and Manure Co., 1 Ch. Div. 253. Walker v. Banagher Distillery Co., W. N. 1875, 215.

"Where any company is being wound up by the Court or subject to the supervision of the Court, any attachment, sequestration, distress, or execution put in force against the estate and effects of the company after the commencement of the winding up, shall be void to all intents." Section 163 of the Act.

"When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court may impose." Section 87 of the Act.

See also Sections 197, 198, 201, and 202.

The object of the Act of 1862 is that there shall be an equal distribution of assets among the creditors, and accordingly in the absence of special circumstances the Court will, after the presentation of a windingup petition, intervene to restrain actions, executions, distresses, and other proceedings which would defeat that object.

But if the company has unfairly delayed the creditor, the Court will, under Section 87, allow him to proceed with the execution. Imperial Steam Co., 37 L. J. Ch. 517; Re London Cotton, &c., Co., 14 W. R. 575; Dimson's Fire, &c., Co., ubi supra. See, however, observations of Jessel, M.R., In re Universal Disinfector Co., 20 Eq. 162.

If before the presentation of the petition a creditor has issued execution under which goods of the company have been seized by the sheriff, the Court will not, in general, restrain the sale. The Great Ship Co., 12 W. R. 139; 33 L. J. Ch. 245. See also Re Bastow, 4 Eq. 681, and Dimson's Fire, &c., Co., 19 Eq. 202, and cases there cited. But the Court has power and will, if necessary, impose terms on the execution creditor. Re Bastow, ubi supra, where the creditor was only allowed to sell such of the property seized as consisted of pig-iron.

In re Plas-yn-Mhowys Coal Co., 4 Eq. 689, the sheriff was restrained ex parte from selling the property seized until the hearing of the petition, and upon a winding-up order being made he was directed to deliver possession to the liquidator, who was to sell, giving the execution creditor the same priority against the proceeds as if the sale had been made by the sheriff. The order is given in 4 Eq. 691. See also Re Hill Pottery Co., 1 Eq. 649. The order in this case is given in Pemberton, 668.

Whether leave ought under any circumstances to be given to issue execution after a winding-up order is doubtful. Re Universal Disinfector Co., ubi supra.

Where upon the morning of the day upon which a winding-up order was made the landlord put in a distress for rent, the Court allowed him to proceed. Re Exhall Mining Co., 12 W. R. 727.

And where a company, having agreed to take an assignment of a lease, continued in possession after the winding-up order and left goods on the premises, it was held that the lessor was not prevented by Sections 87 or 163 of the Act from distraining on the goods for rent accrued since the winding up. In re Lundy Granite Co., 6 Ch. 462.

Section 10 of the Judicature Act, 1875, has not altered a landlord's position under the Act of 1862. In re Coal Consumers Co., 4 Ch. Div. 625.

There is a conflict of authority as to the Court to which an application under Section 85 of the Act to restrain an action should be made. The

Orders.

Orders.

Master of the Rolls considers that, having regard to Subsection 5 of Section 24 of the Judicature Act, 1873, application ought to be made to the Divisional Court of the Division before which or (where a judge can be selected,) to the judge before whom the action is pending. In re People's Garden Co., 1 Ch. Div. 44; In re Morriston, &c., Co., W. N. 1877, 20.

The subsection above referred to is as follows:

(5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto: Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment, or otherwise, any judgment, decree, rule, or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purpose of justice; and the Court shall thereupon make such order as shall be just. Malins, V.-C., on the other hand, considers that the Chancery Division can restrain an action pending in any other Division in the same manner as it could before the Judicature Act. Needham v. Rivers Protection and Manure Co., 1 Ch. Div. 253. In this case the V.-C. made an order restraining an action in the Common Pleas Division, and his Lordship has since frequently made such orders.

Bacon, V.-C., takes the same view as Vice-Chancellor Malins. In re Stapleford Colliery Co., 24 W. R. 173; W. N. 1875, 256; and so does Hall, V.-C., who has made many orders restraining actions in the other Divisions. See infra, Orders VIII. and IX.

Moreover, in Kingchurch v. The People's Garden Co., 1 C. P. Div. 45 (Nov. 10, 1875), an application was made to the Common Pleas Division to stay an action against a company, for the winding up of which a petition was pending before the Master of the Rolls. The Court (Coleridge, C.J. and Grove and Archibald, JJ.), were clearly of opinion that they had jurisdiction to make the order, but considered that the M.R. also had jurisdiction, and that it was much more convenient that the application should be made to him. Accordingly the order was refused.

There can be no doubt that it is far more convenient that the Court of Chancery should have power to restrain actions in the other divisions against a company for the winding up of which a petition has been presented. And it is to be hoped that the view taken by the three ViceChancellors and the Common Pleas Division will, (should the matter come before the Court of Appeal,) be held to be correct. See further, Walker v. Banagher Distillery Co., 1 Q. B. 129; Garbutt v. Faweus, 1 Ch. Div. 155; Seton on Decrees, 324.

ORDER VII.

RESTRAINING ACTIONS.

Upon motion this day made unto this Court by R., claiming to be a creditor of the above-named company, the petitioner named in a certain petition on the 16th May, 1876, preferred unto this Court to wind up the said company, and upon reading, &c., and the said R. by his counsel undertaking, &c., should this Court hereafter be of opinion that the persons named in the schedule to this order shall have sustained any damage by reason of this order, which the said R. ought to pay, This Court doth order that the persons named in the schedule to this order be restrained from further prosecuting the several actions in the same schedule mentioned commenced by them against the said company until, &c.

THE SCHEDULE ABOVE REFERRED TO.

The Yorkshire Civil Service Supply Association, Limited, Malins, V.-C. 17 May, 1876, B. 800.

ORDER VIII.

RESTRAINING ACTION BY A COMPANY.

Upon motion, &c., for the W. & B. Co., Limited, and upon hearing counsel for the Central American Telegraph Co., Limited, and for G. A. C., hereinafter named, and upon reading the petition of the W. & B. Co., Limited, on the 20th May, 1876, preferred unto this Court, and the affidavits of, &c., all filed the 21st May, 1876. This Court doth hereby appoint G. A. C., of, provisionally official liquidator of the said

Orders.

Orders.

Central, &c., Co., Limited, he by his counsel undertaking to give such security as the Court may direct, within ten days after the date of this order, And the said W. & B. Co., Limited, by R. N. C., their secretary, undertaking [usual as to damages]. This Court doth order that Hooper's Telegraph Works, Limited, and their solicitors and agents, be restrained from further prosecuting the three several actions respectively commenced by them, as in the said affidavit of the said R. N. C. mentioned, and from commencing or prosecuting any further actions against the said Central, &c., Co., until the hearing of the said petition or until further order. Central American Telegraph Co., Limited, Hall, V.-C., 31 May, 1876, A. 933.

ORDER IX.

APPOINTING PROVISIONAL LIQUIDATOR AND RESTRAINING
ACTION.

Upon motion, &c., for W. W., of, trading under the style of, the petitioner named, &c., and upon hearing, &c., this Court doth appoint J. C., of, provisionally official liquidator of the said company. And it is ordered that he the said J. C. do on or before the 12th day of August next, give security to be approved by the judge. And it is ordered [accounts-balances to be paid into bank, &c.] and the petitioner W. W. [usual undertaking.] This Court doth order that W. D., of, be restrained from prosecuting the action commenced by him in the Queen's Bench Division of this Court against the said company until, &c. National Funds Assurance Co., Limited, Hall, V.-C., 27 Nov. 1876, B. 1471.

ORDER X.

RESTRAINING REMOVAL OR SALE OF GOODS.

Upon motion, &c., for, of, the provisional official liquidator of the above-named company, and upon reading, &c., and [undertaking as to damages], this Court doth order that R., of ——, his servants and agents, be restrained until over the 18th day of May, 1876, or until further order of this Court, from removing or selling the goods now on the premises situate at No. 17, Garrick Street, &c., in the affidavit

mentioned; and it is ordered that the said provisional official Orders. liquidator be at liberty to give the said notice of motion for an injunction for the 18th day of May, 1876. British Guardian Life Assurance Co., Limited, Hall, V.-C., 15 May, 1876, A. 878.

ORDER XI.

RESTRAINING FURTHER PROCEEDINGS UNDER JUDGMENT AND
EXECUTION.

Upon motion, &c., for J. S., of, the sole petitioner, &c. And [usual undertaking]. This Court doth order that the said J. H. N. be restrained until the hearing of the said petition, or until further order, from continuing any further or other proceedings under the judgment and execution obtained by him against the said company. Newbury and Lamborne Tramway Co., Limited, Huddleston, B. (for Bacon, V.-C.), 20 Sep. 1876, B.

Upon motion, &c., for H., the petitioner, &c. This Court doth order that Messrs. F., P., and F. be restrained until the hearing of the said petition from parting with the proceeds of the sale of the furniture and effects in the order dated the 15th November, 1876 mentioned, except by paying the same into Court. Bayswater Club, &c., Co., Limited, Hall, V.-C., at chambers, 24 Nov. 1876, A. 1819.

ORDER XIII.

RESTRAINING SHERIFF FROM SELLING.

Upon motion, &c., for C., of, claiming to be a creditor of the above-named company, who alleged that a petition for winding up the said company was on the 31st day of May, 1876, preferred unto this Court by him, that Messrs. A., of in the affidavit of the said C. named, have obtained judgment against the said company, and levied execution upon the goods and chattels of the said company, now in or about the offices No. —, Charing Cross, &c., and upon reading the