« EelmineJätka »
999: S. P., Winfield v. Peel or Barton, 2 D., N. S. 355; 12 L. J., Q. B. 102; 6 Jur. 258.
in preference to all other payments whatsoever The memorial enrolled under the act containing the names of John Batty, carrier, of Wolverhampton, and of William Ryton; and, on an application for a scire facias to have execution against William Batty and William Ryton, in an action for an expense incurred in obtaining the act, it was sworn, on the part of the plaintiffs, Separate executions may issue against different that the defendant William Batty was, by misshareholders till the debt is satisfied. Nixon v. take, called and inserted in the memorial as John Brownlow, 1 H. & N. 405; 26 L. J., Ex. 12. Batty. For the defendant, it was sworn that It is not necessary that the sheriff's returns to there was no such person as William Batty who abortive writs against the company should have was a shareholder, and also that the other defenbeen actually filed at the time of the motion. Il- dant Ryton was not a shareholder. Notice had fracombe Railway Company v. Devon and Somer-been given to the defendants that the court set Railway Company, 2 L. R., C. P. 15. would be moved that an execution might issue against them :-Held, first, that the affidavits of the defendants were no answer to the application for a scire facias, and that the rule ought to be made absolute. Clowes v. Brettell, 11 M. & W. 461; 2 D., N. S. 1020; 12 L. J., Ex. 302; 7 Jur. 219.
The court will, at the instance of a judgment creditor, grant a rule for execution to issue against a shareholder without a scire facias. Burke v. Dublin Trunk Connecting Railway Company, Miller, In re, 3 L. R., Q. B. 47 ; 37° L. J., Q. B. 50; 16 W. R. 107; 8 B. & S. 773.
Affidavits, Form of.]-The affidavits are properly intitled in the original action. Edwards v. Kilkenny and Great Southern and Western Railway Company, 3 C. B., N. S. 786, 787.
It is not necessary that the affidavits should in express terms state that the judgment remains unsatisfied; it is enough if that fact can be fairly inferred from that which is stated and not contradicted. Ib.
It is no answer to the application that the works have not been completed within the period limited by the special act, and that therefore the powers granted to the company "for making the railway, or otherwise in relation thereto," are at an end. lb.
Sufficiency.]—It is not enough to shew that a fi. fa. has been issued against the company, and returned nulla bona; the affidavit must go on to allege circumstances to satisfy the court that due diligence has been used by the plaintiff to discover property of the company out of which he might obtain satisfaction of the judgment. Hitchins v. Kilkenny and Great Southern and Western Railway Company, 15 C. B. 459.
Upon application for leave to issue execution under 7 & 8 Vict. c. 110, s. 68, against two partners as shareholders in a company, against which judgment had been obtained, affidavits stated that one partner, in the presence of the other, executed the deed of settlement of the company for himself and partner :-Held, sufficient primâ facie evidence of execution by the other. Palmer v. Justice Insurance Society, 6 El. & Bl. 1015; 26 L. J., Q. B. 73; 3 Jur., N. S. 44.
Where a company was established for making a railway in Ireland, although no proceedings had been taken to procure satisfaction in Ireland, and the affidavits did not expressly negative the existence of property there, the court granted a scire facias against a director who had stated at a meeting of the company in London, that in consequence of the shareholders not paying the calls, the directors had no funds to meet the claims against them, one of the claims being the judgment obtained by the plaintiff. Devereur v. Kilkenny and Great Southern and Western Railway Company, 1 L., M. & P. 788; 5 Ex. 834; 20 L. J., Ex. 37; 14 Jur. 1028.
By an act of parliament for creating a company, it was enacted, that the company should cause to be enrolled in Chancery a memorial of the names, residences and descriptions of the shareholders. Another clause provided, that the expenses of applying for and obtaining the act should be paid out of the funds of the company
Held, secondly, that the remedy of the plaintiffs was not against the funds of the company only, but that they had a right of action against the individual shareholders. Ib.
Held, thirdly, that the defendants, having received notice that an execution (not a scire facias) would be moved for, were entitled to their costs of appearance, unless they shewed cause on the merits. Ib.
Necessary Facts.]-The court will not grant a scire facias unless the affidavits disclose reasonable grounds for believing that the party sought to be charged is a shareholder. The fact of his having applied for and received an allotment of shares, and paid a deposit thereon is not enough. Edwards v. Kilkenny and Great Southern and Western Railway Company, 14 C. B., N. S. 526.
The court will not allow a scire facias to go against one as a shareholder in a company, unless reasonably satisfied that he actually is a shareholder. Mather v. National Assurance Association, Clark, In re, 14 C. B., N. S. 676.
An application was founded on affidavits stating that a fieri facias had been issued against the company, to which the sheriff returned nulla bona; that the party was a shareholder in the company, and had been served with notice of motion; and that the company had not at the date of the judgment, nor at any time since, any lands, chattels, goods, or effects, in England, Ireland, or elsewhere, whereon the amount of the judgment, or any part thereof, could be levied :-Held, sufficient. Nixon v. Kilkenny and Great Southern and Western Railway Company, 1 H. & N. 47; 25 L. J., Ex. 249; 2 Jur., N. S. 429; S. P., Wyatt v. Darent Valley Railway Company, 2 C. B., N. S. 110.
When Unanswered.]-An affidavit in support of an application for a scire facias, stated that deponent "having been foiled in his attempts to obtain a sight of the registry, and so to obtain authentic and official information on the subject, deponent instituted inquiries aliunde as to the persons who really were shareholders, and hath been credibly informed by parties officially connected with the company, and which information deponent verily believes to be true, that D., who has been a director of the company from the commencement, was a duly registered
shareholder of seventy shares, and that the sum of 1,0851. was due thereon in respect of subscriptions not called up, the shares being 201, shares, and only 47. 10s. per share having been paid up and called: "-Held, that the affidavit unanswered shewed that D. was a shareholder in the company. Rastrick v. Derbyshire, Staffordshire and Worcestershire Junction Railway Company, 9 Ex. 149; 7 Railw. Cas. 799; 23 L. J., Ex. 2; 17 Jur. 977.
Declarations.]—In a declaration in scire facias against a member of a company formed under letters-patent granted under 7 Will. 4 and 1 Vict. c. 73, it is not necessary to aver whether, or to what extent, his liability is limited in such letters-patent, according to the power given by s. 24, it being matter to be shewn by plea. Phillipson v. Egremont (Earl), 6 Q. B. 587; 14 L. J., Q. B. 25; 8 Jur. 1164.
Neither is it necessary to shew in the declaration that the defendant was a member at the time the cause of action accrued: it is enough (when the original action was on a contract) to state that he was a member at the time the promise was made. Ib.
Pleas.]-A plea, that the defendant, at the commencement of the original action, was not liable as an existing or a former member of the company, is bad, as not taking issue on any matter alleged in the declaration. Ib.
A plea, setting out matters shewing that the company in its formation did not comply with the directions contained in s. 5, is bad, as such matters might have been pleaded to the original action. Ib.
A plea, setting out the judgment in the original action, which was against the registered officer of the company, on a bill of exchange, drawn and indorsed by A., as agent of the company, and asserting that A. did not, as agent of the defendant, or by his authority, make or indorse the bill, is bad, for the same reason. Ib.
A plea, that the original action was brought against the registered officer for a demand, on which neither he, nor the defendant, nor the company, was by law liable, and that, such registered officer, and the plaintiff, well knowing the premises, the registered officer fraudulently and by connivance with the plaintiffs, suffered judgment by default, in order and with intent that the plaintiff might sue for and recover the amount against the defendant, is a good plea, as containing a sufficient allegation of fraud and collusion between the plaintiff and the nominal defendant in the original action, and that the defendant in the scire facias was entitled to avail himself of such defence by plea thereto. Ib.
A declaration stated that the plaintiffs recovered against B., as secretary to the Patent Rolling and Compressing Iron Company, a debt due and owing from the company to the plain- | tiffs, and averred that the defendants and others were, at the time of the recovery of the judg ment, and still are, shareholders. Plea, that B. was not secretary pursuant to the statute creating the company, as in the scire facias alleged-Held, that the plea was bad, as it traversed an allegation not contained in the
declaration. Bradley v. Eyre, 11 M. & W. 432 ; 1 D. & L. 260; 12 L. J., Ex. 450.
To a declaration against a shareholder of a company on a judgment recovered against the secretary of the company, he pleaded that no memorial of the names, residences and descriptions of the directors and secretary had ever been inrolled in chancery as required :-Held, that the plea was bad, as setting up a defence which might have been pleaded to the original action. Bradley v. Urquhart, 2 D., N. S. 1042; 11 M. & W. 456; 12 L. J., Ex. 459.
The shareholder cannot set up any defence that would have been an answer to the action
against the company. Peddyl v. Gwyn, 1 H. & N. 590; 26 L. J., Ex. 199; 3 Jur., N. S. 188.
f. Service of Proceedings.
Service of a rule for an execution against a shareholder must be personal, or by leaving it at his place of abode; delivering it to his attorney, though at his request, will not do. Edwards v. Kilkenny and Great Southern and Western Railway Company, 1 C. B., N. S. 409.
But the rule nisi for the scire facias may be served upon an attorney authorized to accept service for him. Ilfracombe Railway Company v. Devon and Somerset Railway Company, 2 L. R., C. P. 15.
g. Inspection of Register. Mandamus for.]-A judgment creditor had issued an elegit against the lands of a railway company, which had been returned by the sheriff, but such lands were insufficient to satisfy the judgment debt :-Held, that he was entitled to issue execution against the shareholders within 8 & 9 Vict. c. 16, s. 36, and therefore the court 'granted a mandamus to the company to produce the register of shareholders for his inspection. Reg. v. Derbyshire, Staffordshire and Worcester Junction Railway Company, 3 El. & Bl. 784; 23 L. J., Q. B. 333;
18 Jur. 1054.
Right, How enforced.]-The right of a judgment creditor to inspect the list of shareholders may be enforced by a rule of court or an order of a judge. Meader v. Isle of Wight Ferry Company, 9 W. R. 750.
1. WHAT COMPANIES.
Incorporated by Statute.]-The court of Chancery has jurisdiction under the Companies Act, 1862, s. 199, to wind up a canal company incorporated by act of parliament, and will make a winding-up order in such a case, although it may be necessary to apply for an act of parliament to enable the property of the company to be sold. Bradford Navigation Company, In re, 10 L. R. Eq. 331; 18 W. R. 592.
Building Company.]—The winding-up provisions of the Companies Act, 1862 and 1867, are applicable to societies registered under the Building Societies Act, 1874. Andrew or Jones v. Swansea Cambrian Benefit Building Society, 50
L. J., Q. B. 428; 44 L. T. 106; 29 W. R. 382; 45 fraud. London and Caledonian Marine Insur-
Railway Company Unregistered.]-The exception from the power to wind up unregistered companies given by the Companies Act, 1862, s. 199, of railway companies incorporated by act of parliament, applies only to companies whose principal object is the construction of a railway, and therefore a company whose principal object is the construction of docks is not brought within the exception by reason of having power also to make a branch railway for purposes connected with the docks. Exmouth Docks Company, In re, 17 L. R., Eq, 181; 43 L. J., Ch. 110; 29 L. T. 573; 22 W. R. 104.
When in an act of parliament incorporating a company, it is stated that the construction of the works authorized by the act is of public advantage, the court will be reluctant to make an order to wind up the company, unless it is shewn that there is no other process by which its difficulties Ib. can be overcome.
A railway company may be registered, under the Companies Act, 1862, and wound up pursuant to its provisions. Ennis and West Clare Railway Company, In re, Hill, Ex parte, 3 L. R., Ir. Ch.
ance Company, In re, 11 Ch. D. 140; 40 L. T.
Company Unincorporated.]—In April, 1871, a
Foreign Company-Business in England. ]-If it appears from the memorandum and articles of association that some kind of management and business in England is contemplated, the company comes within the provisions of the Com-out subsequently that the first moiety of the panies Act, 1862, and may be properly registered under that act, although all the subscribers to the memorandum and all the directors are foreigners residing abroad. But if, after it has been registered, such a company does not carry on business in this country, proceedings may be taken to have it wound up; and the court has jurisdiction to make a winding-up order, although all its share-be holders are foreigners, and it has never transacted any business in England. General Company for Promotion of Land Credit, In re, 5 L. R., Ch. 363; 39 L. J., Ch. 737 ; 22 L. T. 454; 18 W. R.
Cessation of Business.]—The provisions of 7 & 8 Vict. c. 111, as to the bankruptcy of joint stock companies, continued applicable to a company until its affairs had been finally wound up as regarded its creditors, and it might therefore be adjudicated bankrupt under that act after it had ceased to carry on business, and had been dissolved by act of law. London and Eastern Banking Corporation, In re, 2 De G. & J. 484; 27 L. J., Ch. 457; 4 Jur., N. S. 743.
Illegal Company.]-The articles of association of a limited company conferred a power on the directors to issue certificates of shares transferable by delivery. Whether this provision was legal or illegal, it would not render the company illegal nor preciude it from being wound up under Ib. the order of the court.
Company Voluntarily Wound Up.]—The court has no jurisdiction to make an order for winding up a company which has been voluntarily wound up and dissolved under the 142nd and 143rd sections of the Companies Act, 1862, unless the dissolution can be impeached on the ground of
shares had not, in fact, been subscribed for in Germany, nor the requisite per-centage paid thereon, the company was never incorporated. Upon a petition by the advertising agent praying -Held, that the bank, not having been incorpothat the bank might be wound up by the court: rated, never came into existence, and could not wound up. Imperial Anglo-German Bank, In re, 26 L. T. 229-L. J.
Certificate of Registration Conclusive.]-Under vember, 1873, registered, but it did not commence the Companies Act, 1862, a company was, in Nobusiness within a year afterwards. The registrar certified that the memorandum of association had was, in July, 1875, ordered to be wound up. On been subscribed by seven persons. The company the proceedings before the chief clerk it was discovered that one of the seven persons was an infant at the time of registration; and as the chief clerk expressed a doubt whether he could proceed, the petition was presented by creditors, praying up as an unregistered company :-Held, that, that the company might be ordered to be wound under the Companies Act, 1862, ss. 6 and 18, there having been a certificate of registration, the winding-up order was valid. Nassau Phosphate Company, In re, 2 Ch. D. 610; 45 L. J., Ch. 584; 24 W. R. 692.
Held, also, that the proper course would have been to have brought the question before the been improperly presented, it must be dismissed judge in chambers, and that as the petition had with costs. Ib.
A certificate of registration of a company, under Part VII. of the Companies Act, 1862, is conclusive evidence that the company is one authorized by the act to be registered. Ennis and West Clare Railway Company, In re, Hill, Er parte, 3 L. R., Ir. Ch. 94.
Unregistered Companies.]-On a shareholder's formed in 1871 with more than twenty members, petition to wind up a company not registered and was not registered. In 1873 it made over its under the Companies Acts, the court may in assets and liabilities to a limited company, its discretion refuse to make any order, not- which was unsuccessful, and passed a resolution withstanding that there is no other way in for winding up. The solicitors who had acted which such a company can be wound up under for the unregistered company sent in a bill conthose acts. Second Commercial Benefit Building sisting of costs incurred about the formation of Society, In re, 48 L. J., Ch. 753. that company, costs incurred in defending actions brought against some of the members which the solicitors were retained by the manager and committee of the company to defend, and other costs for work done in the carrying on of the company on the like retainer :-Held, that the solicitors could not obtain an order to wind up the company, for that, as the company was illegal, no legal debt arose in respect of that part of their demand which related to the formation of the company, or was immediately connected with carrying it on; and, as to the rest, the solicitors could not shew that they were retained on behalf of all the members except by producing a deed of settlement, which was on the face of it illegal. South Wales Atlantic Steamship Company, In re, 2 Ch. D. 763; 46 L. J., Ch. 177; 35 L. T. 294—C. A.
Semble, that if such a company could be wound up, the winding up could not go beyond dealing with existing assets and providing for existing liabilities, and could not be made the members. Ib. means of enforcing contribution as between the
Semble, that a company which ought to be, but is not, registered under the Companies Act, 1862, is not an "unregistered company," that can be wound up under s. 199. Arthur Average Association, In re, 10 L. R., Ch. 542; 44 L. J., Ch. 569; 32 L. T. 713; 23 W. R, 939.
When Business Transferred.]-An unregistered company was dissolved, its place of business abandoned, and its assets and liabilities transferred to another company, before 1862. In 1869 a petition was presented by a creditor, whose debt was still unsatisfied, to wind up the company-Held, that the company was carrying on business for the purpose of winding up its affairs within the Companies Act, 1862, s. 199, clause 1, and a winding-up order was accordingly made. Family Endowment Society, In re, 5 L. R., Ch. 118; 39 L. J., Ch. 306; 21 L. T. 775; 18
W. R. 266.
Mode of Transfer.] An unregistered company which has no power under its deed of settlement to sell or transfer its business to another company may, nevertheless, carry into effect an agreement for that purpose by registering under the Companies Act, 1862, passing a resolution for voluntary winding-up, and directing the liquidators to carry out the agreement. Southall v. British Mutual Life Assurance Society, 11 L. R., Eq. 65; 40 L. J., Ch. 97; 23 L. T. 682; 19 W. R. 236. Affirmed on appeal, 6 L. R., Ch. 614; 40 L. J., Ch. 698; 19 W. R. 865.
Registration after Petition Presented.] -After the presentation of a petition to wind up an unregistered company, the company was registered, with a view to a voluntary windingup. An order having been subsequently made on the petition:-Held, that, notwithstanding the registration, the company was an unregistered company within the Companies Act, 1862, s. 203, and an order was made vesting in the official liquidator the legal estates in securities outstanding in trustees for the company, to be dealt with in the winding-up. Hercules Insurance Company, In re, 11 L. R., Eq. 321; 40 L. J., Ch.
Insolvency admitted by Seven Persons.] -Where, on a petition under s. 199 of the Companies Act, 1862, for the winding up of an alleged unregistered association, more than seven persons admit the existence and insolvency of the association, the order will go; and the question whether any opposing party is or is not a member of the association will not then be decided, whatever may be the weight of evidence in his favour, but must be determined when the list of contributories is settled. South
More than Twenty Members.]-A company for establishing a service of steamers was
of France Pottery Works Syndicate, In re, 36 L. T. 651.
In such a case the costs of the opposing party will be reserved until the question of their liability is determined. Ib.
Registration colourably obtained.]-After a company had been regularly registered, although it appears by the light of subsequent events, coupled with the registered articles of associa tion, that its objects, or its constitution, are in truth inconsistent with those intended by the act of parliament to belong to companies registered under the act-so that it may even be surmised that the incorporation of the company was Less than Seven Members.]-On a cre- colourably or evasively obtained-the registraditor's petition for the winding up of an un- tion ought not to be vacated, but the company registered loan society, formed under 3 & 4 Vict. whether solvent or insolvent, ought to be wound c. 110, the members of which formerly exceeded up. Reuss (Princess) v. Bos, 5 L. R., H. L. 176 ; seven in number, but were now only four:-40 L. J., Ch. 665; 24 L. T. 641. Affirming 5 L. Held, that, having regard to ss. 199 and 200 of R., Ch. 363; 39 L. J., Ch. 737; 22 L. T. 454; 18 the Companies Act, 1862, a winding-up order W. R. 505. could not be made when the number of members had at the date of the petition fallen below seven. Bolton Benefit Loan Society, In re, Coop v. Booth, 12 Ch. D. 679; 49 L. J., Ch. 39; 28 W.
There are no means by which such a company can be got rid of, except by a winding-up under the act; and the court has jurisdiction to order it to be wound up. Ib.
Sufficiency of Members.]-A company which had been registered as a limited company carried on business for a short time with more
than seven shareholders. On its being wound facturing coffee from dates, and also for obtainup under a supervision order it was discovered ing other patents for improvements and extenthat one of the subscribers of the memorandum sions of the said inventions or any modifications was an infant; thereupon a petition for winding up the company under the Companies Act, 1862, s. 199, was presented by a creditor and an order made. Hertfordshire Brewery Company, In re. 43 L. J., Ch. 358; 22 W. R. 359.
thereof or incident thereto; and to acquire or purchase any other inventions for similar purposes, and to import and export all descriptions of produce for the purpose of food, and to acquire or lease buildings either in connection with the above-mentioned purposes or otherwise for the purposes of the company. The intended German patent was never granted, but the company purchased a Swedish patent, and also established works in Hamburg where they made and sold coffee made from dates without a patent. Many of the shareholders withdrew from the company on ascertaining that the German patent could not be obtained; but the large majority of those who remained desired to continue the com
More than Seven.]-In reply to a circular issued by M. and D. setting forth a project for acquiring and remodelling a theatre at the cost of 12,0007., with the intention of selling it to a company to be formed for the purpose for 40,000Z., which would enable a return to be made of 3007. for every 1007. subscribed, several persons exceeding seven in number subscribed to the project. A creditor, on the grounds that the subscription to the project constituted the sub-pany, which was in solvent circumstances. A scribers partners, presented a petition to wind up the partnership under s. 199 of the Companies Act, 1862-Held, that the subscribers were partners, and being more than seven in number, came within the act, and the order was accordingly made. Royal Victoria Palace Theatre Syndicate, In re, 29 L. T. 668. Affirmed, 30 L. T. 3.
2. ORDERS for.
a. General Grounds of.
Business not commenced within One Year.] When a company is incorporated to carry on business in the United Kingdom and in other parts of the world, and it has commenced to carry on its business in a foreign country, and there appears a bonâ fide intention to commence business in this country, the mere fact that it has not actually commenced in this country the objects for which it was incorporated within a year from its incorporation is not a sufficient ground for ordering the company to be wound up under the Companies Act, 1862, s. 79, sub-s. 2. Reuss (Princess) v. Bos (5 L. R., H. L. 176) discussed and distinguished. Capital Fire Insurance Association, In re, 21 Ch. D. 209; 52 L. J., Ch. 20; 47 L. T. 123; 30 W. R. 941.
petition having been presented by two shareholders :-Held, that the substratum of the company had failed, and it was impossible to carry out the objects for which it was formed; and therefore that it was just and equitable that the company should be wound up, although the petition was presented within a year from its incorporation. German Date Coffee Company, In re, 20 Ch. D. 169; 51 L. J., Ch. 564; 46 L. T. 327; 30 W. R. 717-C. A.
Fraud.]-Semble, the mere fact of there having been fraud in the promotion of the company, or fraudulent misrepresentation in the prospectus, would not in itself be sufficient to induce the court to make a winding-up order, because the majority of the shareholders would have power at a general meeting to waive the fraud and confirm the transactions affected by it. Haven Gold Mining Company, In re, supra.
b. Compulsory and Voluntary.
Two Petitions.]-Upon two petitions of shareholders of a company, one praying for a voluntary winding-up under the supervision of the court, and the other for a compulsory winding-up, the court, being unable to ascertain the wishes of the shareholders, ordered a voluntary winding-up under the supervision of the court, but directed that any shareholder should be at liberty to inspect the books and accounts, and have liberty to Impossibility of carrying on Business.]-apply to the court touching the matter. General Where the court is satisfied that the subject- International Agency Company, In re, 36 Beav. 1. matter of the business for which a company was formed has substantially ceased to exist, it will make an order for winding-up the company, although the large majority of the shareholders desire to continue to carry on the company: Therefore, where a company was established for working a gold mine in New Zealand, and it turned out that the company had no title to the mine, and had no prospect of obtaining possession of it, except as to a small portion for a few months, a winding-up order was made, although there were general words in the memorandum of association enabling the company to purchase and work other mines in New Zealand, and the large majority of the shareholders wished to continue the company. Haven Gold Mining Company, In re, 20 Ch. D. 151; 51 L. J., Ch. 242; 46 L. T. 322; 30 W. R. 389-C. A.
Discretion of Court.]-When a shareholder who had presented a petition for winding up by the court asked at the hearing that the petition might stand over, to enable the company to pass resolutions for winding up voluntarily, the court, being of opinion that the case required investigation, made a compulsory order, giving the carriage of it to another shareholder, who appeared to support the petition. Berlin Great Market and Abattoirs Company, In re, 24 L. T. 773; 19 W. R. 793.
Compulsory converted into Voluntary.]-The court may make an order converting a compulsory into a voluntary winding-up. Bristol VicFailure of Object of Company.]-The memo-toria Potteries Company, In re, 20 W. R. 569. randum of association of a company stated that it was formed for working a German patent which had been or would be granted for manu
Effect of Compulsory Order.]-The making a compulsory order for winding up a company