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Form 606.

This summons was taken out by A. of

sex, solicitors for the applicant. [Except

in the county of Middlewhere the application is ex

parte the summons should be duly addressed, and a note subjoined as

follows:]

To C. of

[or when a schedule is used To the several persons

named in the 1st column of the schedule hereto.]

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NOTE. If you do not attend, either in person or by your solicitor, at the time and place above-mentioned, such order will be made, and such proceedings taken, as the judge shall think just and expedient.

Section 138 of the Act is as follows:

Where a company is being wound up voluntarily, the liquidators or any contributory of the company may apply to the court in England, Ireland, or Scotland, or to the Lord Ordinary on the Bills in Scotland in time of vacation; to determine any question arising in the matter of such winding-up, or to exercise all or any of the powers which the court might exercise if the company were being wound up by the court, and the court or Lord Ordinary in the case aforesaid, if satisfied that the determination of such question, or the required exercise of power, will be just and beneficial, may accede wholly or partially to such application, on such terms, and subject to such conditions as the court thinks fit, or it may make such other order, interlocutor or decree on such application as the court thinks just.

This section is frequently made use of in a voluntary winding up. It will be observed that only the liquidator or a contributory can apply: a creditor cannot. See Poole Firebrick Co., 17 Eq. 268, Buckley, 193. Applications under this section are to be by petition or motion, or, if the judge shall so direet, by summons at chambers. Rule 51.

Applications are occasionally made by petition. See In re Anglesea Co., 2 Eq.
379; Re Australian Co., W. N. 1877, 37; Form 603, supra, p. 482. But they are
generally made by motion or summons. In the following recent cases the applica-
tion was by motion: In re Horbury, &c., Co., 11 C. Div. 109; In re Gold Co., 12
C. Div. 77; Re Union Bank of Kingston-upon-Hull, 13 C. D. 808. See also
supra, p. 485.

In the following case the application was by summons: In re Whitehouse, 9
C. D. 595, and see Forms 512, 541, 587, 589, 593.

For notice of motion see supra, p. 483, and for form of summons, Ibid.

The summons must be an originating summons, and must accordingly be filed in the writ department of the central office.

Where service is required, the copy to be served must be stamped with a stamp of such office, indicating the filing thereof. The duplicate must be written on paper of the same description and size as that on which proceedings are printed. Except where the application is ex parte, the summons must be served seven clear days before the return thereof. The court fee on sealing the summons is 108., on sealing the duplicate 58., and on sealing duplicate for service 58. Order as to Court Fees of October, 1875. See further as to the practice in regard to originating summonses, Dan. Pr. 1050 et seq.; Dan. Forms, p. 468,

As to obtaining order giving general liberty to apply in a voluntary winding up, see note to Form 607, infra.

The following are some of the matters in regard to which applications are from time to time made under s. 138.

Actions and proceedings: The liquidator can take and defend legal proceedings in the name of the company under ss. 133 (7) & 95 of the Act, but occasionally, e.g., where the matter involved is considerable, he applies for the sanction of the court. Sometimes a contributory applies for liberty to take proceedings in the company's name.

Carrying on business: The liquidator can carry on the business of the company, so far as may be necessary for the beneficial winding up of the same without the

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sanction of the court, ss. 133 (7) & 95 of the Act. But occasionally, in important Form 606. cases, he applies for such sanction.

Borrowing: The liquidator can raise money upon the security of the assets, ss. 133 (7), 95, and the power is not uncommonly exercised, e.g., in order to pay off secured creditors, to provide funds to carry on the business, &c. Occasionally application is made to sanction the proceeding, as in a compulsory winding up. See supra, p. 379.

Delivery of books, papers, and property: Where a liquidator is unable to get possession of the books, papers, or other property of the company, he not uncommonly applies under ss. 100, 138, for an order for delivery. See supra, p. 375. In re Horbury Bridge Co., 11 C. Div. 109.

Restraining actions and proceedings, See supra, p. 476.
Settling the list of contributories. See supra, p. 473.
Rectifying the list of contributories. See supra, p. 474.

Making and enforcing calls. See supra, pp. 473.

Enforcing payment of debts due from contributories. See supra, p. 475. Liberty to declare and pay dividends to creditors and contributories. supra, p. 478.

Adjudication of disputed claims. See supra, p. 477.

Compromises. See supra, p. 480.

See

Service. Applications are sometimes made as to service out of the jurisdiction or substituted service. See supra, p. 419.

Examination and discovery under s. 115. Such applications are not uncommon; they are usually made by the liquidator, especially with a view to proceedings under s. 165. See supra, pp. 443, 452. In re Gold Co., 12 C. Div. 77.

Special examiner. Where persons are to be examined under s. 115, a special examiner is very commonly appointed. See supra, p. 444.

Taxation of costs. See supra, p. 481.

Inspection under s. 156 of the Act.

Applications for liberty to inspect the books and papers under this section, are not uncommon, see Form 512, supra. A special case must be made out, see Buckley, 279.

Proceedings against directors and others under s. 165, by no means uncommon, see In re Gold Co., 12 C. Div. 77, and Forms 544, et seq.

In regard to s. 161, sce infra, p. 299.

Adjusting the rights of contributories. Occasionally application is made to the court to determine the rights of contributories in the surplus assets. See In re Eclipse Gold Mining Co., 17 Eq. 491; and In re Anglesea Colliery Co., 2 Eq. 379, in which case the application was by petitions.

Unclaimed dividends. Sometimes before the final meeting is held, the liquidator pays any unclaimed dividends into court, and obtains an order as in Form 569.

Staying the winding up: Upon an application to the court under s. 138, the power given by s. 89 of staying proceedings in the winding up may be exercised. See further, supra, p. 299. The application is usually by petition. South Barrule Slate Quarry Company, 8 Eq. 688; Bog Mining Co., L. J. Notes of Cases, 1875, 48, and see supra, p. 300.

Upon the application of the above-named company by summons dated Form 607. the 7th of April, 1877, and upon hearing the solicitors for the appli- Order giving cants, and upon reading the London Gazette of the 10th of April, 1877, general liberty publishing notice of a general meeting of the members of the said comto apply. pany held on the 16th of March, 1877, at which it was resolved that the said company should be wound up voluntarily, and also appointing Messrs. L. & D. liquidators of the said company, and passing certain other special resolutions and notices of an extraordinary general meeting

Form 607. of the members of the said company held on the 6th of April, 1877, confirming such resolutions. IT IS ORDERED that the said liquidators or any contributories of the said company may from time to time apply to this court to determine any question arising in the winding up of the said company, and to exercise as respects the enforcing of calls or in respect of any other matter all or any of the powers which this court could or might exercise if the said company was being wound up by the said court: AND IT IS ORDERED that such proceedings be taken for the purpose of ascertaining and adjudicating upon the debts of and claims upon the said company as the judge shall direct. Argentine Tramways Co., Hall, V.-C., 17 App. 1877. A. 687.

Form 608.

apply.

An order giving liberty to apply as above, is sometimes made on the application of the liquidator. The object is to facilitate applications to the court by avoiding the necessity of taking out an originating summons, whenever application by summons has to be made. Where such an order has been made, application can be ina le by ordinary summons. Possibly there may be some doubt as to the jurisdiction to make the order. The following order goes still further, for it gives creditors liberty to apply.

Upon the application of the above-named company, &c., and upon Another order hearing the solicitors for the applicants, and upon reading the London giving general Gazette of the 4th of Jan. 1876, containing, &c. It is ordered that the liberty to said liquidators or any contributories or creditors of the said company may apply to this court to determine any question arising in the winding up of the said company, and to exercise as respects the enforcing of calls or in respect of any other matter all or any of the powers which the court could or might exercise if the said company was being wound up by the said court. And it is further ordered that an inquiry be forthwith made whether there is any debt of the said company remaining unpaid. London and Asiatic, &c., Co., Malins, V.-C., 12 Dec. 1876. B. 1960.

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Form 609.

Notice convening final meeting.

at

Notice is hereby given, that in pursuance of section 142 of the Companies Act, 1862, a general meeting of the members of the abovenamed company will be held at on day the of ——, o'clock in the afternoon, for the purpose of having an account laid before them showing the manner in which the winding up has been conducted, and the property of the company disposed of, and of hearing any explanation that may be given by the liquidator, and also of determining by extraordinary resolution the manner in which the books, accounts and documents of the company and of the liquidator thereof shall be disposed of.

Dated the day of

A. D., Liquidator.

See s. 142 of the Act as to the final meeting. The meeting must be convened Form 609. by advertisement as above in the Gazette one month at least before the meeting. And where the meeting is to dispose of the books, &c., notice to the same effect must also be given to the members of the company, by post or otherwise, as provided by the articles thereof, for under s. 155 of the Act, the books, &c., are to be disposed of as the company, by an extraordinary resolution, (See ss. 129, 139) directs.

The notice for insertion in the Gazette must be signed by the liquidator, and a duplicate must be verified by the statutory declaration of some person who will state that he was present on the day of, and saw [the liquidator] sign the notice hereto annexed, and that the signature set and subscribed to the said notice is the proper handwriting of the said and that the signature set and subscribed to the said notice as the attesting witness to the said signature is of the proper handwriting of the declarant.

At the meeting the liquidator will present the account referred to in the notice, and will give any requisite explanations; and resolutions will be passed for the adoption thereof, and as to the books, e.g.

1. That the account submitted to this meeting, and showing the manner in which the winding up has been conducted and the property of the company disposed of, be received and adopted.

2. That the books, accounts, and documents of the company, and of the liqui dator thereof, be retained by the said liquidator, he undertaking to destroy the same upon the dissolution of the company, or, handed over to the purchaser of the company's [leasehold property].

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To the Registrar of Joint-Stock Companies.

Form 610.

Notice to registrar of

I beg to inform you that a meeting of the above-named company was final meeting. duly held on the day of for the purpose of having an account laid before them showing the manner in which the winding up of the company has been conducted and the property of the company disposed of, and that the same was done accordingly.

Dated, &c.

Liquidator.

S. 143 of the Act requires the liquidator to make a return to the Registrar of Joint Stock Companies as above, and provides that on the expiration of three months from the expiration of the return, the company shall be deemed to be dissolved. Default in making the return subjects the liquidator to a penalty of 51. per day.

Where a company is wound up voluntarily, it is of great importance to all parties that it should be duly dissolved in manner before mentioned, for until dissolution it continues to exist, and accordingly forgotten liabilities may be discovered and disputes revived, and the conduct of the liquidator impeached. Hundreds of dissolutions take place every year.

When the company has been dissolved as aforesaid, the court will not make a winding-up order, even upon the petition of a creditor who has been excluded.

Pinto Silver Mining Co., 8 C. Div. 273; Westbourne Grove Drapery Co., W. N. Another case. 1878, 195. But in a case of fraud it might be possible to set aside the dissolution. London and Caledonian Co., 11 C. Div. 140.

Until the expiration of the three months, application can be made to the court, and a winding-up order may be made. Crookhaven Mining Co., 3 Eq. 69.

Form 611. Supervision order.

Form 612.

Another appointing liquidator.

WINDING UP UNDER SUPERVISION.

Supervision Orders.

UPON the petition, &c. This court doth order that the voluntary winding up of the said company be continued, but subject to the supervision of this court, and any of the proceedings under the said voluntary winding up may be adopted as the judge shall think fit: And the creditors, contributories and liquidators of the said company, and all other persons interested, are to be at liberty to apply to the judge at chambers as there may be occasion. And it is ordered that the costs of the petitioner and of the said company and liquidators of and relating to this petition, be taxed by the taxing master and paid out of the assets of the company.

Upon the petition of the Credit Foncier Limited, creditors of the above-named company, &c., This court doth order that the voluntary winding up of the above-named company be continued, but subject to the supervision of the court, and any of the proceedings in the voluntary winding up may be adopted as the judge shall think proper: And the respondent H. M. C., one of the present liquidators of the said company, by his counsel at bar, desiring to resign his office of liquidator : This court doth order that J. E. H. of, be appointed liquidator in the stead of the said H. M. C. and to act in conjunction with C. T. M. the continuing liquidator. And it is ordered that the petitioners and the said Hester & Co. Limited, and the liquidators thereof, and the respondents, the shareholders, be allowed their costs of and relating to this application, out of the assets of the company, such costs to be taxed by the taxing master, who is to allow to the respondents, shareholders, such costs as they might properly have incurred and would have incurred by employing one solicitor. The petitioners to be at liberty to appear before the judge as creditors in all proceedings relating to the winding up at the expense of Hester & Co. Limited. And it is ordered, that the retiring liquidator be at liberty to make any application in respect of his remuneration (if any), as such liquidator, as he may be advised. Hester & Co. Limited, Bacon, V.-C., 11 May, 1876. A. 815.

As to giving notice of winding-up order, see supra, p. 339.

Effect of Supervision Order.

Section 151 of the Act provides as follows:

Where an order is made for a winding up subject to the supervision of the court, the liquidators appointed to conduct such winding up may, subject to any restric

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