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Appointment of official
Resignations, removals, filling up vacancies and compensation (a).
court therein, there may be appointed a person or persons to be called an official liquidator or official liquidators (); and the court having jurisdiction may appoint such person or persons, either provisionally or otherwise, as it thinks fit, to the office of official liquidator or official liquidators; in all cases if more persons than one are appointed to the office of official liquidator, the court shall declare whether any act hereby required or authorized to be done by the official liquidator is to be done by all or any one or more of such persons. The court may also determine whether any and what security is to be given by any official liquidator on his appointment; if no official liquidator is appointed, or during any vacancy in such appointment, all the property of the company shall be deemed to be in the custody of the court.
(i) See Rules, Nos. 8-19, post.
(k) See 19 & 20 Vict. c. 47, s. 88.
(1) Liquidators appointed to wind-up a company under the Joint Stock Banking Companies Act, 1857, ought as a general rule to be disinterested persons, and neither creditors nor shareholders. In re Northumberland and Durham District Banking Company, 2 De G. & J. 508.
Where a judge's chief clerk appointed an official manager of a company, and refused to adjourn the matter for the further consideration of the judge himself, and the judge himself afterwards, but without having heard all parties, declined to interfere with the appointment made by his chief clerk: the appointment was held by the court of appeal to be invalid. Agriculturist Cattle Insurance Company, 7 Jur. N. S. 590; 30 L. J., Ch. 619-L. J.
The mere fact of a person having once been an official manager of one company is not in itself a good ground for appointing him to a similar office for another. Ib. The court of appeal will not interfere with the discretion of the judge in appointing an official manager. An official manager does not exercise any legal functions. Ib., S. C., 9 W. R. 910-L. J.
93. Any official liquidator may resign or be removed by the court on due cause shown; and any vacancy in the office of an official liquidator appointed by the court shall be filled by the court (b) : there shall be paid to the official liquidator such
salary or remuneration, by way of per-centage or otherwise, as the court may direct; and if more liquidators than one are appointed such remuneration shall be distributed amongst them in such proportions as the court directs.
(a) See 11 & 12 Vict. c. 45, s. 32; 12 & 13 Vict. c. 108, s. 6 and 19 & 20 Vict. c. 47, s. 88, as to remuneration of official manager and his clerks.
The per-centage was decided to attach only on the amount actually received and divided among the creditors, and not upon the sum set off by contributories. North of England Joint Stock Banking Company, L. J. 1851, Ch. 462.
(b) See Rule, No. 16.
94. The official liquidator or liquidators shall be style and described by the style of the official liquidator or duties of official liquidators of the particular company in re- liquidator(c). spect of which he is or they are appointed, and not by his or their individual name or names; he or they shall take into his or their custody, or under his or their control, all the property, effects and things in actions to which the company is or appears to be entitled, and shall perform such duties in reference to the winding-up of the company as may be imposed by the court (d).
(c) This section is nearly the same as the 89th section, 19 & 20 Vict. c. 47, s. 89.
(d) See sect. 203, post, as to unregistered companies.
95. The official liquidator shall have power, with Powers of the sanction of the court (f), to do the following things:
To bring or defend any action, suit or prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company (g); To carry on the business of the company, so far as may be necessary for the beneficial windingup of the same;
To sell the real and personal and heritable and moveable property, effects and things in action of the company by public auction or private contract, with power to transfer the whole
official liquidator (e).
thereof to any person or company, or to sell the same in parcels (h);
To do all acts and to execute, in the name and on behalf of the company, all deeds, receipts and other documents, and for that purpose to use, when necessary, the company's seal; To prove, rank, claim and draw a dividend, in the matter of the bankruptcy or insolvency or sequestration of any contributory, for any balance against the estate of such contributory, and to take and receive dividends in respect of such balance, in the matter of bankruptcy or insolvency or sequestration, as a separate debt due from such bankrupt or insolvent, and rateably with the other separate creditors;
To draw, accept, make and indorse any bill of exchange or promissory note in the name and on behalf of the company, also to raise upon the security of the assets of the company from time to time any requisite sum or sums of money; and the drawing, accepting, making or indorsing of every such bill of exchange or promissory note as aforesaid on behalf of the company shall have the same effect with respect to the liability of such company as if such bill or note had been drawn, accepted, made or indorsed by or on behalf of such company in the course of carrying on the business thereof; [To take out, if necessary, in his official name, letters of administration (i) to any deceased contributory, and to do in his official name any other act that may be necessary for obtaining payment of any monies due from a contributory or from his estate, and which act cannot be conveniently done in the name of the company; and in all cases where he takes out letters of administration, or otherwise uses his official name for obtaining payment of any monies due from a contributory, such monies shall for the purpose of enabling him to take out such letters
or recover such monies, be deemed to be due to the official liquidator himself](k); To do and execute all such other things as may be necessary for winding-up the affairs of the company and distributing its assets (1).
(e) This section is nearly the same as the 90th section of 19 & 20 Vict. c. 47.
(f) See Rules, Nos. 48-50.
(g) See sect. 203, as to unregistered companies.
(h) See Rule No. 32.
(i) See sect. 105, post.
(k) The paragraph in brackets is not in the 90th section, 19 & 20 Vict. c. 47.
(1) See sects. 159-162, post, powers of official managers under 11 & 12 Vict. c. 45, s. 55, 12 & 13 Vict. c. 108, ss. 8, 30; see sect. 133, pl. 10, post.
The court, in directing a compromise under sect. 19 of the Compromise 21 & 22 Vict. c. 60, exercised a judicial discretion, and would of claims by not direct the official liquidators to enter into a compromise liquidators. without having the means of itself forming an opinion as to the propriety of the compromise. Therefore where official liquidators applied to the court to direct a compromise which had been proposed by a body of thirty-five shareholders in a company which was being wound-up, to pay among them an aggregate sum in discharge of their liabilities as shareholders, but without disclosing to the court the particulars or data of such compromise, the court refused the application. It was in the discretion of the court whether notice should be given to the creditors under the 19th section of the 21 & 22 Vict. c. 60. Re Northumberland and Durham District Banking Company, Ex parte Totty, 1 Drew. & Sm. 273; see sect. 160, post, n.
96. The court may provide by any order that Discretion of the official liquidator may exercise any of the above dator (a). 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.
(a) 21 & 22 Vict. c. 60, s. 9.
of solicitor to
97. The official liquidator may, with the sanction Appointment of the court, appoint a solicitor or law agent to assist him in the performance of his duties.
(b) See Rule, No. 68, sect. 75 of 19 & 20 Vict. c. 47. The official manager appointed the solicitor under the Wind
ing-up Act, 1848, and the 12 & 13 Vict. c. 108, s. 11, made provision as to remuneration.
Ordinary Powers of Court.
98. As soon as may be after making an order for and applica- winding-up the company, the court shall settle a list of contributories, 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 (d).
(c) See 19 & 20 Vict. c. 47, s. 75.
(d) See Rules, Nos. 29-31, as to list of contributories. It seems that service of notice of a meeting to settle the list of contributories of a company in process of being woundup in bankruptcy, by sending them through the post to the addresses of the parties, which are not their registered addresses, is not good service so as to fix them as contributories in the event of their not attending. The commissioner, under the Joint Stock Companies Act, 1856, has not jurisdiction to give costs to a party who is summoned from the country as liable to be placed on the list of contributories. Re London, Harwich and Continental Steam Packet Company (Limited), 30 L. T. 139, Bank.
99. In settling the list of contributories the court to represen, shall distinguish between persons who are contributories (a). butories 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(b).
To what companies
the repealed acts apply.
(a) See 11 & 12 Vict. c. 45, s. 76.
(b) See sect. 76, ante, p. 85; although the Winding-up Acts 1848 and 1849, and the Joint Stock Companies Acts, 1856-1858, are repealed by this act from the 2nd November, 1862, see sect. 205, 206, post, and third schedule, such acts continue applicable to companies which had been ordered to be wound-up previously to that day. The consideration of those acts and the numerous decisions thereon will therefore be a matter of frequent recurrence,