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Application for winding up to be

made by petition.

it up, a defendant may contest the validity of the order and
show that the court had no jurisdiction to make it. Plum-
stead, Woolwich and Charlton Consumers Water Company (Of-
ficial Manager) v. Davis, 28 Beav. 545; affirmed on appeal,
29 L. J., Ch. 388; 6 Jur. N. S. 309; see Shelford on Law of
Bankruptcy, pp. 500-502, 3rd ed.

Where the Court of Chancery had made an order in a
winding-up case for the further proceedings to be taken in a
particular court of bankruptcy: it was decided, that such
court had jurisdiction to commit_persons disobeying its order
in such further proceedings. Ex parte Hirtzel, Re United
General Bread and Flour Company, 30 L. J., Ch. 88.

The Joint Stock Companies Acts, 1856, 1857 and 1858, did not take away from the Court of Chancery the jurisdiction to adjudicate upon a disputed claim against a company which is in course of voluntary winding-up. Lowndes v. The Garnett and Moseley Gold Mining Company of America (Limited), 31 L. J., Chanc. 451.

A savings bank not registered under the Banking Act must be wound up in bankruptcy. Ex parte Coe, Re the District Savings Bank (Limited), 31 L. J., Chanc. 319.

A petition for winding-up a company was presented before its bankruptcy, but was heard afterwards. There having been no application by the assignee to wind it up, the court held, that notwithstanding the 11 & 12 Vict. c. 45, s. 6 (which prevents any other person than the assignee applying for a winding-up order after a fiat), it had jurisdiction to make the order, and it made the order accordingly. A petition presented by a shareholder to wind-up a company after a petition to make the company bankrupt has been presented, but before any adjudication, is irregular and will be dismissed with costs. Re Mitre General Life Assurance Association, 29 Beav. 1.

Any society registered under the Industrial and Provident Societies Act, 1862, may be wound up under this act either by the court or voluntarily. The court having jurisdiction in such case will be the county court of the district in which the office of the society is situated. 25 & 26 Vict. c. 87, s. 17.

82. Any application to the court for the windingup of a company under this act shall be by petition (a); it may be presented by the company, or by any one or more creditor or creditors, contributory or contributories (b) 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 favor of all the creditors and all the contributories of the company in the

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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.

grant injunc

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
the company, or of any creditor or contributory of
the company, restrain (f) further proceedings in
any action, suit or proceeding against the company,
upon such terms as the court thinks fit; the court
may also at any time after the presentation of such
petition, and before the first appointment of liqui-
dators, appoint provisionally an official liquida-
tor (g) of the estate and effects of the company (h).

(e) This differs materially from the 84th section, 19 & 20
Vict. c. 47.

(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. &

N. 22.

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,

court on

tion (a).

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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

stayed after

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.

Power of

proceedings (e).

(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

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