When the summons is heard any contributory is entitled to appear and resist the making of any call. On any such application it is not competent for the contributory to call in question the propriety of the winding-up order. [London Marine Insurance, 8 Eq. 176.]

Nor can a person who contests his liability to be placed on the list of contributories resist on that ground the making of a call, the proper course is for him to apply that any call made may not be enforced against him until the question of his liability is decided. [Barned's Banking Co., 36 L. J. Ch. 215.]

Practically the attempt to resist a call is futile, the mere probability of large sums being realized from the general assets of the company is no reason why the contributory should be convenienced by delaying the creditor.

The amount, however, of the proposed call may occasionally for good reason shewn be diminished.

When the order for the call has been made, a copy of the order must be served upon each of the contributories included in such call, together with a notice from the official liquidator, specifying the amount or balance due from such contributory in respect of such call. The contributory must pay this sum into the Bank of England to the account of the official liquidator.

After the call has been made further proceedings are adjourned until after the day fixed for payment of the call, and at any such adjournment, or upon a summons to enforce payment of the call, an order may be made upon any contributories in default, or on such of them against whom it shall be thought proper to make such order to pay the amount of the call or any balance thereof still owing.

When the official liquidator desires to issue a writ of fi. fa. against a contributory who has not paid a call, he must obtain an order for payment of the same sum to him, direct, instead of to his account. [Leeds Banking Co., 1 Ch. 150.]

The Court will not make an order in a winding-up against a bankrupt contributory. [Mitchell's Case, 5 Ch. 400.]

In the case of a call a contributory who is also a creditor of the company cannot, unless the company be unlimited, claim to set-off the amount due to him against the call. He must pay his call and prove on the company for the amount due to him. [Grissel's Case, 1 Ch. 528.]

A person who has been settled on the list of contributories cannot even in a voluntary winding-up in an action for calls, counterclaim for debt or damages due to him from the company. [Government Security and Investment Co. v. Dempsey, 50 L. J. C. P. 199.]

Where between the presentation of a petition and a windingup order a shareholder paid £25 to the directors in anticipation of calls, it was held that that sum could only be treated as a loan to the company, and could not be taken as a pre-payment pro tanto of the calls made by the liquidator. [Pennington's Case, 45 L. T. 433.]

A voluntary liquidator can enforce payment of a call made. by the directors previous to the liquidation. [Stone v. City and County Bank, 3 C. P. D. 282.]

CHAPTER XVIII.

PROOF.

In the case of any company being wound-up under the Companies Acts, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained, or sounding only in damages, shall be admissible to proof against the company; a just estimate being made so far as is possible of the value (as at the date of the winding-up order) of all such debts or claims as may be subject to any contingency or sound only in damages or for some other reason do not bear a certain value. [C. A., 1862, s. 158.]

For the purpose of ascertaining the debts and claims due from the company, and of requiring the creditors to come in and prove their debts or claims, an advertisement shall be issued at such time as the Judge shall direct, and such advertisement shall fix a time for the creditors to send their names and addresses, and the particulars of their debts or claims and the names and addresses of their solicitors, if any, to the Official Liquidator, and appoint a day for adjudicating thereon.

Creditors need not attend upon the adjudication, nor prove their debts or claims, unless required to do so; but if so required they are to come in and prove by affidavit their debts or claims, and produce all documents within a time to be specified. Any such creditors who prove their debts will be entitled to add their costs of proof to their debt.

But where the claimant has had his debt disputed and been put to the expense of an action to prove it, he will be entitled to be paid the additional costs in full. [Bailey and Leetham's

L

Case, 8 Eq. 94; Ex parte Lombard Building Society, 45 L. T. 346.]

Where a claim is adjourned into Court and allowed with costs, only the costs of the adjournment into Court are thereby meant to be paid in full, the costs incurred in Chambers are added to the debt. [Ex parte Wright and Gamble, 8 Eq. 123.]

The liquidator must investigate the claims sent in, and ascertain so far as he is able which of such debts and claims are owing by the company. He must make out and leave at Chambers a list of all the claims sent in, distinguishing those which he admits from those which he considers require to be proved. He must support this list by affidavit: see form, p. 381.

On the adjudication, the Judge may either allow the claims upon the affidavit of the liquidator, or may require any of them to be proved by the claimants. The liquidator must give notice to the creditors whose debts or claims have been allowed.

The liquidator must give notice to the claimants whose debts have not been allowed that they are required to come in and prove them on a certain day, being not less than four days after the notice. For form of affidavit of proof, see p. 387.

Interest on all debts and claims allowed is reckoned as to such of them as carry interest according to the rate they respectively carry. On claims that do not carry interest, 4 per cent. per annum will be reckoned from the date of the winding-up order and payable after the costs, debts, and claims, and interest on those that by law carry interest have been paid.

No call can be made for the purpose of paying interest on debts which do not carry interest. [Hatfield Cask Co., 11 W. R. 971.]

This rule respecting interest on debts which do not carry interest is ultra vires and invalid. [East of England Banking Co., 4 Ch. 14.]

In the case of an insolvent company which is being wound

up, creditors whose debts carry interest are entitled to dividends only upon what was due for principal and interest at the date of the commencement of the winding-up, and it is only in the event of there being a surplus that they can have any claim for subsequent interest, in which case the dividends will be treated as applicable first in payment of interest, and then in reduction of principal. [Humber Ironworks, 4 Ch. 643.]

This rule does not, however, prevent a creditor who has the right of proof for the same debt against two companies in liquidation from receiving dividends from both companies until the full amount of debt and interest has been satisfied. [Joint Stock Discount Co., 5 Ch. 86.]

Where a creditor who holds a company's acceptances for the amount of his debt also holds debentures issued to him by the company as a collateral security therefor, his right of proof is limited to the sum that is due to him, and does not extend to the amount secured by the debenture. [Blakeley Ordnance Co., 8 Eq. 244.]

The Judicature Act, 1875, s. 10, enacts that in the windingup of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficent for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy.

Secured creditors have now to value their securities for the purposes of proof; the valuation, however, is only in respect of securities belonging to the company. [Cf. Bankruptcy Act, 1869, s. 16, sub-s. 5.]

The Bankruptcy Rules as to reputed ownership are not to be applied in the winding-up of a company. [Crumlin Viaduct Co., 11 Ch. D. 755.

Neither is sect. 87 of the Bankruptcy Act, 1869, which