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same manner as if it had been made upon the joint petition of a creditor and a contributory (c).
(a) See general orders as to the petition, post, Nos. 1—5, and forms 1 and 2 in the schedule thereto. As to the order to wind-up, see rules 6 and 7 and forms 3-5 in the 3rd schedule to this act.
(b) See definition of contributory, sect. 74, ante, p. 76. (c) See form of order under this section, No. 3, post.
83. Any judge of the High Court of Chancery Power o may do in chambers any act which the court is hereby authorized to do; and the vice-warden of the stannaries may direct that a petition for windingup a company be heard by him at such time and at such place within the jurisdiction of the stannaries, or within or near to the place where the registered office of the company is situated, as he may deem to be convenient to the parties concerned, or (with the consent of the parties concerned) at any place in England; and all orders made thereupon shall have the same force and effect as if they had been made by the vice-warden sitting at Truro or elsewhere within the jurisdiction of the court, and all parties and persons summoned to attend at the hearing of any such petition shall be compellable to give their attendance before the vice-warden by like process and in like manner as at the hearing of any cause or matter at the usual sitting of the said court; and the registrar of the court may, subject to exception or appeal to the vice-warden as heretofore used, do and exercise such and the like acts and powers in the matter of winding-up as he is now used to do and exercise in a suit on the equity side of the said court.
84. A winding-up of a company by the court Commenceshall be deemed to commence at the time of the ment of winding-up presentation of the petition for the winding-up. by court (d).
(d) This differs from sect. 64 of 19 & 20 Vict. c. 47.
85. The court may, at any time after the pre- Court may sentation of a petition for winding-up a company tion (e). under this act, and before making an order for
winding-up the company, upon the application of
(f) Where upon the winding-up of a banking company, which was also adjudicated bankrupt, a contributory against whom judgment had been signed on a scire facias effected a compromise and obtained a certificate under the 20 & 21 Vict. c. 78, the court stayed all further proceedings on the judgment without imposing any terms. Cleave v. Harwar, 6 H. &
Where upon a petition to wind-up it appears that the capital of the company has been expended in a manner contemplated by the articles of association, and there is no sufficient evidence that the company is unable to pay its debts, or that there is no regularly constituted body to carry on its business, and there appears no prospect of immediate danger to the property of the company, the court will not exercise the power given by sect. 84 of 19 & 20 Vict. c. 47, and appoint a receiver before the hearing, or grant an injunction to restrain actions pending against the company, simply because they may result in preferences. Ex parte Tucker, re Folkestone West Cliff Hotel Company, 4 L. T., N. S. 529-Holroyd, Com. Writs of injunction against a corporation may be enforced forcing writs either by attachment against the directors or other officers of injunction thereof as in the case of a mandamus or by writ of sequesagainst corporations. tration against their property and effects, to be issued in such form and tested and returnable in like manner as writs of execution, and to be proceeded upon and executed in like manner as writs of execution issuing out of the Court of Chancery. 23 & 24 Vict. c. 126, s. 33.
Mode of en
Course to be
(g) See sect. 92, post, p. 109.
(h) See post, sect. 197, and as to the power of the court to restrain proceedings with respect to the winding-up of unregistered companies, post, ss. 201-204, and Rules Nos. 15 and 59 as to provisional official liquidators.
86. Upon hearing the petition the court may pursued by dismiss the same with or without costs, may adhearing peti- journ the hearing conditionally or unconditionally,
and may make any interim order, or any other order that it deems just (b).
(a) See 19 & 20 Vict. c. 47, ss. 70, 71, 72.
(b) See general orders, Nos. 6, 7. As to order by the court to wind-up, post.
Where a winding-up order is discharged the official manager appointed under it is not entitled, out of the estate of the company, to his costs incident to his appointment or to his costs in a suit instituted under the direction of the court or to any remuneration. Ex parte Harding, 8 Jur. N. S. 1140. Where, after a petition to wind-up a company, the peti- Costs. tioning creditor's debt was tendered, minus the costs incurred by him in respect of his petition, the court put the company upon terms either to pay the costs of the petitioner within a fortnight, or to be wound up. Ex parte Mackrill, Re St. John's United Copper and Lead Mining Company, Newfoundland, 4 L. T., N. S. 260-Evaus, Com.
In July, 1850, the master, by an order by consent, directed that the bill of costs of the solicitors of a company then being wound-up should be paid by the official manager out of the first monies which should come to his hands from the assets of the company or the contributories thereof; and that the solicitors who had previously refused to do so without being guaranteed the payment of their costs to deliver up forthwith to the official manager all the books and papers belonging to the company. In February, 1856, an order for a call was made, but it was never enforced, as the debts of the contributories were settled by compromise. In May, 1856, the master, on the application of the solicitors for that purpose, refused to make a call upon the contributories in order that their bill of costs might be paid out of the proceeds of such call. Upon motion on appeal to discharge the order of May, the court declined to interfere and no order was made. Ex parte A' Beckett, 2 Jur. N. S. 684-V. C. S. Where it appeared that the books of the official manager had not been perfectly kept the court refused to make any order as to his costs. Ib.
Where it appeared upon an appeal that the creditors' representatives had no interest distinct from that of the official manager, the greater part of the costs of the separate appearance of the former were disallowed out of the estate, and only a small fixed sum given them towards such costs, the court being of opinion that he should have joined in the appeal of the official manager. Ex parte Cotterell, Re National Assurance and Investment Association (The Bank of Deposit), 7 L. T., N. S. 341.
87. When an order has been made for winding- Actions and up a company under this act no suit, action or other suits to be
order for windingup (a).
Copy of order to be
proceeding shall be proceeded with (b) or commenced against the company except with the leave of the court, and subject to such terms as the court may impose (c).
(a) See 19 & 20 Vict. c. 47, ss. 74, 84; 21 & 22 Vict. c. 60, s. 9, 20 & 21 Vict. c. 78, s. 7.
(b) See s. 198, post, and s. 202, as to unregistered companies. After a company had been adjudicated bankrupt and an order in chancery had been pronounced for winding-up its affairs a creditor of the company obtained judgment against the official manager, and then having first obtained leave by a judge's order, sued out a writ of elegit against the property and effects of a shareholder of the company, under which the lands of the shareholder were delivered to him by the sheriff. He then filed a bill as tenant by elegit to redeem a mortgage upon the lands prior in point of date to the execution: it was held, upon demurrer, that the bill was not within the prohibition of the 20 & 21 Vict. c. 78, s. 7, which act had passed since the filing of the bill. Barnes v. Thrupp, 3 Jur. N. S. 1242; 27 L. J., Chanc. 183-V. C. S.
Where, on the day on which a winding-up order was made, but before the order was pronounced, a judgment creditor of the company issued a fi. fa. against the effects of the company, but before the execution was levied the official liquidator obtained possession of such effects under the order, the court granted an injunction to restrain the creditor and sheriff from proceeding to execution. Re Waterloo Education, &c. Assurance Company, 11 W. R. 159.
88. When an order has been made for winding forwarded to up a company under this act, a copy of such order registrar (d). shall forthwith be forwarded by the company to the registrar of the joint stock companies, who shall make a minute thereof in his books relating to the company.
(d) See 19 & 20 Vict. c. 47, s. 73.
89. The court may at any time after an order court to stay has been made for winding-up a company, upon the application by motion of any creditor or contributory of the company, and upon proof to the satisfaction of the court that all proceedings in relation to such winding-up ought to be stayed, make an order staying the same, either altogether
or for a limited time, on such terms and subject to such conditions as it deems fit.
(e) The same as sect. 85, 19 & 20 Vict. c. 85.
90. When an order has been made for winding- Effect of up a company limited by guarantee and having a share capital capital divided into shares, any share capital that of company may not have been called up shall be deemed to be assets of the company and to be a debt (in England and Ireland of the nature of a specialty (f)) due to the company from each member to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the court (g).
(f) See ante, p. 83, n. (b); sect. 38, pp. 45, 46, and sect. 134, post.
(g) See sect. 9, ante, p. 17, and sect. 134, post.
have regard to wishes of
91. The court may, as to all matters relating to Court may the winding-up, have regard to the wishes of the creditors or contributories, as proved to it by any creditors or sufficient evidence, and may, if it thinks it expe- tories. dient, direct meetings of the creditors or contributories to be summoned, held and conducted in such manner as the court directs, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the court: in the case of creditors, regard is to be had to the value of the debts due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the company (h).
(h) See s. 149, post, and Rules Nos. 45-47, as to meetings under this section. The direction of the judge for any meeting of creditors under this section, and of a chairman of such meeting, shall be stamped by a memorandum signed by the chief clerk of the judge. See Rule, No. 47.
Official Liquidators (i).
92. For the purpose of conducting the proceed- Appointment ings in winding-up a company, and assisting the
of official liquidator(k).