Enforcing order for

calls upon contributories.

Proof of debts.

recent and upon such further evidence. It appeared that the evidence had not been looked at by the master, but he decided upon the citation and argument of the cases and the allegation of further evidence, that there was enough to justify an order to review. On appeal the court confirmed this decision. Ex parte Viscount Curzon, 3 Drew. 598.

The court refused to make an order under sect. 66 of the 11 & 12 Vict. c. 45, enforcing payment against the contributories of a company in course of winding-up of a debt found due to a creditor, there being no assets sufficient to pay it in the hands of the official manager, upon the ground that a call was the only medium through which the court ordered debts so found due to be paid. Re Cameron Coalbrook Steam Coal and Swansea and Lougher Railway Company, 9 W. R. 684-R.

An order ex parte was made under 21 & 22 Vict. c. 60, ss. 12, 13, for the inrolment of an order of the Court of Session in Scotland, directing payment by contributories of a sum of money, or in default, attachment. Re Western Bank of Scotland, 1 De G., F. & J. 1.

A contributory to the liabilities of a company in course of being wound-up was ascertained by the official assignee to be the owner of shares standing in her name in the books of another company: it was ordered that such shares should stand charged with the amount due from her in respect of a call made upon her as such contributory, but without prejudice to a claim of lien upon such shares in respect of a debt claimed by the company in whose books the shares were standing from the company in course of being wound-up. Re Connell, 25 L. J., Chanc. 649.

After a winding-up order has been lodged in the judge's chambers the chief clerk will, within ten days afterwards, insert in the London Gazette an advertisement requiring the creditors to come in before him and to prove their debts and demands, or be precluded from the benefit of any distribution which may be made before new debts are proved; see 11 & 12 Vict. c. 45, s. 72; 19 & 20 Vict. c. 47, s. 84.

Debts are proved by creditors before the chief clerk by affidavit or declaration in the same manner as in bankruptcy, but power is given to the judge to allow or direct debts to be proved by the official liquidator, which power is exercised with the view of saving expense, 11 & 12 Vict. c. 45, s. 74. It is declared by the act 11 & 12 Vict. c. 45, s. 3, that the word "creditor" shall for the purposes of that act include every person having any debt or demand enforceable against the company in any court of law or equity, or for non-payment or non-satisfaction of which damages could be recovered." Provision must therefore be made for equitable debts; Terrell v. Hutton, 4 H. L. C. 1091; and trustees of the company having claims against it are entitled to be paid like other creditors. Croxton's Case, 5 De G. & S. 432.

Debts not barred by the Statute of Limitations when they What debts are established will be paid, notwithstanding the subsequent may be lapse of time might be sufficient to bar them. Wryghte's Case, proved. 5 De G. & Sm. 244; see ante, pp. 84, 85; Ex parte Higgins, 2 Jur. N. S. 178. When creditors have been precluded from suing under the stat. 20 & 21 Vict. c. 78, s. 7, the Statute of Limitations ceases to operate against them.

The bill of a solicitor had been taxed and ordered to be paid out of the first funds of the company to be received by the official manager, but the solicitor abstained from taking proceedings to obtain payment for more than six years, the affairs of the company in the meantime having been settled by a compromise: it was decided, that the solicitor could not require a call to be made for payment of his bill. Ex parte A' Beckett, 2 Jur. N. S. 684; see Gloucester, &c. Railway Company, 6 Jur. N. S. 116, ante, p. 85.

A mortgagee appears to be entitled to prove without giving up his security, as is requisite in bankruptcy. Wright's Case, 14 Jur. 498; see 12 & 13 Vict. c. 45, s. 74.

Proof was allowed under a winding-up order against a company in the case of a secretary, who, without borrowing powers, had borrowed money for the company, which was bona fide employed for its benefit. Electric Telegraph Company of Ireland, Troup's Case, 7 Jur. N. S. 901; 8 W. R. 878.

An ex parte order was made for a person carrying in a claim under a winding-up to sue in forma pauperis. Ex parte Fry, 1 Drew. & Sm. 318.

After a claim made by a director against a company under a winding-up order had been disallowed, the court would not allow his executors, who had discovered letters, which at the time of the claim were in the director's possession, but not brought forward by him, to use such letters for the purpose of establishing such claim. Re Warwick and Worcester Railway Company, Ex parte Kelly's Executors, 9 W. R. 329.

A creditor, whose claim is disallowed, may either appeal Appeal. from the decision, Ernest v. Nicholls, 6 H. L. C. 101, or apply for leave to take proceedings for establishing his case at law, Armstrong's Case, 3 De G. & Sm. 140, or take proceedings without leave, if not precluded by the act 20 & 21 Vict. c. 78; for the Winding-up Acts, 1848, 1849, do not preclude a creditor from pursuing his legal remedies for the recovery of his debts. Hutchinson v. Harding, 11 Exch. 561.

The official manager or contributories, if dissatisfied with the allowance of debts, may appeal. Ex parte Gwyn, 1 Jur. N. S. 300. Contributories have been allowed to be heard upon an appeal by an official manager. Re Norwich Yarn Company, 13 Beav. 428; Re Bodmin United Mines, 23 Beav. 385.

An order for a call was made on the 10th of September, 1857, in the progress of winding-up a company in bankruptcy

H

Practice on

winding-up under the previous acts.

under the 19 & 20 Vict. c. 47. On 20th of November, 1857, a peremptory order was made on a contributory for payment of the amount payable by him in respect of the call. On 27th November, he obtained from the commissioner an order suspending the last-mentioned order. On the 3rd February, 1858, the commissioner rescinded the order of 27th November. The company then appealed against the orders of the 10th September, 20th November and 3rd of February. The court of appeal held that the 19 & 20 Vict. c. 47, gave no right of appeal, except by reference to the Bankrupt Act, 12 & 13 Vict. c. 106, and no appeal having been brought against any of the orders of 10th September and 20th November, within the time limited by the 12th section of the latter act, those could not be questioned, and that as there could be no appeal from the orders of the 10th September and 20th November, it must be assumed in determining as to the continuance or not of the suspending order, that the above-mentioned orders were originally right. Ex parte Clarke, 2 De G. & J. 245; 4 Jur. N. S. 800; 27 L. J., Bank. 25.

An affidavit of personal service of an order for payment under the Winding-up Acts need not state where the service was effected. Re Job, Re Nantte Slate Company, 27 Beav. 32.

Where a creditor of a company in the course of winding-up cannot proceed to recover his debt by reason of want of means, the court will allow him to sue in formâ pauperis. Re Irish Land Improvement Society, Ex parte Fry, 9 W. R. 51.

Notice to creditors is given in winding-up cases, though it is not imperative that notice should be given. Ex parte Totty, 29 L. J., Chanc. 702; 8 W. R. 713.

An order of a Scotch court in a winding-up suit was ordered, after having been entered here, to be enrolled on an ex parte application. Re Western Bank of Scotland, 8 W. R. 1.

A representative of creditors appointed under the 1st section of the 20 & 21 Vict. c. 78, is entitled to attend before the master at the settling of the list of contributories of the company under process of winding-up, he being interested in watching who is put on and who is struck off the list. Re Mexican and South American Mining Company, 4 Jur. N. S. 595; 27 L. J., Chan. 658-L. J.

A creditor has a right to attend and supervise proceedings in chambers under the Winding-up Acts in any way he may consider desirable for securing payment of the debts of the company. Re London and Eastern Banking Corporation, 4 Kay & J. 273. The proper course to be taken by the creditors' representative for this purpose is pointed out in this case.

An executrix of a deceased policy-holder obtained judgment against an insurance company for the amount of the policy, and issued a writ of execution against the company, to which a return was made nulla bona. An order was afterwards made to wind-up the company and an official manager was

appointed. The executrix proved her debt, which was duly allowed. No creditors' representative had been appointed under the 20 & 21 Vict. c. 78. A demurrer to a bill by the executrix against the official manager to obtain payment of the policy money was overruled. Robson v. M'Creight, 4 Jur. N. S. 269; 27 L. J., Ch. 47.

An adjudication in bankruptcy against a public company is valid, although made after the order for winding-up and appointment of the official manager, notwithstanding the 20 & 21 Vict. c. 78, under which act the assignees are in the same position as if they had petitioned for the winding-up of the affairs of the company under the 11 & 12 Vict. c. 45. Re London and Eastern Banking Corporation, 4 Jur. N. S. 743; 27 L. J., Ch. 457. Upon the appointment of assignees in bankruptcy after an order for winding-up, such assignees become the creditors' representatives, by which the creditors are made parties to the winding-up, and the bankruptcy is of no further avail than to clothe the assignees with authority to concur with the official manager in winding-up the affairs of the company, and the court will grant an injunction to restrain the assignees from using the proceedings in bankruptcy in any other way than in their character of creditors' representatives. Ib.

Where a creditor brought an action against a company, pending a petition for winding-up, the court held that discretion was given to the judge to stay proceedings, and an injunction was granted to restrain the action until the hearing of the petition. Re Northumberland and Durham District Banking Company, 27 L. J., Ch. 354. Upon the petition coming on to be heard subsequently, the court decided under the circumstances upon granting an order for voluntary winding-up of the company. S. C., 4 Jur. N. S. 419; 27 L. J., Ch. 356.

A party about to be put upon the list of contributories is entitled to question the regularity of the winding-up order. Re Mexican and South American Mining Company, Ex parte Barclay, 4 Jur., N. S. 1042; 27 L. J., Ch. 660. On a motion to place a shareholder on the list of contributories, it is not competent for him to raise a question as to the validity of the winding-up order, but liberty will be given to move to discharge the order by a substantive application to the court. Ib.

Contributories are not entitled to be heard on a question as to placing others on the list. Re Bodmin United Mines Company, 23 Beav. 385.

An alleged contributory under a winding-up order was summoned before the chief clerk as a witness and to produce papers. He refused to be sworn, on the ground that it was important that he should have the assistance of counsel. Upon a motion to commit, it was held that the witness had

Costs of proving debts.

Recovery of costs.

Jurisdiction

as to costs.

no right to refuse to be sworn, but that the proper course was, after he was sworn, to apply to the chief clerk to have his examination taken before the judge or an examiner, and if necessary, to have the question determined by adjournment into court. Ex parte Bunn, 3 Jur. N. S. 1013.

An application to a judge or master under the 20 & 21 Vict. c. 78, s. 7, for leave to take proceedings at law, should be made in chambers. Re Royal British Bank, 3 Jur. N. S. 1114.

The general costs of winding-up the company and the costs of proving debts and of trying issues, and of all other matters in which creditors or any particular contributories or classes of contributories of the company shall be interested, shall be at the discretion of the master (now the judge at chambers), and shall be paid either out of the general estate of the company or out of any portion of the general estate, or shall be debited or credited to any individual contributories or classes of contributories, or shall be subject to such set-off as the master shall from time to time direct. 11 & 12 Vict. c. 45, s. 103. The costs of all proceedings which shall take place before the court shall be in the discretion of the court. Ib. s. 104. All costs shall be ascertained by the judge at chambers or shall be taxed, settled and adjusted by such persons as he shall direct, and the taxing masters of the court are required to tax all such costs as the judge at chambers shall direct to be taxed by them, and to make their certificate of such taxation in the usual manner. Ib. s. 105.

All costs ordered to be paid under the act are recoverable in the same manner and by the same process as costs ordered to be paid by any party under any order or decree made in a suit pending in the court. Ib. s. 106. As to the recovery of costs, see Smith's Ch. Pr. pp. 225-229 (7th ed.); Daniell's Ch. Pr., ch. xxvii, s. 6.

Under the above provisions there was no jurisdiction to order the costs of improperly summoning persons as contributories to be paid by the official manager. Ex parte Marsh, 1 M. & G. 302; 1 Hall & T. 578; 13 Jur. 995; 19 L. J., Ch. 161. It seems that a company ought not to be charged with the costs of more than one petition for an order to wind-up its affairs. Re Madrid and Valencia Railway Company, 3 De G. & S. 127; 14 Jur. 55.

In appeals under the Joint Stock Companies Act, 1848, 1849, the general rule of practice of the Court of Chancery, by which a successful appellant is not allowed the costs of his appeal, does not apply to proceedings under the Winding-up Acts, but the costs of all the proceedings are in the discretion of the court. Ex parte Hall, 1 De G., M. & G. 1; 15 Jur.

1067.

Upon the hearing of a petition presented by a contributory, the court may dismiss the petition with or without costs, to