Part IV. Winding-up.

affidavit or by oral examination of witnesses or of parties, whether voluntarily offering themselves for examination or summoned to attend by compulsory process of the court, or to produce documents before the court; and the court shall also have power, incidentally, to decide on the validity and extent of any lien or charge claimed by any creditor on any property of the company in respect of such debt, and to make declarations of right, binding on all persons interested; and for the more satisfactory determination of any question of fact, or mixed question of law and fact arising on such inquiry, the vice-warden shall have power, if he thinks fit, to direct and settle any action or issue to be tried either on the common law side of his court, or by a common or special jury, before the justices of assize in and for the counties of Cornwall or Devon, or at any sitting of one of the superior courts in London or Middlesex, which action or issue shall accordingly be tried in due course of law, and without other or further consent of parties; and the finding of the jury in such action or issue shall be conclusive of the facts found, unless the judge who tried it makes known to the vice-warden that he was not satisfied with the finding, or unless it appears to the vice-warden that, in consequence of miscarriage, accident, or the subsequent discovery of fresh material evidence, such finding ought not to be conclusive.

109. Court to adjust rights of contributories.-The court shall adjust the rights of the contributories amongst themselves, and distribute any surplus that may remain amongst the parties entitled thereto.

110. Court to order costs.-The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the estate of the company of the costs, charges, and expenses (1) incurred in winding up any company in such order of priority as the court thinks just.

(1) Of the costs, charges, and expenses.]-This does not remove the objections so loudly and justly made to the former act, that the costs of winding up a Company are made to fall, not upon the persons whose business is dealt with, but upon the unfortunate creditors. The petitioners are primarily liable, but if the court should deem it a fit case for winding-up, the costs will, as a matter of course, be ordered to be paid out of the estate. In the case of a

Ordinary Powers of Court.

Limited Company, this will be in fact to charge the expenses upon the creditors, for it will, pro tanto, diminish their fund.

111. Dissolution of company.-When the affairs of the company have been completely wound up, the court shall make an order that the company be dissolved from the date of such order, and the company shall be dissolved accordingly.

112. Registrar to make minute of dissolution of company.-Any order so made shall be reported by the official liquidator to the registrar, who shall make a minute accordingly in his books of the dissolution of such company.

113. Penalty on not reporting dissolution of company. If the official liquidator makes default in reporting to the registrar, in the case of a company being wound up by the court, the order that the company be dissolved, he shall be liable to a penalty (1) not exceeding five pounds for every day during which he is so in default.

(1) A penalty.]-The manner of recovering penalties is prescribed by sects. 65 and 66.

114. Petition to be lis pendens.-Any petition for winding up a company by the court under this act shall constitute a lis pendens (') within the terms of the act passed in the session holden in the second and third years of the reign of her present Majesty, chapter eleven, and intituled An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis pendens, and Fiats in Bankruptcy, provided the same is duly registered in manner required by such act concerning suits in equity.

(1) Shall constitute a lis pendens.]-This refers to sect. 7 of the above act, which enacts "that no lis pedens shall bind a purchaser or mortgagee without express notice thereof, unless and until a memorandum or minute containing the name and the usual or last known place of abode, and the title, trade or profession of the person whose estate is intended to be affected thereby, and the Court of Equity, and the title of the cause or information, and the day when the bill or information was filed, shall be left with the Senior Master of the Court of Common Pleas, who shall forth

Part IV. Winding-up.

with enter the same particulars in a book as aforesaid, in alphabetical order by the name of the person whose estate is intended to be affected by such lis pendens."

Extraordinary Powers of Court.

115. Power of court to summon persons before it suspected of having property of company.-The court may,(') after it has made an order for winding up the company, summon before it any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or any person whom the court may deem capable of giving information concerning the trade, dealings, estate, or effects of the company; and the court may require any such officer or person to produce any books, papers, deeds, writings, or other documents in his custody or power relating to the company; and if any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, having no lawful impediment (made known to the court at the time of its sitting, and allowed by it), the court may cause such person to be apprehended, and brought before the court for examination; nevertheless, in cases where any person claims any lien on papers, deeds, or writings or documents produced by him, such production shall be without prejudice to such lien, and the court shall have jurisdiction in the winding-up to determine all questions relating to such lien.

(1) The court may, &c.]-As soon as it has made the winding up order, the Court of Chancery may consign the business of winding-up to a Court of Bankruptcy, and thereupon the latter court becomes "the Court," having the powers given by this and the four following sections: (see sect. 81.)

116. Special provisions us to Court of vice-warden of the Stannaries.-If, after an order for winding up in the Court of the vicewarden of the Stannaries, it appears that any person claims property in, or any lien, legal or equitable, upon any of the machinery, materials, ores, or effects on the mine or on premises occupied by the company in connection with the mine, or to which the company was, at the time of the order, primâ facie entitled, it shall be lawful for the vice-warden

Extraordinary Powers of Court.

or the registrar to adjudicate upon such claim on interpleader in the manner provided by section eleven of the act passed in the eighteenth year of the reign of Her present Majesty, chapter thirty-two; and any action or issue directed upon such interpleader may, if the vicewarden think fit, be tried in his court or at the assizes or the sittings in London or Middlesex, before a judge of one of the superior courts, in the manner and on the terms and conditions hereinbefore provided in the case of disputed debts and claims of creditors.

117. Examination of parties by court.-The court may examine upon oath, either by word of mouth or upon written interrogatories, any person appearing or brought before them in manner aforesaid concerning the affairs, dealings, estate, or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same.

118. Power to arrest contributory about to abscond, or to remove or conceal any of his property.-The court may, at any time before or after it has made an order for winding up a company, upon proof being given that there is probable cause for believing that any contributory to such company is about to quit the United Kingdom, or otherwise abscond,(1) or to remove or conceal any of his goods or chattels, for the purpose of evading payment of calls, or for avoiding examination in respect of the affairs of the company, cause such contributory to be arrested, and his books, papers, moneys, securities for moneys, goods, and chattels to be seized, and him and them to be safely kept until such time as the court may order.

(1) Or otherwise abscond.]—The proof should be such as is required under the Absconding Debtor's Act. The powers of this section are limited to contributories, and do not extend to other debtors to the Company.

119. Powers of court cumulative.-Any powers by this act conferred on the court shall be deemed to be in addition to and not in restriction

of

any other powers subsisting, either at law or in equity, of instituting proceedings against any contributory, or the estate of any contributory, or against any debtor of the company for the recovery of any call or other sums due from such contributory or debtor, or his estate, and such proceedings may be instituted accordingly.

Part IV. Winding-up.

Enforcement of and Appeal from Orders.

120. Power to enforce orders.-All orders made by the Court of Chancery in England or Ireland under this act may be enforced in the same manner in which orders of such Court of Chancery made in any suit pending therein may be enforced, and for the purposes of this part of this act the court of the vice-warden of the Stannaries shall, in addition to its ordinary powers, have the same power of enforcing any orders made by it as the Court of Chancery in England has in relation to matters within the jurisdiction of such court, and for the last-mentioned purposes the jurisdiction of the vice-warden of the Stannaries shall be deemed to be co-extensive in local limits with the jurisdiction of the Court of Chancery in England.

121. Power to order contributories in Scotland to pay calls.—Where an order, interlocutor, or decree has been made in Scotland for winding up a company by the court, it shall be competent to the court in Scotland during session, and to the Lord Ordinary on the bills during vacation, on production by the liquidators of a list certified by them of the names of the contributories liable in payment of any calls which they may wish to enforce, and of the amount due by each contributory respectively, and of the date when the same became due, to pronounce forthwith a decree against such contributories for payment of the sums so certified to be due by each of them respectively, with interest from the said date till payment, at the rate of five pounds per centum per annum, in the same way and to the same effect as if they had severally consented to registration for execution, on a charge of six days, of a legal obligation to pay such calls and interest; and such decree may be extracted immediately, and no suspension thereof shall be competent, except on caution or consignation, unless with special leave of the court or Lord Ordinary.

122. Order made in England to be enforced in Ireland and Scotland.-Any order made by the court(1) in England for or in the course of the winding up of a company under this act shall be enforced in Scotland and Ireland in the courts that would respectively have had jurisdiction() in respect of such company if the registered office of the company had been situate in Scotland or Ireland, and in the same