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Collection and application of
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 winding-up the the court shall settle a company, 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 represent 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).
(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(b) See sect. 76, ante, p. 85; although the Winding-up Acts 1848 and 1849, and the Joint Stock Companies Acts, the repealed 1856-1858, are repealed by this act from the 2nd November, 1862, see sect. 205, 206, post, and third schedule, such acts continue applicable to companies which had been ordered to be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,
and it is hardly necessary to remark that many of the decisions on the repealed acts will be applicable to the construction of this act. The act 1848, 11 & 12 Vict. c. 45, applied to all companies corporate or unincorporate within the provisions of either of the two acts 7 & 8 Vict. c. 111, and 8 & 9 Vict. c. 98, including all companies existing on the 1st day of November, 1844, and which had obtained or should obtain a certificate of registration under the 7 & 8 Vict. c. 110, and to all companies which would have been within the provisions of either of the said two acts if they had not been dissolved or had not ceased to trade at the time of the passing thereof respectively, and to all banking companies which would have been within the provisions thereof if they had not been specially excepted from the provisions of the act 7 & 8 Vict. c. 110, and to certain railway companies which do not come within the scope of this work, and to all companies, associations and partnerships to be formed after 14th August, 1848, whereof the capital or the profits was or were divided or to be divided into shares, and such shares transferable without the express consent of all the copartners.
By stat. 11 & 12 Vict. c. 45, s. 3, all associations or companies formed for the purpose of working mines or minerals, and all benefit building societies other than such as were duly certified and enrolled under the statutes in force respecting such societies, were made liable to the operation of that act; but nothing therein contained affected the jurisdiction of the court of stannaries in Cornwall.
By 12 & 13 Vict. c. 108, notwithstanding anything in the act 11 & 12 Vict. c. 45, importing a more limited application thereof, the same was applied to all partnerships, associations and companies whereof the partners or associates were not less than seven in number, whether incorporated or unincorporated, and whether formed or subsisting before or after 14th August, 1848, or the 1st August, 1849 (except railway companies incorporated by act of parliament, to which companies such act did not apply): provided that nothing contained in the 12 & 13 Vict. c. 108, should affect the jurisdiction of the court of stannaries in Cornwall; and that nothing contained in that act, nor in any act therein referred to, should extend to any partnership, association or company formed for the working of mines on the principle commonly called the costbook principle within the said stannaries and jurisdiction of the said court, unless the owner or owners of one-tenth in value of the shares in any such mine as should appear on the cost-book should present a petition to the Lord Chancellor or to the Master of the Rolls for the dissolution and winding-up or for the winding-up of the affairs of such company, which petition, and the parties thereto and all proceedings thereupon, were subject to the provisions of the act 12 & 13 Vict. c. 108, and the acts therein referred to.
What companies or societies
The provisions of the 19 & 20 Vict. c. 47, relating to the winding-up of companies, applied to all companies registered under that act, and to all companies registered under the act 7 & 8 Vict. c. 110, from the date at which they had obtained registration under the act 19 & 20 Vict. c. 47, in manner thereinafter mentioned, but not to any other companies.
A society certified under the Industrial and Provident Societies Acts was held to be within the provisions of the Windwithin acts. ing-up Acts, and an order for winding-up such society was made accordingly. Re National Industrial and Provident Society, 30 L. J., Chanc. 940; 9 W. R. 774-R.; see 25 & 26 Vict. c. 87, s. 17.
Where a company, by whose deed of settlement it was proIvided that on the transfer or forfeiture of the shares of its proprietors, their liability for the debts of the company should determine, had ceased to carry on business, the court made a winding-up order on the petition of several former shareholders who had been sued and been obliged to pay a large sum of money on behalf of the company, notwithstanding that it appeared that they had some time since transferred or forfeited their shares. Re Times Fire Assurance Company, 10 W. R. 115-R.
A benefit building society, which had been duly enrolled under the 6 & 7 Will. 4, c. 32, was held to be within the Winding-up Acts, 11 & 12 Vict. c. 45, and 12 & 13 Vict. c. 108. Re St. George's Benefit Building Society, 4 Drew. 154; 3 Jur. N. S. 683; 27 L. J., Ch. 96.
A banking company constituted under 7 & 8 Vict. c. 113, contracted liabilities by trading contrary to the direction of the statute 7 & 8 Vict. c. 113, s. 5, before half its capital was paid up, the company having been ordered to be wound-up: it was held, that a call might be lawfully made to provide for the liabilities so incurred. Re London and Eastern Banking Corporation, Ex parte Longworth's Executors, 1 Johns. 465; 5 Jur. N. S. 1389. Affirmed on appeal, 29 L. J., Chanc. 55; 6 Jur. N. S. 1. It was held also, that a contributory could not set up such illegal commencement of business to defend him from the payment. Ib.
Two persons, who traded in their own names as a firm, having become embarrassed, executed a deed to which they were parties of the first part, certain of their creditors as trustees of the second part, and the general body of creditors, including the trustees, who were scheduled, of the third part. The deed empowered the trustees to carry on the trade business under the name of the "Stanton Iron Company," to execute all contracts and instruments necessary for carrying it on; to divide the net income to be received among the creditors in rateable proportions, such income to be deemed the property of the two partners, with power for the majority of the creditors assembled at a meeting to make rules for con
ducting the business or to determine it altogether, and after the discharge of the debts the property was to be retransferred by the trustees to the two partners. One of the two creditors who were named trustees never acted; the other acted six weeks and then resigned. Some time afterwards the other trustees, who continued to carry on the business, being indebted to a third party, gave him bills of exchange accepted by themselves, per proc. "The Stanton Iron Company:" it was held, that no partnership was created by the deed, and consequently that the two trustees who had ceased to act could not be sued as partners in the company, nor for goods sold and delivered, there being no distinction upon the question of liability between the bills and the consideration for which they were given, and that the company was not within the Winding-up Acts 11 & 12 Vict. c. 45, 12 & 13 Vict. c. 108. Re Stanton Iron Company, 21 Beav. 164; 2 Jur. N. S. 130; 23 L. J., Ch. 142; Cox v. Hickman, 8 H. L. C. 268.
It was decided that a cost-book mining company, subject to the jurisdiction of the stannary court of Devon, could be wound-up in chancery, notwithstanding the one-tenth in value of the shares in the company was not held by the petitioners. South Lady Bertha Mining Copper Company, 2 Johns. & H. 376. Such company not being within the exemption in the above acts, and although the jurisdiction of the stannary court had been extended by 18 & 19 Vict. c. 32, to Devonshire. See ante, p. 115.
Leave might be obtained, ex parte, to present a petition for winding-up a mining company, subject to the jurisdiction of the stannaries, and it was unnecessary to state in the petition that such leave had been obtained and communicated to the respondent. Ib. A creditor of the company was not entitled to oppose the petition, although his rights were thereby seriously affected. Tretoil and Messer Mining Company,
2 Johns. & H. 421.
The directors of a company transferred all its assets, lia- On amalgabilities and business to another company under a deed of mation of amalgamation, by which it was provided that the shareholders in the old company should exchange their shares for shares in the new company, and that the new company should indemnify the old company in respect of all its debts and liabilities. Some only of the shareholders in the old company executed the deed of amalgamation and became shareholders in the new company. The new company disputed their liability to carry out the arrangement for the amalgamation, and did not pay the debts of the old company and actions were brought against the old company. The new company subsequently assigned their business, but not their assets, to another company. Upon a petition for the winding-up of the old company, presented by a shareholder in the new company, who had originally been a shareholder in the old company,
Parties entitled to apply.
and which was supported by the shareholders of the old company who had executed the deed of amalgamation, but opposed by those who had not: the court refused to order the old company to be wound-up, and dismissed the petition with costs as against those shareholders who had been served, but without costs as against those shareholders who had voluntarily appeared. Re Anglo Australian and Universal Family Life Assurance Company, Ex parte Smith and re British Provident Life and Fire Assurance Society, Ex parte Collins, 1 Drew. & Sm. 113.
Company A. amalgamated with company B., but some of the shareholders of company A. did not concur in such proceedings. A bill was filed for specific performance of such amalgamation, and suits being instituted by creditors against company A., a shareholder who had come in and exchanged his shares under such amalgamation, petitioned for a windingup of company A. Such petition was dismissed with costs. Re Anglo Australian and Universal Family Life Assurance Company, Ex parte Smith, Re British Provident Life and Fire Assurance Society, Ex parte Collins, 8 W. R. 170, V. C. K. A shareholder in company B., who had become such under the amalgamation, also petitioned to wind-up, having given notice to another company, who had contracted to purchase company B., not to pay the purchase-money. The petition was ordered to stand over, with liberty to any person to apply. Ib. The fact that suits had been instituted against a company is not evidence per se of the insolvency of the company. Ib.
Although an amalgamation and purchase of the business and liabilities of one joint stock company by another, established for similar purposes, may exceed their power as a transaction not within the general scope and purpose of the business of such a company, and unauthorized by the deed of settlement, there may have been such an amount of subsequent acquiescence as to render the attempted amalgamation, though invalid in its inception, binding as between the two companies. Re Era Assurance Society, Williams's Case, Anchor Company's Case, 11 W. R. 204; 2 Johns. & H. 400.
Three partners formed a firm, which carried on business at Hayti, one of whom lived and died in England, one was living at Hayti, and the third lived and died at Hayti. The plaintiff had obtained administration of the effects of the third in England, and filed a bill against the partner living at Hayti and the representative of the one who died in England to have the firm at Hayti wound-up. After the bill had been filed here the party living at Hayti took proceedings in the court there to wind-up the firm. There had been dealings betwen the firm at Hayti and a firm in England; the two first named were partners. There was no allegation that the representatives of the party who had died at Hayti would be bound by the proceedings there, his assets being in England.