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Orders.

said affidavit, and the said [usual undertaking], This Court doth order that the sheriff of Middlesex be restrained until the hearing of the said petition or until further order from selling any of the said goods and chattels under the said execution. Percy, &c., Co., Limited, M. R., 27 April, 1876, B. 656. ORDER XIV.

RESTRAINING ISSUE OF EXECUTION.

Upon motion, &c., for &c., who alleged that J. W. and F. P. have obtained judgment against the above-named company for the sum of 571. 6s. 9d., and are in a position to issue execution against the said company, as by the affidavit of the said filed, &c., appears, and that a petition was on the 6th of April, 1876, preferred, &c., and that by an order dated the 7th of April, 1876, the said was appointed provisionally official liquidator of the said company, and upon reading the said affidavit, petition, and order, and [usual undertaking] this Court doth order that the said J. W. and F. P. W. be restrained, until, &c., from issuing execution on the judgment obtained by them against the said company referred to in the affidavit of the said -. Victoria and Fenton, &c., Co., Limited,

Bacon, V.-C., 31st May, 1876, B. 914.

ORDER XV.

RESTRAINING DISTRESS FOR RATE.

Upon motion, &c., for—, and —, the liquidators of the above-named company, and upon reading the petition of T. B., on &c., preferred unto this Court, and two affidavits, &c., and [usual undertaking] this Court doth order that the corporation of the Borough of Hanley, their solicitors and agents, be restrained until after the hearing of the said petition from proceeding to levy a distress on the goods of the said company in respect of the rate or sum of £—, in the said affidavit of the said mentioned. Hanley Hotel Co., Limited, M. R., 23rd May, 1876, A. 881.

ORDER XVI.

TRANSFERRING PETITION FROM ONE JUDGE TO ANOTHER.

Upon the petition of F. H., this day preferred unto this

Court, and the solicitors for the above-named company, parties having subscribed the said petition, signifying their consent to the prayer thereof. It is ordered that the above-mentioned matters marked for the Master of the Rolls be transferred to the Vice-Chancellor Sir Charles Hall, and that the same when so transferred be hereafter considered as matters originally marked for the Vice-Chancellor Sir Charles Hall, provided that no order made by the Master of the Rolls be varied or reversed, otherwise than by the Court of Appeal. British Guardian Life Assurance Co., Limited, Lord Chancellor, 11th May, 1876, A. 836. See also Seton on Decrees, 318.

When a petition to wind up a company has been presented, another petition for the same purpose subsequently presented and marked for some other judge will be ordered to be transferred to the judge with whose name the first petition is marked. In re West Hartlepool Ironworks Co., 10 Ch. 629. In this case (it was before the Judicature Act,) the transfer was ordered by the L.JJ. on motion for the first petitioner.

Since the Judicature Act the Court of Appeal has no jurisdiction to order a transfer. In re Boyd's Trusts, 1 Ch. Div. 12. Transfers are now made under Order LI., Rule 1, by the Lord Chancellor. Application to the Secretary of the Lord Chancellor is sufficient if accompanied by the written consent of all parties. If all parties do not consent, the application must be made in Court. See Memorandum, 1 Ch. Div. 41; Morgan's Ch. Acts, 591; Seton on Decrees, 320.

It may here be mentioned that by Order LI., Rule 2 A. of the Rules (Judicature Act, 1875), "When an order has been made by any judge of the Chancery Division for the winding up of any company under the Companies Acts, 1862 and 1867, or for the administration of the assets of any testator or intestate, the judge in whose Court such winding up or administration shall be pending shall have power, without any further consent, to order the transfer to such judge of any action pending in any other division, brought or continued by or against such company, or by or against the executors or administrators of the testator qr intestate whose assets are being so transferred, as the case may be."

This rule, however, does not enable a judge of the Chancery Division who has made an order for winding up a company, to direct the transfer to himself of a winding-up petition pending before another judge of the same Division. Re National Funds Assurance Co., 25 W. R. 23.

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ORDER XVII.

LEAVE TO FILE AFFIDAVIT VERIFYING PETITION AFTER THE
FOUR DAYS' LIMIT.

Upon motion, &c., for A., who alleged that the said A. on the 1st day of April, 1876, presented his petition in these

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matters to this Court, but omitted to file his affidavit in support of such petition within the time limited in that behalf by the general order of this Court, and upon reading an affidavit of R. L., filed the 11th of October, 1876, this Court doth order that the said L. P. A. be at liberty to file his affidavit in support of the said petition notwithstanding the time limited for that purpose has expired. Civil, &c., Supply Association, M. R., 11 April, 1876, A. 723.

"Every petition for the winding up of any company by the Court, or subject to the supervision of the Court, shall be verified by an affidavit referring thereto in the form or to the effect set forth in Form No. 2 in the third schedule hereto; such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof; and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition." Gen. Ord., 1862, Rule 4.

The Form referred to in the above Rule is as follows:
In Chancery,

In the matter, &c.

I, A. B., of, &c., make oath and say, that such of the statements in the petition now produced and shown to me, and marked with the letter A., as relate to my own acts and deeds, are true, and such of the said statements as relate to the acts and deeds of any other person or persons, I believe to be true. Sworn, &c.

The affidavit in support of the petition for winding up having been inadvertently filed before the petition was presented, the Court ordered the petition to be presented again, the affidavit to be re-sworn, and the order for winding up dated subsequently. Re Western Benefit Building Society, 33 L. J. Ch. 179; 33 Beav. 368.

The four days limited by the above Rule for filing the affidavit verify. ing the petition may, under Rule 73 [infra, p. 647,] be extended by the Court. Re Patent Screwed Boot and Shoe Co., 32 Beav. 142.

Where the affidavit had not been sworn till nine days after the presentation of the petition, it was ordered nevertheless that it should be taken as sufficient primâ facie evidence of the statements in the petition. The Kentish, &c., Co., 13 W. R. 448.

And in the East Cambrian Gold Mining Co., 12 L. T. N. S. 587, the Court under special circumstances, made a winding-up order although the affidavit in support of the petition had not been filed within four days.

In the London and Westminster Co-operative Store Co., 17 L. T. N. S. 559, the affidavit had not been sworn till the fifth day, and Lord Romilly, M.R., under Rule 73, enlarged the time.

In the case of the Anglo-Danish Steam Navigation Co., 15 W. R. 105; 15 L. T. 407, the petitioner residing at Dantzic, the Court, upon motion, enlarged the time for filing the affidavit to ten days.

In the case of the Fortune Copper Mining Co., 10 Eq. 390; 22 L. T. 650, a petition had been presented under a power of attorney executed

by the petitioner, who was resident in a colony, to a solicitor in this country, and, it being impossible to comply with the above rule, the Court made the winding-up order upon verification of the petition by an affidavit of the solicitor, deposing of his own knowledge to the facts stated in the petition.

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ORDER XVIII.

COMPULSORY WINDING UP.

Upon the petition of A. [or of the above-named company] a creditor [or a contributory of the above-named company] on the day of preferred unto Her Majesty's High Court of Justice, and upon hearing counsel for the petitioner and for the respondents, the above-named company, and for B., a creditor of the said company, and upon reading the said petition, an affidavit of A., filed the day of, verifying the said petition, an affidavit of &c., the London Gazette, of day of the Times newspaper, of the

the

of

day

[enter any other newspapers], each containing an advertisement of the said petition. This Court doth order that the above-named Company, Limited, be wound up by this Court under the provisions of the Companies Acts, 1862 and 1867. And it is ordered that the petitioner and the said company and the said B. be allowed their costs of and relating to the petition out of the assets of the said company, such costs to be taxed by the taxing master.

If several creditors and contributories appear and support the petition the order as to costs will be as follows:

And it is ordered that the said A., and the said company, and the said B., C., D., and E., be allowed their costs of and relating to the petition out of the assets of the said company, such costs to be taxed by the taxing master, who is to allow only one set of costs between the said creditors), and only one set of costs between the said

(the contributories).

and

(the
and

COSTS.

With regard to costs :-

(1.) Where a winding-up order is made, the usual order is that the petitioner, the company, and the shareholders and creditors appearing in support of the petition are to be paid their costs out of the assets of the company, but only one set of costs is given to

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such shareholders and one to such creditors. In re Humber Iron Works Co., 2 Eq. 15; In re European Banking Co., Ex parte Baylis, 2 Eq. 521.

(2.) Where the petition is dismissed, the petitioner is usually ordered, as In re European Banking Co., Ex parte Baylis, ubi supra, to pay the costs of the company, and one set of costs to the shareholders and creditors opposing. See also Heaton's Co., W. N. 70, 84.

But there is no rule that only one set of costs should be given to opposing creditors and shareholders. Thus in the case of Re AngloEgyptian Navigation Co., 8 Eq. 660, James, V.-C., having dismissed the petition, said: "Generally, no doubt, the Court will not grant more than one set of costs to the same class of persons opposing. Thus it will, as a general rule, give only one set of costs to creditors opposing, be they 10 or 10,000. So it will only give one set of costs to opposing shareholders, supposing it finds that the opposing shareholders are sufficiently represented by one set of opponents. . . . Here the opposing shareholders have a distinct interest apart from the company, and whilst, no doubt, the opposing shareholders constitute the majority, yet I think, there is a substantial conflict of interest between the shareholders who oppose and those who support this petition, apart from the interest of the company; the argument having been that the opponents were a preponderating majority, and were in a position to overbear the rest. On that ground I give the opposing shareholders one set of costs in addition to those of the company."

So also in Re Albion Bank, W. N. 1866, 388, an affidavit having been filed on behalf of the company, showing that the bank was in a satisfactory condition, and the petitioner not having answered it, although he had had full opportunity, the petition was dismissed and the petitioner was ordered to pay the costs of all parties.

In Re Humber Iron Works Co., 2 Eq. 15, Romilly, M.R., laid down a rule on which he intended to act, that where the Court refused to make a winding-up order, shareholders or creditors supporting the petition would not have their costs, and that shareholders, directors, and others opposing would not have their costs unless personally assailed by a charge which is disproved, but as appears from the cases before mentioned this rule is not now acted on.

In some cases, although a petition is dismissed, the company is ordered to pay the petitioner's costs. See supra, p. 599, and The Great Northern Copper Co., 14 W. R. 715.

As to costs where the petition is withdrawn, see infra, p. 647.

COSTS OF CONCURRENT PETITIONS.

As to the costs of concurrent petitions;

Where two or more petitions have been presented for the winding up of the same company, and the subsequent petitioners had not notice of the presentation of the first one, the usual course is to make one windingup order on all, in which case the petitioners get their costs. Owen's Patent Wheel Co., 22 W. R. 151; W. N. 1873, 226. Australian Agency Corp. 22 W. R. 45. See Order XIX., infra, p. 642.

But each of several petitions will be looked at separately on its own merits, and the Court will consider whether, if there were no other

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