the winding up may leave the same, and the judge may, if he thinks fit, give
ORDERS AND RULES IN CHANCERY.
the carriage and prosecution of the order to such person. Upon such copy being left a summons shall be taken out to proceed with the winding up of the company, and be served upon all parties who may have appeared upon the hearing of the petition. Upon the return of such summons, a time shall, if the judge thinks fit, be fixed for the appointment of an official liquidator, and for the proof of debts, and for the list of contributories to be brought in, and directions may be given as to the advertisements to be issued for all or for any of such purposes, and generally as to the proceedings and the parties to attend thereon. The proceedings under the order shall be continued by adjournment, and, when necessary, by further summons, and any such direction as aforesaid may be given, added to, or varied, at any subsequent time, as may be found necessary.
8. The judge may appoint a person to the office of official liquidator, without previous advertisement, or notice to any party, or fix a time and place for the appointment of an official liquidator, and may appoint or reject any person nominated at such time and place, and appoint any person not so nominated.
Commercial Discount Co., 32 Beav. 198.
9. When a time and place are fixed for the appointment of an official liquidator, such time and place shall be advertised in such manner as the judge shall direct, so that the first or only advertisement shall be published within fourteen days and not less than seven days before the day so fixed.
Forms 6, 7 in sched. III.
10. Every official liquidator shall give security by entering into a re cognizance with two or more sufficient sureties, in such sum as the judge may approve; and the judge may, if he shall think fit, accept the security of any guarantee society established by charter or Act of Parliament in England, in lieu of the security of such sureties as aforesaid, or of any
Forms 8-11 in sched. III.
11. The official liquidator shall be appointed by order; and unless he
shall have given security, a time shall be fixed by such order within which he is to do so; and the order shall fix the times or periods at which the official liquidator is to leave his accounts of his receipts and payments at the judge's chambers, and shall direct that all moneys to be received shall be paid into the Bank of England, immediately after the receipt thereof, to the account of the official liquidator of the company, and an account shall be opened there accordingly; and an office copy of the order shall be lodged at the Bank of England.
Form 14 in sched. III.
12. When an official liquidator has given security pursuant to the directions in the order appointing him, the same shall be certified by the chief clerk, as in the case of a receiver appointed in a cause subject to giving security.
13. The official liquidator shall, on each occasion of passing his account, and also whensoever the judge may so require, satisfy the judge that his sureties are living, and resident in Great Britain, and have not been adjudged bankrupt or become insolvent, and in default thereof he may be required to enter into fresh security within such time as shall be directed.
14. Every appointment of an official liquidator shall be advertised, in such manner as the judge shall direct, immediately after he has been appointed, and has given security.
Form 15 in sched. III.
15. Where it is desirable to appoint provisionally an official liquidator, an application for that purpose may, at any time after the presentation of the petition for winding up the company, be made by summons, without advertisement or notice to any person, unless the judge shall otherwise direct, and such provisional official liquidator may, if the judge shall think fit, be appointed without security.
16. In case of the death, removal, or resignation of an official liquidator another shall be appointed in his room, in the same manner as directed in the case of a first appointment, and the proceedings for that purpose may be taken by such party interested as may be authorized by the judge to take the same.
17. The official liquidator shall, with all convenient speed after he is appointed, proceed to make up, continue, complete, and rectify the books of