Very commonly the order is made on two petitions, thus:

Order on two

Upon the petition of R. W. S., of, a creditor of the above-named Form 288. company, on the 3rd day of April, 1876, preferred unto this Court, and upon the petition of E. P., of another creditor of the above-named petitions. company on the 12th day of April, 1876, preferred unto this Court, and upon hearing counsel for the respective petitioners for the above-named company, and for L. C. A., a creditor, and upon reading the said petitions respectively, an affidavit of the said R. W. S., filed the 6th of April, 1876, verifying the first-mentioned petition, and an affidavit of the said A. P., verifying the secondly-mentioned petition, the London Gazette, the Times newspaper, and the Standard newspaper, all of the 10th day of April, 1876, each containing an advertisement of the first-mentioned petition, and the London Gazette, &c., each containing au advertisement of the secondly-mentioned petition, an affidavit of R. W. S., filed the 24th day of April, 1876, an affidavit, &c., a joint affidavit of A. A. R. and J. C. W., filed, &c., and two several affidavits of the said L. C. A., filed respectively, &c. Let the B., &c., Co., Limited, be wound up by this Court under the provisions of the Companies Acts, 1862 and 1867, and let the petitioners respectively, and the said company, and the said L. C. A. be allowed their costs of or relating to the said petitions respectively, out of the assets of the said company, such costs to be taxed by the taxing-master. British Guardian Life Assurance Co., Hall, V.-C., 2nd May, 1876, A. 951.

Where two or more petitions have been presented and the subsequent petitioners had not notice of the presentation of the first, the usual course is to make one order on all, as above. Owen's Patent Wheel Co., 22 W. R. 151; W. N. 1873, 226. But each petition will be looked at separately on its own merits, and if no case is made must (unless in an exceptional case) be dismissed with costs. In re European Banking Co., 2 Eq. 521.

The presentation of a subsequent petition may be justifiable, e.g., where there is reason to believe that the first petition is collusive. In re Humber Iron Works Co., 2 Eq. 15; United Service Co., 7 Eq. 76. Where a second petition is presented, the second petitioner must allege and be prepared to make out an objection to the prior petition, e.g., collusion. In re Norton Iron Co., 26 W. R. 92. As to transfer of concurrent petitions, see infra, Form 292.

Upon the petition of H. & M. on the 31st Jan., 1879, preferred Form 289. [winding-up petition], and upon hearing counsel for the petitioners, and Order allowing for S., a cretitor, and upon reading the said petition, and it being alleged costs of second that an order dated 10 Feb., 1879, has been made for the compulsory petition. winding up of the said co., and upon reading the said order: This Court doth not think fit to make any order on this petition, but doth order that the costs of the said petrs., and of the said S. of this application be costs in the winding up of the said compy. Medium for sales and exchanges, Hall, V.-C., 14th Feb., 1879, B. 427.

Form 289.

As to costs of concurrent petitions, see supra. In some cases where a windingup order has been made on one petition, the costs of a second petition subsequently coming on will be allowed as in the above case, and in Re British and Foreign Gas Co., 13 W. N. 649; and Re Marron Bank Co., 38 L. T. 141; W. N. 1878, 12.

Sometimes special liberty, as in the following order, is given. In this case S. was the vendor of the company's brewery, and a large portion of the purchasemoney was still due.

Form 290.

Liberty to creditor to nominate liquidator.

Upon the petition of M. & M., contributories, &c. [usual winding-up order]. And let B., the trustee in bankruptcy of the said S., be at liberty to apply in Chambers for the appointment of an official liquidator of the said company: And [order as to costs]. Middlesex Brewery Co., Limd., M. R., 6th Dec., 1878, 2123 B.

Where a petition is presented a debenture holder very commonly brings an action and applies for a receiver. See supra, p. 234, as to appointing the same person receiver and liquidator. The following order is an example of the mode in which the rule is sometimes given effect to:

Form 291.

Special winding-up order.

Upon the petition of H., and upon hearing counsel for the petitioner and for the respondent, the C. Co., Ld., and for the plt., a creditor and debenture holder of the said co., and upon motion at the same time made unto this Court by counsel for the plt., and upon hearing counsel for the plt. and for the defts., and upon reading the said petition and the following evidence thereon, &c., and the following evidence on the said motion, namely, &c. Let co. be wound up, &c. And let a proper person or persons be appointed to receive the rents and profits of the lands, tenements, and hereditaments comprised in a certain indenture, dated, &c., in the writ mentioned, and of all the other lands, estates, buildings, and immovable property of the deft. company, and also all the movable estates and effects of the deft. company. And let such receiver or receivers be the same person or persons as shall be appointed liquidator or liquidators in the said winding up, and let the plantiff in the said action be at liberty to propose a person or persons to be such liquidator or liquidators accordingly. And let all further proceedings in the above action be stayed except for the purposes of this order. And let plaintiff add his costs of said action to his security in said writ mentioned, and let the costs of defts. be costs under the winding up. And let the petr. and the respondents and the said T. R. be allowed their costs of and relating to the said petition out of the assets of the said co., to be taxed, &c. Canada, &c., Co., Limited, M. R., 11th November, 1876, A. 1774.

The above order was made in the matter of the company and of the Acts of 1862 and 1867, and of an action of T. Robinson on behalf of himself and all other the debenture holders of the company v. the company and the trustees for the debenture holders. See supra, p. 329.

Transfer of Petitions.

sent.

Upon the petition of H. this day preferred unto this Court, and the Form 292. solicitors for the above-named company, parties having subscribed the Order transsaid petition, signifying their consent to the prayer thereof. Let the ferring petiabove-mentioned matters marked for the Master of the Rolls be trans- tion by conferred to the Vice-Chancellor Sir Charles Hall, and let 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 Jud. Act the Court of Appeal has no jurisdiction to order a transfer. In re Boyd's Trusts, 1 C. Div. 12. Transfers are now made under Ord. LI., Rule 1, by the Lord Chancellor. See Memorandum in 1 C. Div. 41, as to the practice.

Where all parties consent, the application can be made by petition subscribed by all and delivered to the secretary of the L. C.; but "if all parties will not consent, the application must be by motion to the L. C." The secretary will inform the party desirous of moving where and when he can move, and the notice of motion will be framed accordingly.

The notice of motion will be as follows:

Title: as in Form 268.

day, the

Notice of

Take notice that the Lord High Chancellor of Great Britain will be Form 293 moved on day of at- or so soon thereafter as counsel can be heard, by Mr.- as counsel for the petitioners in these motion for matters, [or as the case may be] that these matters may be transferred to the Vice-Chancellor [Hall], and when so transferred may be considered as matters originally marked for the V.-C. [Hall].

Dated, &c.

As to transfer of actions under Order LI., Rule 2 A, see infra, Form 493. That rule 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.

transfer.

Reference to County Court.

Upon, &c. [usual winding-up order]: And it is ordered that all Form 294. further proceedings in the winding-up of the said company be carried Order. on in the County Court of Suffolk, holden at Ipswich. Ipswich Public Hall Co., Jessel, M. R., 16 Jan., 1875, B. 59.

By Section 41 of the Companies Act, 1867, the Chancery Division may, upon making an order for winding up a company, direct all subsequent proceedings to be had in a County Court; and by Section 42 may transfer the winding-up from one County Court to another.

The reference to the County Court is sometimes made at the same time as the order to wind up, and sometimes upon an application subsequently made at Chambers. London and Westminster, &c., Co., 17 L. T., N. S. 559. The former is the usual course now.

Form 295.

Another.

Upon the petition, &c. [winding-up order]: And costs to be taxed and paid out of the assets of the said co., and let all subsequent proceedings herein other than such taxation of costs be had in the County Court of Glamorganshire holden at Swansea. Morriston's Patent, &c., Co., M. R., 27 Jan., 1877, 189 B.

Form 296.

Notice of motion on summons for the appoint

ment of a provisional liquidator.

PROVISIONAL OFFICIAL LIQUIDATORS.

Formal parts: see Forms 313 & 314.

On the part of A., the petitioner in these matters [or, of the above named company], that B., of or some other person may be appointed provisional official liquidator of the above named [or said] com

pany.

The Court is empowered at any time after the presentation of the petition, and before the first appointment of liquidators, to appoint provisionally an official liquidator. S. 85 of the Act.

The appointment may be made on application by summons. See Rule 15.

But the application is very commonly made by motion, especially (a) where the company is petitioner, in which case the application is ex parte, and (b) where the assets are in danger, or the matter is for some other reason pressing.

It is usual to apply for the appointment of some person by name, and the application, whether by motion or summons, should be supported by an affidavit as to the circumstances which render the appointment desirable, and as to the fitness of the proposed liquidator.

In a pressing case the order will be made subject to the production of an affidavit of fitness to the registrar.

If the company makes, consents to, or is shown not to oppose, the application, the appointment is almost a matter of course, but if the company opposes, special circumstances must be shown, e.g., insolvency, or danger to assets. Clifoden Benefit Building Society, 3 Ch. 462; Emmerson's case, 2 Eq. 231; Marseilles Extension Co., W. N. 1867, 68; Hammersmith Town Hall Co., 6 C. D. 112.

The order usually directs the liquidator to give security by a certain day, but sometimes an undertaking is given by the proposed liquidator, or by the petitioner or his solicitor, that the liquidator shall give security forthwith, or within say 14 days. Where the application is not made by the company, notice of motion or summons should be served on the company. If the matter is urgent, liberty to serve short notice of motion can be obtained. Occasionally the provisional liquidator is appointed without being required to give security. This is allowed by Rule 15. Sometimes the appointment is made at the same time as the winding-up order. The Court may, by the order appointing a provisional official liquidator, limit and

restrict his powers. Sec. 96 of the Act of 1862. This power is generally exercised. Form 296. See Forms 298 et seq., infra.

If the provisional liquidator is to carry on the company's business, evidence should be forthcoming to show that it is desirable so to do. The fact that there are contracts on hand, or that the company's difficulties are only temporary, and that serious loss would be caused by stopping the business, or that the goodwill is valuable, and would be lost by stopping, afford ground for authorising the liq. to carry on the business, at any rate to some extent.

If the provisional liquidator is authorised to carry on the business, it may be desirable to obtain liberty to open an account with a local bank where the business is in the country. See Form 356, infra.

The rules as to official liquidators contained in the Gen. Order of 11 Nov., 1862, apply to provisional liquidators. Rule 59.

Accordingly as to giving security, see infra, Form 323, et seq.; as to accounts see infra, Form 303 et seq. and 333 et seq: as to remuneration see infra, Form 347 et seq.; as to discharge see infra, Form 306 et seq.

Provisional liquidators frequently make applications to the Court, e.g., to authorise sales, to restrain actions or proceedings against the company or its assets, to authorise the borrowing of money to carry on the business, &c.

and

both of

Order on

Upon the application of creditors of Form 297. the above-named company, the petitioners in the petition presented in these matters on the 1st day of September, 1876, by summons dated the summons 8th day of September, 1876, and upon hearing the solicitors for the appointing provisional applicants and for the said company, and upon reading the said petition liquidator. 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. Let W. M., of, public accountant, be appointed provisionally official liquidator of the above-named company. And Let the said W. M., on or before the 9th of November, 1876, give security, to be approved by the judge. And Let the said W. M., 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 Let 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 Sept., 1876, B. 1611.

[Appointment of provisional official liquidator.] And this Court doth Form 298 hereby limit and restrict the powers of the said J. C. to the following Order restrict acts (that is to say) to getting in and protecting the assets of the said ing powers. company until further order. The General Sewage and Manure Co.,

Limited, M. R., 2 August, 1876, A. 1494.

Upon motion this day made unto this Court by counsel for the above Form 299. named company and upon reading the petition of the above named co. Order on