Form 586. service upon them respectively of the order to be made hereon, the several sums of money set opposite to their respective names in the 7th column of the schedule hereto, being the amounts due from the said several persons respectively in respect of a call ofl. per share made by the said A. B. as such liquidator as aforesaid on the - day of And that the said several persons may be ordered to pay the costs of this application.

Form 587.

Order enforcing call made by liq.

THE SCHEDULE.

[As in Form 583, with an additional column showing the amount due.]

Calls made in a voluntary winding-up can be enforced by aetion brought by the liquidator, in the name of the company, against the contributories, or by proceeding under s. 138 of the Act of 1862. The latter is the best course, and is generally adopted. In re Whitehouse & Co., 9 C. D. 595.

The application should be by motion or summons. See infra, p. 483 et seq.

Upon the application of E., the liq. of co., by summons dated 2 June, 1877, and upon reading, &c., Let the several persons named in the 2nd column of the schedule to this order, being contributories of said co., on or before 20 July, 1877, or within 4 days after service of this order, pay to E. the liq. of said co. at his office, No. —, &c., the several sums set opposite their respective names in the 6th column of the said schedule hereto : such sums being the amounts due from the said several persons respectively in respect of a call of 27. 10s. Od. per share made by the said liq. And also let the said pay to the said E. the sum of one guinea costs. 586.] Sheffield Purchasers Co., Malins, V.-C., 2 See also Forms 588 & 589 infra.

& resply. each [Schedule as in Form July, 1877. B. 1185.

Orders under s. 101.

Orders are frequently made under s. 101 [supra, p. 398] on the application of the liquidator for the payment of monies due in respect of calls made prior to the winding up, or other monies owing by the contributories. Not uncommonly the order includes calls made before and after the commencement of the winding up See Form 589. As to set-off, see Whitehouse & Co., 9 C. D. 595; Gill's case, 12 C. D. 755.

Form 588.

Order to pay calls made

Upon the application of B. the liq. of the above-named co., and no one appearing for the several persons mentioned in the 2nd column of the schedule hereto although duly summoned as appears by the affidavit before winding of P. filed 16 January, 1877, and upon reading, &c., Let the several persons named in the 1st column of the said schedule being resply. contributories of the said co. within 4 days after service of this order on them respectively, pay to the said B., the liquidator of the said co., at the office of Messrs. W. & Co., situate, &c., the sums of money set oppo

up.

site their respective names in the 8th column of the said schedule, such Form 588. sums being the amounts due from the said several persons respectively in respect of the calls of 6s. per share made on 10 July, 1873, and of 4s. per share made on 31 October, 1876, as mentioned in the 5th & 6th columns of the said schedule, together with interest thereon at the rate of 5 p. c. p. a. in respect of the first call from 10 July, 1873, and in respect of the second call from 31 Oct. 1876, resply. to the day of payment and for the costs of this application and consequent thereon (which have been ascertained in chambers) as mentioned in the 7th column of the said schedule.

British Marine Insurance Co., Malins, V.-C., 17 Jan. 1877. A. 105.

Mr.

:

Upon the application of L. the liq. appointed in the voluntary Form 589. winding-up of the above co., and upon hearing the solicitors for the Another. applicant and for J. H. and T. F., and upon reading an affidavit, &c., and an affidavit of filed 7 Dec. 1878, of service of notice of this application Let the several persons named in the 2nd column of the schedule to this order being respectively contributories of the said co. pay to the said L. as such liquidator as aforesaid at the office of his solicitor at, on or before the 23rd day of Dec. 1878, or subsequently within 4 days after service upon them respectively of this order the several sums of money set opposite to their respective names in the 9th column of the schedule hereto, such sums being the amounts due from the said several persons named in the 2nd column of the said schedule in respect of calls made upon the members of the said co. previously to the commencement of the winding up thereof, and of a call of 58. per share made by the said L. as such liquidator as aforesaid on the 26th of April, 1878: And it is ordered that each of the said several persons do also pay to the said L. as such liquidator as aforesaid

Form 589. at the time and place aforesaid a further sum of 88. 8d. for his or her proportion of the costs of this application.

Wednesbury Newspaper Co., M. R., 9 Dec. 1878. 2255 B.

Form 590.

Notice of

motion to restrain distress.

Restraining and staying actions, &c.

Formal parts: see infra, Form 605.

On the part of of the liquidator acting in the voluntary winding-up of the above-named company that of may be restrained from further proceeding with the distress levied by him on the goods of the said company and from levying any other distress on the goods of the said company in respect of any rent which accrued due to him from the said company before the day of And that the said

may be ordered to pay the costs of this application.

Where a compulsory or supervision order has been made no action or proceeding can be proceeded with or commenced against the company except with the leave of the court. See s. 87 of the Act, supra, p. 431. But this section does not apply to a purely voluntary winding up.

However, it was well settled before the Judicature Act, 1873, that where a voluntary winding up was in progress the court would in general, under ss. 138 and 85 of the Act of 1862, restrain actions and proceedings against the company, the plaintiff being permitted to add his costs to his debt and prove for the amount. In re Poole Firebrick Co., 17 Eq. 268; Buckley, 192.

And the Judicature Act has not altered the practice except that where the action is pending in the High Court the application must be to stay further proceedings, and should be made to the Division in which the action or proceeding is pending. See supra, p. 424. Walker v. Banagher Distillery Co., 1 Q. B. D. 129; Rose v. Gardden Lodge Co., 3 Q. B. D. 235; In re Artistic Colour Co., 14 C. D. 502. With the exception aforesaid the application to restrain should be made to the Chancery Division by motion or notice, see infra, Form 605.

Where the plaintiff has notice of the voluntary winding up, and after an offer to allow him to prove for his debt and costs, proceeds, the court in staying the action may decline to allow him to add to his debt the costs of appearing upon the application to stay. Rose v. Gardden Lodge Co., 3 Q. B. D. 235.

And where the action is brought after notice of the winding up, the plaintiff, except in special circumstances, will not be allowed to add the costs to his debt,

and may be ordered to pay the costs of the action and of the application to restrain Form 590. or stay. East Kent Shipping Co., W. L. T. 748; Buckley, 192.

In a voluntary as in a compulsory winding up certain actions and proceedings (e.g., a foreclosure action) will be allowed to go on, see supra, p. 432, and Buckley, 193, 202.

Creditors.

Title: see supra, Form 583.

day of

Notice is hereby given that the creditors of the above-named com- Form 591. pany are required on or before the to send their Notice to names and addresses and the particulars of their debts or claims, and creditors. the names and addresses of their solicitors, if any, to A. of the liquidator of the said company, and, if so required, by notice in writing from the said liquidator, are by their solicitors to come in and prove their said debts or claims at such time and place as shall be specified in such notice, or in default thereof they will be excluded from the benefit of any distribution made before such debts are proved.

Dated this

day of

B. of

Solicitor to the above-named
liquidator.

Immediately after his appointment the liquidator should advertise for creditors as above. Sometimes the notice is signed by the liquidator instead of his solicitor, and in such case the word "undersigned" will be inserted in the notice before the name of the liquidator and the signature modified accordingly. The notice should be advertised two or three times in newspapers circulating in the district where the companies' office is situate.

The court generally allows about six weeks, and a voluntary liquidator should allow the same. As regards creditors abroad a longer period is sometimes allowed. The liquidator will investigate the claims sent in, and ascertain so far as he is able which of the debts and claims are justly due from the company. If he is not satisfied as to any claim, he should either endeavour to effect a compromise and get it properly sanctioned [infra, p. 480], or he can leave the claimant to bring an action, or he can apply to the court to adjudicate on the claim. The last mentioned is the course very commonly adopted, and sometimes one applicatiou is made as to several claims.

Formal parts: see infra, Form 606.

On the part of A. of, the liquidator of the above-named com- Form 592. pany, that it may be determined whether the claim against the said Summons for company of B. of [or of the several persons whose names and adjudication addresses are set forth in the 2nd and 3rd columns of the schedule hereto] ought or ought not to be allowed by the applicant.

The proceeding on the summons will be similar to that upon a disputed claim in a compulsory winding up.

of disputed

claims.

Form 593.

Order for inquiry as to creditors of company.

Upon the application of the liqs. of the above-named co. by summons, dated 19th March, 1873, and upon hearing the solicitor for the liquidators and reading the affidavit of C. filed, &c. : Let an inquiry be made what are the debts of the said co., and the said judge doth hereby fix the 1st of September, 1873, as the day on or before which the creditors of the said co. are to send their names and addresses and the particulars of their debts or claims and the names and addresses of their solicitors (if any) to Mr. S. of, London, the solicitor for the said liquidators of the said co., and let such creditors, if so required by notice in writing from the said liquidators by their solicitors, come in and prove their said debts or claims at the chambers of the said judge at such time as shall be specified in such notice; and order that in default thereof such creditors be excluded from the benefit of any distribution made before such debts are proved: And order that for the purpose of carrying out this order such advertisements be forthwith issued in such newspapers as the judge shall direct. Eclipse Gold Mining Co. Ld., Malins, V.-C., 27 Mar. 1873. 3038 A.

In some cases, e.g. where there is likely to be a large number of disputed claims, it is considered desirable to obtain an order as above. See also Forms 607 and 608 infra.

By this means the liquidator is relieved from much responsibility, and the winding up may be expedited. The proceedings on such an order will be similar to those in a compulsory winding up, and when the chief clerk has made his certificate, the liquidator can declare and pay dividends and proceed with the winding up either with or without further application to the court.

Form 594.

Declaration of dividend.

Dividends to Creditors.

Title: see supra, p. 583.

I, — of —, the liquidator of the above-named company, do hereby declare a dividend at the rate of shillings in the pound upon the amount of the respective debts of the creditors of the said company whose names and the amount of whose debts are set forth in the schedule hereto.

Dated, &c.

SCHEDULE.

Liquidator.

When the liquidator has in hand sufficient funds, and the list of debts and claims has been settled or nearly settled, he will declare a dividend to be paid to the creditors whose claims have been allowed. In determining the amount, he will see that he retains funds or assets sufficient to cover all probable costs and expenses of the winding up, and to pay a like dividend on all outstanding claims. The liquidator will declare the dividend by instrument in writing, which may be as above.

Sometimes the liquidator obtains the sanction of the court to his declaring a dividend. See Form 445.

A dividend having been declared, notice will be given to the creditors and payment made accordingly.