the holder of shares in the said company, and that the whole amount of the said shares has not been paid up, but that there remains to be paid on and in respect of each of such shares the sum of £capital of the said company.

towards the

15. The paper writing now produced and shown to me marked A. is an extract from the said Register Book which relates to the said S. S.

16. I verily believe that the said S. S. now is a shareholder in the said company as aforesaid, and that he was such on the

19— (x).

66

Sworn [&c., as usual; see post, “ Affulavits ”]. This affidavit is filed on behalf of the plaintiff.

8. Order on such Application (y).

[Formal parts as usual.]

Upon hearing [the solicitors] for the plaintiff and S. S. [of tively, and upon reading the affidavit of filed the

19-:

day of

-] respec

day of

It is ordered that the plaintiff be at liberty to issue execution [or a writ of fieri facias] against the said S. S. upon the judgment recovered herein against the above-named defendant company, dated the

day of

19-, to the extent of the moneys now remaining to be paid on or in respect of his shares in the said company towards the capital of the said company [or to the extent of £, specifying the extent].

[The Master may order any issue or question to be tried; see R. S. C., Ord. XLII., r. 23, ante, p. 454.]

SECTION V.-COMPANIES REGISTERED UNDER THE COMPANIES ACTS, 1862 TO 1900.

1. Writ of Summons and other Proceedings.

The writ of summons and forms of other proceedings, including the execution against the property of the company, are the same as in ordinary cases. The company should be described in the writ and proceedings by the name by which it has been registered or incorporated. If the company be one with limited liability, the word "limited" forms part of the name, and must be added. As to changes of name during proceedings, see the Companies Act, 1862, s. 13.

By the Companies Act, 1862, s. 95, the official liquidator of a company

(r) The date of the return of the sheriff of nulla bona to the execution against the company (see Nixon v. Green, 11 Exch. 550; 25 L. J. Exch. 209).

(y) See 2 Pract. 14th ed. 1076.

which is being wound up is empowered to bring or defend any action in the name and on behalf of the company. In all cases, whether the winding up be compulsory or voluntary, the name of the company alone, and not that of the liquidator, should be inserted in the proceedings.

2. Affidavit of Service of Writ of Summons upon Defendant Company (2). [Title, &c., of action as usual.]

I, P. S., of

[clerk to Mr. S. P., of the same place], solicitor in this action for the above-named plaintiff, make oath and say as follows:

day of

1. I did on the 19, serve the above-named defendant company [- Limited] with a true copy of the writ of summons in this action, which appeared to me to have been regularly issued out of the Central Office of the Supreme Court [or the District Registry of the High Court of Justice] against the above-named defendant company, at the suit of the above-named plaintiff, and which was dated the day of, 19-, by leaving the same [or by sending the same by post in a prepaid letter or envelope addressed to the said defendant company] at, in the [county] of [the company's registered office], which is the registered office of the said defendant

company.

2. At the time of the said service the said writ and the copy thereof were subscribed and indorsed in the manner and form prescribed by the Rules of the Supreme Court.

of the month and the week of the said service on the said defendant

company.

Sworn [&c., as usual].

This affidavit is filed on behalf of the plaintiff.

3. Statement of Claim in Action by a Company against a Member for Calls due from him to the Company (a).

[See the form given ante, p. 48.]

(3) See R. S. C., Ord. IX., r. 8, ante, p. 76, n (e). The Companies Act, 1862, s. 62, provides that "any summons, notice, order or other document required to be served upon the company may be served by leaving the same, or sending it through the post in a prepaid letter addressed to the company at their registered office."

By s. 63, "Any document to be served by post on the company shall be posted in such time as to admit of its being delivered in the due course of delivery within the period, if any, prescribed for the service thereof; and in proving service of such document it shall be sufficient to prove that such document was properly directed, and that it was put as a prepaid letter into the post office."

(a) Action for Calls.]—The Companies Act, 1862 (25 & 26 Vict. c. 89), s. 70, provides that "In any action or suit brought by the company against any member to recover any call or other moneys due from such member in his character of member, it shall

4. Application for Order for Security for Costs under the Companies Act, 1862, s. 69 (b).

[Formal parts as usual in application to Master] for an order that the plaintiffs do give security for the defendant's costs in this action to the satisfaction of the Master, and that in the meantime all further proceedings be stayed [and that the costs of this application be the defendant's in any event].

[An order may be framed from the terms of the summons.]

5. Affidavit in support of Application.

The affidavit should state that there is sufficient reason to believe that if the defendant is successful in his defence, the assets of the plaintiff company will be insufficient to pay his costs; and should state the facts upon which that statement is based, and the deponent's means of knowing them. As a rule, it should also state that security has been demanded and refused (see ante, p. 195). The mere fact that the company is being wound up is, primâ facie, a sufficient reason for making the order without any affidavit.

6. Application to stay Action after Petition or Resolution to wind up (c). [Formal parts as usual in application to Judge] for an order that all further proceedings in this action be stayed on the ground that a petition has been presented to wind up the defendant company [or that the defendant company is being wound up voluntarily].

not be necessary to set forth the special matter, but it shall be sufficient to allege that the defendant is a member of the company, and is indebted to the company in respect of a call made or other moneys due whereby an action or suit hath accrued to the company." As a rule, however, the writ of summons should now be specially indorsed under R. S. C., Ord. III., r. 6, according to the form referred to above.

(b) Security for Costs.]-By the Companies Act, 1862, s. 69, "Where a limited company is plaintiff or pursuer in any action, suit, or other legal proceeding, any Judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that if the defendant be successful in his defence the assets of the company will be insufficient to pay his costs, require sufficient security to be given for such costs, and may stay all proceedings until such security is given." The security may be required in an action by the official liquidator in the name of the company (Freehold Land, &c. Co. v. Spargo, W. N. 1868, 94, M. R.). See further, 2 Pract. 14th ed. 1055.

(c) By Companies Act, 1862, s. 85, "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 all further proceedings in any action, suit, or proceedings against the company, upon such terms as the Court thinks fit. . . ." (See Judicature Act, 1873, s. 24, sub-s. 5, ante, p. 176.) By s. 138, the Court has a similar power to stay proceedings against a company which is being wound up voluntarily. The application to stay must be made in the action of which a stay is desired, and may be made to a Judge in Chambers upon an affidavit of facts. It is usually granted ex parte, but a summons may be directed.

on the day of

19-.

19-, a petition to wind up the said defen

and the said petition is to be heard

3. I desire to obtain an order to stay all proceedings in this action until after the hearing of the said petition.

Sworn [&c., as usual].

This affidavit is filed on behalf of [the defendants].

8. Order thereon.

[Formal parts as usual.] Upon hearing [counsel] for the defendant company [or as the case may be] and reading the affidavit of; and the defendant company by their [solicitor] undertaking to abide by any order the Court or a Judge may hereafter make as to damages in case the Court or Judge shall hereafter be of opinion that, by reason of this order, the plaintiff shall have sustained any which the defendant company ought to pay It is ordered that all proceedings in this action be stayed until after the hearing of the winding-up petition presented by, on the - day of ——, 19—. Dated

9. Transfer of Action after Winding-up Order has been made:

[See ante, p. 206. The Companies Act, 1862, s. 87, provides that, after an order for winding-up has been made, no action or other proceeding against the company shall be commenced or proceeded with without leave of the Court.]

10. Writ of Summons in Action by Shareholder suing on behalf of himself and the other Shareholders of a Company.

[Describe the plaintiff in the title of the action and in the body of the writ, as:] A. B., on behalf of himself and all other the shareholders of the Company, Limited [stating the name of the company].

[The indorsement should show that the plaintiff sues in a representative capacity (d), thus:] The plaintiff's claim is on behalf of himself and all other the shareholders of the Company, Limited, against the defen

dants for

[&c., as usual].

(d) See R. S. C., Ord. III., r. 4, ante, p. 50.

11. Affidavit for leave to register Mortgage or Charge after expiration of 21 days, &c. (e).

In the High Court of Justice.

King's Bench Division.

In the matter of the Companies Acts, 1862 to 1900.

I, X. Y., of

And in the matter of

Company, Limited.

make oath and say as follows:

1. The above-named company is duly registered in this country under the above-mentioned Acts.

day of, 19-, the following mortgage [or charge]

2. On the was created by the said company, namely - [here describe its nature, e.g.] a mortgage in favour of on the uncalled capital of such company [or a floating charge in favour of on the undertaking of such company, or as the case may be, see Companies Act, 1900, s. 14]. [The said mortgage (or charge) is now produced and shown to me, marked A.]

3. The said mortgage [or charge] [is dated the

day of

19-,

but] has not been filed with the registrar of joint stock companies for registration pursuant to the Companies Act, 1900.

4. [Here state concisely, but clearly, the cause of the omission to register the mortgage or charge, showing that it arose from accident, inadvertence, or some other sufficient cause (e).]

5. I desire on behalf of

an order extending the time for registration

of the said mortgage [or charge] under the said Act.

6. The position of creditors or shareholders of the said company will not be prejudiced by reason of such order being made (e).

Sworn [&c., as usual].

This affidavit is filed on behalf of

[The above form of affidavit can be easily modified to meet cases where rectification of an omission or misstatement is desired (e).]

(e) By the Companies Act, 1900, s. 15, “A Judge of the High Court, on being satisfied that the omission to register a mortgage or charge within the time required by this Act, or the omission or misstatement of any particular with respect to any such mortgage or charge, was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested, and on such terms and conditions as seem to the Judge just and expedient, order that the time for registration be extended, or, as the case may be, that the omission or misstatement be rectified." As to the mortgages and charges to which this section relates, see ss. 14, 30, of the Act. An application for an order under s. 15 should be made to the Judge in Chambers ex parte on an affidavit of facts. The Judge may direct a summons.