Appointment in certain cases of voluntary liquidators to office of official liquidators. Dispositions after the commencement of the winding up avoided. The books of the company to be evidence. As to disposal of books, accounts, and documents of the company. Inspection of books. Power of assig nee to sue. Debts of all descriptions to be proved. been made for winding up the company altogether by the court, and in the construction of the provisions whereby the court is empowered to direct any act or thing to be done to or in favour of the official liquidators, the expres sion official liquidators shall be deemed to mean the liquidators conducting the winding-up, subject to the supervision of the court. 152. Where an order has been made for the winding-up of a company subject to the supervision of the court, and such order is afterwards superseded by an order directing the company to be wound up compulsorily, the court may in such last-mentioned order, or in any subsequent order, appoint the voluntary liquidators or any of them, either provisionally or permanently, and either with or without the addition of any other persons, to be official liquidators. Supplemental Provisions. 153. Where any company is being wound up by the court or subject to the supervision of the court all dispositions of the property, effects, and things in action of the company, and every transfer of shares, or alteration in the status of the members of the company made between the commencement of the winding-up and the order for winding up, shall, unless the court otherwise orders, be void. 154. Where any company is being wound up, all books, accounts and documents of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded. 155. Where any company has been wound up under this act and is about to be dissolved, the books, accounts, and documents of the company and of the liquidators may be disposed of in the following way; that is to say, where the company has been wound up by or subject to the supervision of the court, in such way as the court directs, and where the company has been wound up voluntarily, in such way as the company by an extraordinary resolution directs; but after the lapse of five years from the date of such dissolution, no responsibility shall rest on the company, or the liqui dators, or any one to whom the custody of such books, accounts, and documents has been committed, by reason that the same, or any of them, cannot be made forthcoming to any party or parties claiming to be interested therein. 156. Where an order has been made for winding up a company by the court, or subject to the supervision of the court, the court may make such order for the inspection by the creditors and contributories of the company of its books and papers as the court thinks just; and any books and papers in the possession of the company may be inspected by creditors or contributories, in conformity with the order of the court, but not further or otherwise. 157. Any person to whom any thing in action belonging to the company is assigned, in pursuance of this act, may bring or defend any action or suit relating to such thing in action in his own name. 158. In the event of any company being wound up under this act, 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 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. 159. The liquidators may, with the sanction of the court, where the com- General scheme pany is being wound up by the court or subject to the supervision of the of liquidation court. and with the sanction of an extraordinary resolution of the company tioned. may be sancwhere the company is being wound up altogether voluntarily, pay any classes of creditors in full, or make such compromise or other arrangement as the liquidators may deem expedient with creditors or persons claiming to be creditors, or persons having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable. 160. The liquidators may, with the sanction of the court, where the company Power to comis being wound up by the court or subject to the supervision of the court, and promise. with the sanction of an extraordinary resolution of the company where the company is being wound up altogether voluntarily, compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets of the company or the winding up of the company, upon the receipt of such sums, payable at such times and generally upon such terms as may be agreed upon, with power for the liqui dators to take any security for the discharge of such debts or liabilities, and to give complete discharges in respect of all or any such calls, debts, or liabilities. 161. Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first-mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement, receive in compensation or part compensation for such transfer or sale shares, policies, or other like interests in such other company, for the purpose of distribution amongst the members of the company being wound up, or may enter into any other arrangement whereby the members of the company being wound up may, in lieu of receiving cash, shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company; and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be binding on the members of the company being wound up; subject to this proviso, that if any member of the company being wound up, who has not voted in favour of the special resolution passed by the company of which he is a member at either of the meetings held for passing the same, expresses his dissent from any such special resolution in writing addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the following things as the liquidators may prefer; that is to say, either to abstain from carrying such resolution into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, such purchase-money to be paid before the company is dissolved, and to be raised by the liquidators in such manner as may be determined by special resolution. No special resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or concurrently with any resolution for winding up the company, or for appointing liquidators; but if an order be made within a year for winding up the company by or subject to the supervision of the court, such resolution shall not be of any validity unless it is sanctioned by the court. Power for liquidators to accept shares, &c. as a sale of property of company. consideration for Mode of determining price. Certain attach 162. The price to be paid for the purchase of the interest of any dissentient member may be determined by agreement, but if the parties dispute about the same, such dispute shall be settled by arbitration, and for the purposes of such arbitration the provisions of "The Companies Clauses Consolidation Act, 1844," with respect to the settlement of disputes by arbitration, shall be incorporated with this act; and in the construction of such provisions this act shall be deemed to be the special act, and "the company" shall mean the company that is being wound up, and any appointment by the said incorporated provisions directed to be made under the hand of the secretary, or any two of the directors, may be made under the hand of the liquidator, if only one, or any two or more of the liquidators if more than one. 163. Where any company is being wound up by the court or subject to ments, sequestra- the supervision of the court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents. tions, and executions to be void. Fraudulent preference. Power of court to assess damages against delinquent directors and officers. Penalty on falsification of books. Prosecution of delinquent di 164. Any such conveyance, mortgage, delivery of goods, payment, execution, or other act relating to property as would, if made or done by or against any individual trader, be deemed in the event of his bankruptcy to have been made or done by way of undue or fraudulent preference of the creditors of such trader, shall, if made or done by or against any company, be deemed, in the event of such company being wound up under this act, to have been made or done by way of undue or fraudulent preference of the creditors of such company, and shall be invalid accordingly; and for the purposes of this section the presentation of a petition for winding up a company shall in the case of a company being wound up by the court or subject to the supervision of the court, and a resolution for winding up the company shall in the case of a voluntary winding-up, be deemed to correspond with the act of bankruptcy in the case of an individual trader; and any conveyance or assignment made by any company formed under this act of all its estate and effects to trustees for the benefit of all its creditors shall be void to all intents. 165. Where, in the course of the winding up of any company under this act, it appears that any past or present director, manager, official or other liquidator, or any officer of such company, has misapplied or retained in his own hands or become liable or accountable for any moneys of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, manager, or other officer, and compel him to repay any moneys so misapplied or retained, or for which he has become liable or accountable, together with interest after such rate as the court thinks just, or to contribute such sums of money to the assets of the company by way of compensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the court thinks just. 166. If any director, officer, or contributory of any company wound up under this act destroys, mutilates, alters, or falsifies any books, papers, writings, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or other document belonging to the company with intent to defraud or deceive any person, every person so offending shall be deemed to be guilty of a misdemeanor, and upon being convicted shall be liable to imprisonment for any term not exceeding two years, with or without hard labour. 167. Where any order is made for winding up a company by the court or subject to the supervision of the court, if it appear in the course of such winding-up that any past or present director, manager, officer, or member rectors in the of such company has been guilty of any offence in relation to the company case of winding for which he is criminally responsible, the court may, on the application of up by court. any person interested in such winding-up, or of its own motion, direct the official liquidators, or the liquidators, (as the case may be,) to institute and conduct a prosecution or prosecutions for such offence, and may order the costs and expenses to be paid out of the assets of the company. 168. Where a company is being wound up altogether voluntarily, if it Prosecution of appear to the liquidators conducting such winding-up that any past or pre- delinquent direcsent director, manager, officer, or member of such company has been guilty tors, &c. in case of voluntary of any offence in relation to the company for which he is criminally respon- winding up. sible, it shall be lawful for the liquidators, with the previous sanction of the court, to prosecute such offender, and all expenses properly incurred by them in such prosecution shall be payable out of the assets of the company in priority to all other liabilities. 169. If any person, upon any examination upon oath or affirmation, Penalty of perauthorized under this act, or in any affidavit, deposition, or solemn affirma- jury. tion in or about the winding-up of the company under this act, or otherwise in or about any matter arising under this act, wilfully and corruptly gives false evidence, he shall, upon conviction, be liable to the penalties of wilful perjury. Power of Court to make Rules. Power of Lord Great Britain to See Rules So 170. In England the Lord Chancellor of Great Britain, with the advice and consent of the Master of the Rolls, and any one of the Vice-Chancellors for the time being, or with the advice and consent of any two of the ViceChancellors, may, as often as circumstances require, make such rules concerning the mode of proceeding to be had for winding up a company in the made, post. Court of Chancery as may from time to time seem necessary, but until such rules are made the general practice of the Court of Chancery, including the practice hitherto in use in winding up companies, shall, so far as the same is applicable and not inconsistent with this act, apply to all proceedings for winding up a company. COUNTY COURT ORDER. 1st January, 1868. 2. The general order, rules and forms of the High Court of Chancery 25 & 26 Vict. c. regulating the mode of proceeding under "The Companies Act, 1862," 87. (25 & 26 Vict. c. 89,) shall be the order, rules and forms in all proceedings in the county courts for the winding up of a society registered under "The Industrial and Provident Societies Act, 1862," (25 & 26 Vict. c. 87,) so far as the same are applicable: Provided that, where it shall appear to the court inconvenient that the Bank of England should be the bank used for the purposes mentioned in the order and rules, it shall be competent for the court to name some bank to be used in lieu of the Bank of England. COMPANIES ACT, 1862. ORDER OF COURT. Tuesday, the 11th day of November, 1862. THE RIGHT HONORABLE RICHARD BARON WESTBURY, Lord High Chancellor of Great Britain, with the advice and consent of the RIGHT HONORABLE SIR JOHN ROMILLY, Master of the Rolls, the HONORABLE the VICE-CHANCELLOR SIR RICHARD TORIN KINDERSLEY, the HONORABLE the VICE-CHANCELLOR SIR JOHN STUART, and the HONORABLE the VICE-CHANCELLOR SIR WILLIAM PAGE WOOD, Doth hereby, in pursuance and execution of the powers given by the statute 25th and 26th Victoria, chapter 89, and of all other powers and authorities enabling him in that behalf, Order and direct in manner following: 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 in its most usual style or firm. 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 of Lincoln's Inn Hall, once in the "London Gazette," and once at least in two London 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 principal 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). 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 any such member or members of the company as the court may direct; and every petition for the winding-up of a company subject to the supervision of the court, shall be served upon the liquidator (if any) appointed for the purpose of winding-up the affairs of the company. 4. Every petition for the winding-up of any company by the court, or |