Arbitrations.

shall be borne and paid by the Companies in equal shares, and in other respects the Companies shall bear their own respective costs.

29. Submission to arbitration to be made a rule of court.-The submission to any arbitration in accordance with this act may at any time be made a rule of any of Her Majesty's superior courts of record at Westminster, or, as the case may be, at Dublin, on the application of any party interested; and the court may remit the matter to the arbitrator, or to the arbitrators, or to the umpire, with any directions the court think fit.

73. Provisions of 22 & 23 Vict. c. 59, to apply.-All the provisions of "The Railway Companies Arbitration Act, 1859," shall be deemed to apply to arbitrations between companies and persons in pursuance of this act; and in the construction of such provisions "the companies" shall be deemed to include companies authorized by this act to refer disputes to arbitration.

PART IV.

WINDING UP OF COMPANIES AND ASSOCIATIONS UNDER THIS ACT.

Preliminary.

74. Meaning of contributory.-The term "contributory" (1) shall mean every person liable to contribute to the assets of a company under this act, in the event of the same being wound up: it shall also, in all proceedings for determining the persons who are to be deemed contributories, and in all proceedings prior to the final determination of such persons, include any person alleged to be a contributory.

(1) The term "contributory."]-This is a very vague definition, "Every person liable to contribute," leaves still open the question who is liable. How disputable a point this is will be seen by reference to the subjoined "Digest of Decisions," title WINDING-UP, sub-head Contributory, where the cases are collected, and therefore they are not repeated here.

75. Nature of liability of contributory.--The liability of any person to contribute to the assets of a company under this act in the event of the same being wound up, shall be deemed to create a debt (in

Part IV. Winding-up.

England and Ireland of the nature of a specialty) accruing due from such person at the time when his liability commenced, but payable at the time or respective times when calls are made as hereinafter mentioned for enforcing such liability; and it shall be lawful in the case of the bankruptcy of any contributory to prove against his estate the estimated value of his liability to future calls, as well as calls already made.

76. Contributories in case of death.-If any contributory dies either before or after he has been placed on the list of contributories hereinafter mentioned, his personal representatives, heirs, and devisees shall be liable in a due course of administration to contribute to the assets of the company in discharge of the liability of such deceased contributory, and such personal representatives, heirs, and devisees shall be deemed to be contributories accordingly.(')

(1) Shall be deemed to be contributories accordingly.]—But only to the extent of the assets, in the case of personal representatives; and in that of heirs and devisees, to the extent of the interest they take from the deceased member.

77. Contributories in case of bankruptcy.-If any contributory becomes bankrupt, either before or after he has been placed on the list of contributories, his assignees shall be deemed to represent such bankrupt for all the purposes of the winding up, and shall be deemed to be contributories accordingly, and may be called upon to admit to proof against the estate of such bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any moneys due from such bankrupt in respect of his liability to contribute to the assets of the company being wound up; and for the purposes of this section any person who may have taken the benefit of any act for the relief of insolvent debtors before the eleventh day of October one thousand eight hundred and sixty-one shall be deemed to have become bankrupt.

78. Contributories in case of marriage.—If any female contributory marries, either before or after she has been placed on the list of contributories, her husband shall during the continuance of the marriage be liable to contribute to the assets of the company the same sum as she would have been liable to contribute if she had not married, and he shall be deemed to be a contributory accordingly.(')

Winding-up by Court.

(1) He shall be deemed to be a contributory accordingly.] -In Ex parte Luard (1 De G. F. & J. 533), on marriage, shares belonging to the wife were settled to her separate use; but no notice of the marriage was given to the Company, and the shares remained in her former name. It was held on appeal that the husband was a contributory, and liable for the calls.

Winding up by Court.

79. Circumstances under which company may be wound up by court. -A company under this act (1) may be wound up by the court as hereinafter defined, under the following circumstances; (that is to say,) (1.) Whenever the company has passed a special resolution requiring the company to be wound up by the court:

(2.) Whenever the company does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year:

(3.) Whenever the members are reduced in number to less than

seven:

(4.) Whenever the company are unable to pay its debts: (2)

(5.) Whenever the court is of opinion that it is just and equitable(3)

that the company should be wound up.

(1) A Company under this Act.]-The "Industrial and Provident Societies Act, 1862," sect. 17, enacts that every society registered under that act may be wound up, by the court or voluntarily, in the same manner as any Company may be wound up under any act for winding up Companies. Consequently any such society may be wound

up under this act.

(2) Whenever the Company is unable to pay its debts.]— There is much difficulty in the practical application of this provision, in spite of the four definitions of inability contained in the next section. Mere non-payment of a debt after demand is restricted to a debt exceeding 50%. due to one creditor, so that a Company owing a solitary debt of 501. 1s. may be summarily called upon by its one creditor to pay or be wound up, whilst another Company, owing 10,000l. in several sums, no one of which amounts to 50l., will escape with impunity. The fourth definition, "when

L

Part IV. Winding-up.

ever it is proved to the satisfaction of the court that the Company is unable to pay its debts," will to some extent supply the defect, if the court should, as it ought, accept the fact that it does not pay as the best proof that it is unable to pay.

In Ex parte Owen (4 L. T. Rep. N. S., 684), the Company was held not to be regarded as unable to pay its debts, simply because it has not paid a debt which it disputes.

(3) Whenever the court is of opinion that it is just and equitable.]-Several cases showing what have or have not been deemed to be sufficient grounds for a winding-up order will be found in the "Digest of Decisions” at the end of the volume; therefore they are not repeated here.

80. Company when deemed unable to pay its debts.-A company under this act shall be deemed to be unable to pay its debts, (1.) Whenever a creditor, by assignment or otherwise, to whom the

company is indebted, at law or in equity, in a sum exceeding fifty pounds then due, has served on the company, by leaving the same at their registered office, a demand under his hand requiring the company to pay the sum so due, and the company has for the space of three weeks succeeding the service of such demand, neglected to pay such sum, or to secure or compound for the same to the reasonable satisfaction of the creditor:

(2.) Whenever, in England and Ireland, execution or other process issued on a judgment, decree, or order obtained in any court in favour of any creditor, at law or in equity, in any proceeding instituted by such creditor against the company, is returned unsatisfied in whole or in part:

(3.) Whenever, in Scotland, the induciæ of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest have expired without payment being made:

(4.) Whenever it is proved to the satisfaction of the court that the company is unable to pay its debts.

81. Definition of "the court." The expression "the court as

Winding-up by Court.

used in this part of this act, shall mean the following authorities; (that is to say,)

In the case of a company engaged in working any mine within and subject to the jurisdiction of the Stannaries, the court of the vice-warden of the Stannaries, unless the vice-warden certifies that in his opinion the company would be more advantageously wound up in the High Court of Chancery, in which case "the court" shall mean the High Court of Chancery:

In the case of a company registered in England that is not engaged in working any such mine as aforesaid,—the High Court of Chancery: In the case of a company registered in Ireland, the Court of Chancery in Ireland:

In all cases of companies registered in Scotland, the Court of Session in either division thereof:

Provided that where the Court of Chancery in England or Ireland makes an order for winding up a company under this act, it may, if it thinks fit, direct all subsequent proceedings for winding up the same to be had in the Court of Bankruptcy having jurisdiction in the place in which the registered office of the company is situate; and thereupon such last-mentioned Court of Bankruptcy shall, for the purposes of winding up the company, be deemed to be "the court" within the meaning of the act, and shall have for the purposes of such winding up all the powers (1) of the High Court of Chancery, or of the Court of Chancery in Ireland, as the case may require.

(1) All the powers, &c.]-Where the Court of Chancery had directed further proceedings to be taken in a Court of Bankruptcy, that court has jurisdiction to commit persons disobeying its orders: (Ex parte Hertzell, 30 L. J., 38 Ch.)

82. Application for winding up to be made by petition.—Any application to the court for the winding up of a company under this act shall be by petition ;(1) it may be presented by the company, or by any one or more creditor or creditors, contributory or contributories of the company, or by all or any of the above parties, together or separately; and every order which may be made on any such petition shall operate in favour of all the creditors and all the contributories of the company in the same manner as if it had been made upon the joint petition of a creditor and a contributory.