Ordinary Powers of Court. Vict. c. 60, to compromise debts, it is provided for by one of the supplemental provisions in sect. 160. (2) To bring or defend any action.]-It will be observed, that, by the preceding section, the "official liquidator" is to be described only by that title, without using his individual name, so that all legal and other proceedings should be taken in the name of "the Official Liquidator of the Clothing Company Limited" (or as the case may be). 96. Discretion of official liquidator.—The court may provide by any order that the official liquidator may exercise any of the above powers without the sanction or intervention of the court, and where an official liquidator is provisionally appointed may limit and restrict his powers by the order appointing him. 97. Appointment of solicitor to official liquidator.-The official liquidator may, with the sanction of the court, appoint a solicitor or law agent (1) to assist him in the performance of his duties. (1) May appoint a solicitor or law agent.]—In practice, the solicitor for the petitioners nominates the official liquidator, who in return appoints him to be solicitor to the winding-up. Ordinary Powers of Court. 98. Collection and application of assets.-As soon as may be after making an order for winding up the company, the court shall settle a list of contributories,(1) with power to rectify the register of members in all cases where such rectification is required in pursuance of this act, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities. (1) The court shall settle a list of contributories.]—The official liquidator will for this purpose prepare a list of contributories from the register of members, which he will submit to the court for settlement. Notice of the time and place for settling this list by the court should be advertised in some widely circulated newspaper, and sent to every person whose name appears upon the register of members, or who has been included by the liquidator in the list which he purposes to submit to the court, Part IV. Winding-up. The notice may be in the following form: Sir,-I hereby give you notice, that I have placed your name in the List of Contributories of the Clothing Company Limited, in respect of 20 shares. The court has appointed at , at the hour of the day of precisely, for settlement of the List of Contributories, when any objection by you to being placed on the said list for the said number of shares will be heard and determined. You may appear by counsel, or by solicitor, or in person.—Yours, &c., B. C., Official Liquidator. A contributory is "a member," and he has been loosely defined by sect. 23 as "any person who has agreed to become a member, and whose name is entered on the register." But there must be mutuality of assent to constitute a good agreement to become a member, as in Ex parte Graham (30 L. J. 42 Bank.), where the party had withdrawn his application for shares before the court had allotted them. So a transfer of shares, to be valid, must be bona fide, and not made with purpose to avoid liability for calls. A colourable transfer to a pauper or a nominee, made to avoid liabilities, has in many cases been held to be void, and the transferor was made the contributory (See Ex parte Lund, 27 Beav. 465; Hyam's Case, 1 De G. F. & J. 75; Chinnock's Case, 1 John. 714; Ex parte Budd, 31 L. J. 4, Ch.) 99. Provision as to representative contributories.—In settling the list of contributories the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or being liable to the debts of others; it shall not be necessary, where the personal representative of any deceased contributory is placed on the list, to add the heirs or devisees of such contributory, nevertheless such heirs or devisees may be added as and when the court thinks fit. 100. Power of court to require delivery of property.-The court may, at any time after making an order for winding up a company, require any contributory for the time being settled on the list of contributories, trustee, receiver, banker, or agent, or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the court directs, to or into the hands of the official liquidator, any sum or balance, books, papers, estate, or effects Ordinary Powers of Court. which happen to be in his hands for the time being, and to which the company is primâ facie entitled. 101. Power of court to order payment of debts by contributory.— The court may, at any time after making an order for winding up the company, make an order on any contributory for the time being settled on the list of contributories, directing payment to be made, in manner in the said order mentioned, of any moneys due from him or from the estate of the person whom he represents to the company, exclusive of any moneys which he or the estate of the person whom he represents may be liable to contribute by virtue of any call made or to be made by the court in pursuance of this part of this act; and it may, in making such order, when the company is not limited, allow to such contributory by way of set-off (1) any moneys due to him or the estate which he represents from the company on any independent dealing or contract with the company, but not any moneys due to him as a member of the company in respect of any dividend or profit: Provided that when all the creditors of any company whether limited or unlimited are paid in full, any moneys due on any account whatever to any contributory from the company may be allowed to him by way of set-off against any subsequent call or calls. (1) Allow to such Contributory by way of set-off.]-It will be observed that this power to allow a set-off is permitted only to unlimited Companies, and even in these it is restricted to moneys due from the Company to the contributory, upon independent dealings or contracts, and not on calls, at least until all the creditors have been paid in full. In the case of a Limited Company, no debt of any kind due from the Company to the contributory can be set-off against calls; nor, it would seem, against an independent debt due to the Company, until all the creditors are paid in full. But in adjusting the claims and liabilities, the liquidators will, of course, treat a debt due to a contributory as a debt which the other contributories must pay, and make calls accordingly. If, however, the shares are paid up, no call can be made, so that a member of a limited Company needs to be doubly cautious in giving credit to it, seeing that he will be compelled to pay all that he owes to the Company in full, while the Company will not be compelled to pay him, Part IV. Winding-up. 102. Power of court to make calls.-The court may, at any time after making an order for winding up a company, and either before or after it has ascertained the sufficiency of the assets of the company, make calls(1) on and order payment thereof by all or any of the contributories for the time being settled on the list of contributories, to the extent of their liability, for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, and it may, in making a call, take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same. (1) The Court may, &c., make calls.]-This it will do on the application of the official liquidator, who should always make liberal allowance for nonpayment by a considerable portion of the members. But when the insolvent members are ascertained, the process must be repeated of making calls upon the solvent for the remaining balance, until all are exhausted. Notice of each call should be given by letter to all the contributories, and a reasonable time allowed for payment. 103. Power of court to order payment into bank.-The court may order any contributory, purchaser, or other person from whom money is due to the company to pay the same into the Bank of England or any branch thereof to the account of the official liquidator instead of to the official liquidator, and such order may be enforced in the same manner as if it had directed payment to the official liquidator. 104. Regulation of account with court.-All moneys, bills, notes, and other securities paid and delivered into the Bank of England or any branch thereof in the event of a company being wound up by the court, shall be subject to such order and regulation for the keeping of the account of such moneys and other effects, and for the payment and delivery in, or investment and payment and delivery out of the same as the court may direct. 105. Provision in case of representative contributory not paying moneys ordered.-If any person made a contributory as personal representative of a deceased contributory makes default in paying any sum Ordinary Powers of Court. ordered to be paid by him, proceedings may be taken for administering the personal and real estates of such deceased contributory, or either of such estates, and of compelling payment thereout of the moneys due. 106. Order conclusive evidence.-Any order made by the court in pursuance of this act upon any contributory shall, subject to the provisions herein contained for appealing against such order, be conclusive evidence that the moneys, if any, thereby appearing to be due or ordered to be paid are due, and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons, and in all proceedings whatsoever, with the exception of proceedings taken against the real estate of any deceased contributory, in which case such order shall only be primâ facie evidence for the purpose of charging his real estate, unless his heirs or devisees were on the list of contributories at the time of the order being made. 107. Court may exclude creditors not proving with in certain time.— The court may fix a certain day or certain days (') on or within which creditors of the company are to prove their debts or claims, or to be excluded from the benefit of any distribution made before such debts are proved. (1) A certain day or certain days.]-Of these days notice should be given by advertisement, not only in the Gazette, but in the newspapers circulating in the places where the Company carried on its business. The act omits to make any provision for the manner of proving debts; but it is competent for the court to make an order for that purpose, and it should permit proof of debts to be made by affidavit, subject to objection by the official liquidator, assisted by the officers of the Company, and to further proof, if required. 108. Proceedings in the Court of the vice-warden of the Stannaries on proof of debts.-If in the course of proving the debts and claims of creditors in the Court of the vice-warden of the Stannaries any debt or claim is disputed by the official liquidator or by any creditor or contributory, or appears to the court to be open to question, the court shall have power, subject to appeal as hereinafter provided, to adjudicate upon it, and for that purpose the said court shall have and exercise all needful powers of inquiry touching the same by |