Restraining Proceedings. Section 85 of the Act of 1862 provides that, "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 thinks fit." And see s. 163, infra, p. 432. Before the Judicature Act it was the practice where a winding-up petition had been presented to apply to the judge to whom it was assigned to restrain [under s. 85 above] any actions or proceedings against the company wheresoever pending. The application was made by motion ex parte on behalf of the company, or of a creditor or contributory, and it was well settled that upon such an application an injunction would be granted until the hearing of the petition. Re London & Suburban Bank, 19 W. R. 950. But sec. 24, subsec. (5) of the Judicature Act, 1875, provides 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. It was for some time unsettled whether this enactment did or did not deprive the judge to whom a winding-up petition had been assigned of the power to restrain actions and proceedings pending in other Divisions of the High Court. However, since the decisions in Re People's Garden Co., 1 C. D. 44; Walker v. Banagher Distillery Co., 1 Q. B. D. 129; Garbutt v. Farcus, 1 C. Div. 155; South of France Syndicate, W. N. 1877, 205; 26 W. R. 870; it was generally admitted that the enactment had this effect so far as regarded proceedings before judgment. And accordingly it became usual in such cases to apply for an order to stay to the Division in which the action or proceeding was pending. But it was very commonly considered that the enactment did not prevent the judge from restraining a person who had obtained judgment against the company in another Division of the High Court from issuing execution thereon, nor from restraining the sheriff from selling under any execution issued upon any such judgment. The in Perkins Beach Co., 7 C. D. 371, the goods of the company had been fa., and Bacon, V.-C., restrained the sheriff from selling and the from proceeding further with his judgment. Parte The Railway Steel & Plant Co., 8 C. D. 183, Hall, V.-C., Restraining Proceedings. Section 85 of the Act of 1862 provides that, "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 thinks fit." And see s. 163, infra, p. 432. Before the Judicature Act it was the practice where a winding-up petition had been presented to apply to the judge to whom it was assigned to restrain [under s. 85 above] any actions or proceedings against the company wheresoever pending. The application was made by motion ex parte on behalf of the company, or of a creditor or contributory, and it was well settled that upon such an application an injunction would be granted until the hearing of the petition. Re London & Suburban Bank, 19 W. R. 950. But sec. 24, subsec. (5) of the Judicature Act, 1875, provides 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. It was for some time unsettled whether this enactment did or did not deprive the judge to whom a winding-up petition had been assigned of the power to restrain actions and proceedings pending in other Divisions of the High Court. However, since the decisions in Re People's Garden Co., 1 C. D. 44; Walker v. Banagher Distillery Co., 1 Q. B. D. 129; Garbutt v. Farcus, 1 C. Div. 155; South of France Syndicate, W. N. 1877, 205; 26 W. R. 870 ; it was generally admitted that the enactment had this effect so far as regarded proceedings before judgment. And accordingly it became usual in such cases to apply for an order to stay to the Division in which the action or proceeding was pending. But it was very commonly considered that the enactment did not prevent the judge from restraining a person who had obtained judgment against the company in another Division of the High Court from issuing execution thereon, nor from restraining the sheriff from selling under any execution issued upon any such judgment. Thus in Re Perkins Beach Co., 7 C. D. 371, the goods of the company had been seised under a fi. fa., and Bacon, V.-C., restrained the sheriff from selling and the execution creditor from proceeding further with his judgment. So, too, in Ex parte The Railway Steel & Plant Co., 8 C. D. 183, Hall, V.-C., restrained the sheriff from selling under a fi. fa. till the hearing of the petition. In each of these cases the fi. fa. had been issued on a judgment obtained in another Division of the High Court. See also Forms 481 et seq., infra, from which it appears that Bacon, V.-C., and the Master of the Rolls have also made such orders. Moreover, the Court of Appeal in Re Stanhope Silkstone Collieries. 11 C. Div. 160, restrained a judgment-creditor from taking further proceedings under a garnishee order obtained in an action pending in one of the Common Law Divisions. See the order, Form 482, infra. However, in Re Artistic Colour Printing Co., 14 C. D. 502, the Master of the Rolls held that this mode of proceeding is wrong, and that having regard to s. 24, subsec. 5, of the Judicature Act, 1873, the application to stop execution or sale ought to be made to the Division in which the action or proceeding is pending. And it is submitted that this is clearly right. See also Wright v. Redgrave, 11 C. Div. 24. Where, therefore, it is desired to stop any action or proceeding pending in the High Court (including executions) the proper course is to apply by motion ex parte to the Division in which the action or proceeding is pending, and the Court following the practice settled in Re The London & Suburban Bank, ubi supra, will, upon the usual undertaking as to damages being given, stay further proceedings until the hearing of the petition or further order. Masbach v. Anderson, 26 W. R. 100; Rose & Co. v. Gardden Lodge Coal Co., 3 Q. B. D. 235; Lindley, Add. 1275. In all other cases, e.g., in cases of actions in foreign courts, or in the inferior courts, or of distress or sales, application should (under s. 85 above) be made by motion ex parte to the judge to whom the petition is assigned, for an injunction to restrain the proceeding until the hearing of the petition. See Forms 375, et seq., infra. The application to stay or restrain (as the case may be) should be supported by an affidavit as to the facts, and if the application is made in the name of the company some responsible person must give the usual undertaking as to damages. Westminster Assoc. v. Upward, 24 Sol. J. 690. S. 85 only applies prior to the winding-up order, but after the order has been made actions and proceedings (other than actions and proceedings in the High Court) commenced or taken in violation of s. 87 of the Act of 1862 [see infra, p. 431,] will be restrained upon the application of the official liquidator or some other person interested. And as to actions and proceedings in the High Court, application can be made therein to stay proceedings, or an order for transfer can be obtained under Order II. rule 2 a. [infra, Form 493, et seq.], and application may then be made to stay proceedings or otherwise as may be thought fit. As to when leave to proceed will be given under s. 87, see infra, Form 496, et seq. It may here be mentioned that some of the judges have not altogether abandoned the practice of restraining (under s. 85) proceedings in the High Court. See order of Hall, V.-C., restraining plaintiffs in action in C. P. D., Re South Staffordshire Colliery Co., 30 Jan., 1879, B. 192, and order of Malins, V.-C., restraining plaintiffs in action commenced in District Registry of Stafford, Stanhope Silkstone Co., 3 Feb. 1879. B. 194. Court action. Upon motion &c. by counsel, for above-named co., the pets. &c., and Form 475. for S. prov. off. liq., &c., and the said S. by his counsel undertaking to Order restrainabide by any order this Court may make as to damages in case the Court ing County shall hereafter be of opinion that the N. Co. has sustained any by reason of this order which the said pets. ought to pay: Let the N. Co. be restrained until the hearing of the said petition or the further order of this Court from taking any further proceedings in the action by them. against the said pets. in the County Court of Lancashire, holden at Oldham, in the county of L. Derbyshire Wagon Co., M. R., 12 July 1879. Upon motion. &c., for the liq. of co., &c., Order that the high bailiff of Form 476. the County Court of Yorkshire holden at K. do forthwith withdraw from County Court execution restrained. Form 476. the premises of the co. entered upon by him pursuant to a warrant of execution directed to him and issuing out of the Shoreditch County Court of Middlesex holden at, &c., under a judgment obtained by B. of in an action commenced by him against the said co. as in the said affidavit of C. mentioned: And order that the said high bailiff do deliver up the possession of the said premises to the said liq.: And order that the said action be transferred from the said Shoreditch County Court, &c., to the said V.-C. Hull Central Drapery Co., Hall, V. C., 5 Ap. 1879. A. 866. Form 477. Order restraining actions by reference to schedule. 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 Yorkshire Civil Service Supply Association, Limited, Malins, V.-C., 17 May, 1876. B. 800. So far as the above order purported to restrain actions iu the High Court it was ultra vires. See supra, p. 425. Form 478. Order of Upon hearing counsel for the D. &c. Co. Limited, and for S. the prov. liq., and upon reading the affidavits of G., and the said liq. by judge of Q. B. his counsel undertaking to abide by any order this Court may make as Div. staying to damages in case the Court or a judge should hereafter be of opinion that the plaintiff in this action shall have sustained any by reason of this order which the said S. ought to pay, Let all further proceedings in proceedings. |