Prec.VIII. 1. That pursuant to and by virtue of the powers conferred 3. Or that your lordship will make such further or other meet. And your petitioner will ever pray, &c. It is intended to serve this petition upon the said South Barrule Slate Quarry Company, Limited, and the said liquidators. ORDERS. The following are some of the orders commonly made on or in relation to winding-up petitions :— ORDER I. APPOINTING PROVISIONAL OFFICIAL LIQUIDATOR. and both of UPON the application of creditors of the above-named company, the petitioners in the petition presented in these matters on the 1st day of September, 1876, by summons dated the 8th day of September, 1876, and upon hearing the solicitors for the applicants and for the said company, and upon reading the said petition and two affidavits of J. H., one of the petitioners, filed the 10th and 12th September, 1876, respectively, and an affidavit, &c., and by consent of the said company, The Judge doth hereby appoint W. M., of, public accountant, provisionally official liquidator of the above-named company. And it is ordered that the said W. M. do, on or before the 9th of November, 1876, give security, to be approved by the judge. And it is ordered that the said W. M. do, on the 2nd day of May, and 2nd day of November, 1877, and the same days in each succeeding year, leave his accounts at the chambers of the judge. And it is ordered that all monies to be received by the said W. M. be paid by him into the Bank of England to the credit of the account of the provisional official liquidator of the said company within seven days after the receipt thereof. Milan Tramway Co., Limited, Hall, V.-C. 15 April, 1876, B. 1611. The Court may at any time after the presentation of a petition for winding up a company under this Act, and before making an order for winding up the company, upon the application of the company, or of any creditor or contributory of the company, restrain further proceedings in any action, suit, or proceeding against the company, upon such terms as the Court think fit; the Court may also at any time after the presentation of such petition, and before the first appointment of liquidators, appoint provisionally an official liquidator of the estate and effects of the company. Section 85 of the Act. Where it is desired to appoint provisionally an official liquidator, an application for that purpose may, at any time after the presentation of Orders. Orders. 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 thinks fit, be appointed without security. Rule 15 of the Gen. Ord. of Nov, 1862. In the Marseilles Extension, &c., Co., a liquidator was appointed on motion, and to avoid delay (it being feared that part of the assets would be made away with,) the Court accepted his undertaking to give security, the petitioner undertaking to be liable for monies, &c., received by such liquidator, W. N. 1867, 68. See also, infra, p. 633, Order VIII. Provisional liquidators are very commonly appointed. In many cases the company consents; where it does not, there ought to be evidence of special circumstances, e.g., the insolvency of the company, rendering the appointment expedient. Railway Finance Co., W. N. 1876, 196; W. R. 754, Clifoden Benefit Building Soc., 3 Ch. 462; Emmerson's Case, 2 Eq. 231; In re London and Manchester, &c., Co., W. N. 1875, 256. A provisional liquidator appearing on a winding-up petition will not generally be allowed his costs. General International Agency Co., 36 Beav. 1; 13 W. R. 363. However, in The Times Life Assurance Co., the petition being dismissed, the provisional liquidator was allowed his costs. ORDER II. APPOINTING PROVISIONAL LIQUIDATOR AND RESTRICTING [Appointment of provisional official liquidator.] And this Court doth hereby limit and restrict the powers of the said J. C. to the following acts (that is to say) to getting in and protecting the assets of the said company until further order. The General Sewage and Manure Co., Limited, M. R., 2 August, 1876, A. 1494. The Court may provide by any order that the official liquidator may exercise any of the above powers [i.e., the powers specified in Section 95 of the Act], without the sanction or intervention of the Court, and where an official liquidator is provisionally appointed, may limit and restrict his power by the order appointing him. Section 96 of the Act. ORDER III. APPOINTING PROVISIONAL LIQUIDATOR AND RESTRICTING HIS [Appointment of provisional liquidator without security, usual directions as to accounts and payment into bank.] And it is ordered that the said M. be at liberty to advance the money necessary to pay wages and keep the collieries in his said affidavit mentioned going, and to repay himself out of the first monies coming to his hands. And the judge doth hereby limit and restrict the powers of the said M. to taking possession of and protecting the funds and property of the said company till further order. Victoria and Fenton Park Colliery Co., Bacon, V.-C., 7 April, 1876, B. 691. ORDER IV. APPOINTING PROVISIONAL LIQUIDATOR AND RESTRICTING Upon, &c. [appointment of provisional official liquidator, &c.] And the judge doth hereby limit and restrict the powers of the said as such provisional official liquidator to the following acts, that is to say, with the sanction of the judge, 1. To bring or defend any action, suit, or prosecution, or other legal proceedings, civil or criminal, in the name and on behalf of the company. 2. To carry on the business of the company so far as may be necessary for the beneficial winding up of the same. 3. 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. 4. 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. Sao Pedro Brazil Gas Company, Limited, Huddleston, J. (for M. R.), 3rd September, 1876, B. 1614. See Section 95 of the Act. ORDER V. RESTRICTING POWERS OF PROVISIONAL LIQUIDATOR. And this Court doth hereby limit, &c., to the following acts, namely: 1. To bring or defend, &c. 2. To carry on the business, &c. 3. To act in all cases of emergency and in matters relating to the disposition or management of the company's property, Orders. Orders. as the nature of the case may require, and generally to do all such things as may be necessary for the above purposes, except the proceeding to settle the list of contributories, and adjudg ing upon debts and claims. Canada Tanning Extract Co., M. R., 8th August, 1876, A. 1574. ORDER VI. RESTRAINING ACTION. Upon motion this day made unto this Court for W., a shareholder in the above-named company, and upon reading the petition of the said W., preferred unto this Court to wind. up the said company, and an affidavit, &c., and an affidavit of- filed the day of whereby it appears that an action has been commenced by A. & B. against the abovenamed company for the recovery of the sum of 60l. 10s. And the said W. by his counsel undertaking to abide by any order this Court may make as to damages, in case this Court should hereafter be of opinion that the said A. & B. shall have sustained any by reason of this order, which the said W. ought to pay, This Court doth order that the said A. & B. be restrained from further prosecuting the action commenced by them against the said company as in the said affidavit of the said mentioned until the hearing of the said petition, or until further order. Great Mountain Silver Lead Mining Co., Limited, Malins, V.-C., 16th March, 1876, A. 441. By Section 85 (supra, p. 627): "The Court may at any time after the presentation of a petition for winding up a company under this Act, and before making an order for winding up the company upon the application of the company, or of any creditor or contributory of the company restrain further proceedings in any action, suit, or proceeding against the company. . . ." "A petition praying wholly or in part that a voluntary winding up should continue, but subject to the supervision of the Court, and which is hereinafter referred to as a winding up subject to the supervision of the Court shall, for the purpose of giving jurisdiction to the Court over suits and actions, be deemed to be a petition for winding up the company by the Court." Section 148 of the Act. Where a company is being wound up voluntarily, the Court may, upon the application of the liquidators or any contributory of the company, exercise all or any of the powers which the Court might exercise if the company were being wound up by the Court. Section 138 of the Act, supra, p. 619. Under this section the power to restrain actions, &c., given by Section 85, can be exercised. Needham v. Rivers Protection |