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renders him personally liable to the payment. Grand Trunk Railway Company v. Brodie, 3 De G., M. & G. 146; 17 Jur. 309; 22 L. J., Ch. 114; see Ex parte Woodmer, 22 L. J., Ch. 513; Ex parte Roberts, 1 Drew. 115; Clifton's Case, 5 De G., M. & G. 743; Ex parte A' Beckett, 2 Jur. N. S. 684.
Pending the decision of a question as between a managing committee and the contributories of a company, an order was made for a call upon all the contributories for the purpose of raising a sum sufficient for the payment of the debts and costs which had been proved and allowed. The court refused a motion, with costs, by three of the contributories to discharge or vary the order, on the ground that the managing committee were personally liable to the payment, but leave was granted to the contributories to take such proceedings as they might be advised. Ex parte Gay, 1 Jur. N. S. 463.
Although a winding-up order be made according to the prayer of the petition, the costs of it may in some cases be ultimately thrown on the petitioner. Ex parte Sedgwick, 2 Jur. N. S. 949. Except by agreement, the costs of contributories, representing a class in an unsuccessful contest, will not be allowed out of the estate. Ex parte Watson, 3 Jur. N. S. 853. Where the right to a winding-up order is established, the costs of intervening proceedings arising out of an opposition to the order must be borne by the respondents. Re Bosworthen Mining Company, 26 L. J. Ch. 612.
A creditor of a company is entitled to the costs in an action brought by him, until the advertisement under the Windingup Act for creditors to appoint a representative has been issued. Ex parte Tobin, Re Potosi Mining Company, 4 Jur. N. S. 1093; 28 L. J., Ch. 44.
All costs properly incurred by the official manager are to be paid out of the assets of the company, and if necessary by calls on its contributories. 11 & 12 Vict. c. 45, s. 59. Representatives of creditors may concur in proceedings and in compromises which will bind all the creditors; 20 & 21 Vict. c. 78, s. 3, subject to their consent, if required by the judge, and every compromise and other arrangement is subject to such conditions as to payment of the costs of any actions, suits or other proceedings, and as to the obtaining the consent of creditors or any of them, as the judge or master shall think fit. 20 & 21 Vict. c. 78, s. 4.
Where an official manager has been appointed under a winding-up order, which is afterwards declared to be void, the Court of Bankruptcy has no jurisdiction to order payment to the official manager of the costs and expenses incurred by him under such winding-up order. Re Plumstead Water Company, Ex parte Harding, 11 W. R. 99; see Winding-up Acts, 1848, ss. 59, 83, 103; Act 1856, ss. 74, 86 and 87, and 21 & 22 Vict. c. 60, s. 11.
The creditors' representatives may appear upon an appeal
against an order putting another person upon the list of contributories, and his costs will be payable by the shareholders although the appeal fail, and the appellant be ordered to pay the costs of the official manager. Budd's Case, 10 W. R. 51; Hatton's Case, Ib. 313.
The creditors' representative has a right, under the 20 & 21 Vict. c. 78, to attend the settlement of the list of contributories, the expense of which falls on the latter; Re Mexican and South American Mining Company, 26 Beav. 172, and to have his costs on the appeal upon the question whether a person is or is not a contributory, S. C., 27 L. J., Ch. 658.
The usual practice has been to allow to the creditors' representative his costs for simply appearing at chambers to support the same case as the official manager, but such practice has been disapproved. Hatton's Case, 10 W. R. 313; Hoare's Case, Ib. 381. The creditors' representative is entitled to appear when the summons is adjourned into court, and will be allowed the costs of such appearance. Re Saxon Life Assurance Society, 2 J. & H. 408. The court has declined to hear counsel for the creditors' representative on the hearing of the claimants of a debt against the company, and only allowed the costs of appearance. Burges and Stirp's Case, 2 J. & H. 441. Where a creditor's representative appears simply in that character, he will not be allowed the costs of such appearance; but when he appears in entirely different capacities the court will, according to the circumstances, allow such costs out of the estate. Re Era Insurance Company, William's Case, The Anchor Case, 7 L. T., N. S.
On a petition to wind-up a company within the Stannaries, a creditor is not entitled to appear and oppose. Re Tretoil and Messer Mining Company, 2 J. & H. 421.
An order was made in 1849 for winding-up an abortive association for obtaining a railway act. One of the shareholders who had been put upon the list of contributories, obtained in India in 1853, a discharge under the Indian Insolvent Act, 11 & 12 Vict. c. 21. In his schedule filed in pursuance of that act, he did not refer to his liability under the windingup order, nor in any way refer to the railway scheme. În 1858, having returned to England, he was put on the list of contributories. It was held by Lord Campbell, C., and Turner, L. J. (Knight Bruce, L. J., doubting,) that the omission in the schedule did not prevent the discharge from having the same effect as a certificate in bankruptcy in England. Such an objection would have been fatal in England, but in the India Insolvent Act, 11 & 12 Vict. c. 21, s. 60, the only condition is, that the insolvent shall have filed his schedule, and the specification of the debt was not a condition precedent to the discharge of the debt. It was also held, that where a com
court to require deli
pany has come to an end before the bankruptcy of a shareholder, the certificate discharges him from all liability to contribute to debts, and also from all liability to contribute to the expenses of winding-up, and that he ought to be put upon the list of contributories. Re Warwick and Worcester Railway Company, Parbury's Case, Re, 3 De G., F. & J. 80; see Chappel's Case, 5 De G. & Sm. 401; Greenshield's Case, 5 De G. & Sm. 599.
Under a supplemental charter a banking company being empowered to issue new shares, a fraudulent report of the company's affairs was made by the directors, and adopted at a general meeting of the shareholders. In June, 1856, M., a customer of the bank, took twelve of these new shares, executed the deed and received the share certificates. In the next return to the stamp office his name was not inserted as a shareholder, and in the monthly balance sheet the sum paid by him for the shares was treated as a debt from the bank. In his pass book he was credited with interest at four per cent. upon the sum he had paid on account of the shares. M. also attended two meetings of shareholders. In September, 1856, the bank stopped payment, all the new shares not having been issued, and the affairs of the company were afterwards ordered to be wound-up: it was held, that M. was a contributory in respect of the twelve shares, and was not entitled to claim as a creditor in respect of the deposit paid for his shares. Re Royal British Bank, Ex parte Mixer, 28 L. J., Ch. 879.
100. The court may, at any time after making an order for winding-up a company, require any very of pro- contributory for the time being settled on the list of contributories, trustee, receiver, banker or agent (b), or officer of the company, to pay, deliver, convey, surrender or transfer forthwith, or within such time as the court directs, to or into the hands of the official liquidator, any sum or balance, books, papers, estates or effects which happen to be in his hands for the time being, and to which the company is primâ facie entitled (c).
(a) 11 & 12 Vict. c. 45, s. 66.
(b) Hollingsworth's Case, 3 De G. & S. 102; 3 De G. & S. 180.
(c) See form of order for payment of money or delivery of books, &c., No. 13, post.
101. The court may, at any time after making an court to order order for winding-up the company, make an order
on any contributory for the time being settled on the debts by conlist of contributories, directing payment to be made, tributory (a). in manner in the said order mentioned (b), of any monies due from him or from the estate of the person whom he represents to the company, exclusive of any monies which he or the estate of the person whom he represents may be liable to contribute by virtue of any call made or to be made by the court in pursuance of this part of this act; and it may, in making such order, when the company is not limited, allow to such contributory by way of setoff any monies due to him or the estate which he represents from the company on any independent dealing or contract with the company, but not any monies due to him as a member of the company in respect of any dividend or profit:
Provided that when all the creditors of any company whether limited or unlimited are paid in full, any monies due on any account whatever to any contributory from the company may be allowed to him by way of set-off against any subsequent call or calls (c).
(a) See 11 & 12 Vict. c. 45, s. 66.
(b) See form No. 13.
(c) See sect. 38, ante, p. 45.
102. The court may, at any time after making an Power of order for winding-up a company, and either before make or after it has ascertained the sufficiency of the as- calls (a). sets of the company, make calls on and order payment thereof by all or any of the contributories for the time being settled on the list of contributories, to the extent of their liability (b), for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, and it may, in making a call, take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same (c).
(a) This is nearly the same as the 82nd sect., 19 & 20 Vict. c. 47.
(b) See sect. 38, ante, p. 45.
R. became a shareholder in a banking company and executed the deed of settlement for 120 sheres. In winding-up the company the master decided, that the official manager's claim in respect of a call of 1001. per share on the shares held by R., should be considered as a specialty debt, and as overriding the set-off claimed by the executors of R., in respect of simple contract creditors. On motion to reverse or vary this decision: it was held, that the call created an original liability by force of the Winding-up Acts, the 11 & 12 Vict. c. 45, and 12 & 13 Vict. c. 108, and that the right of the official manager to receive, and the duty of the contributory to pay, and the remedy for enforcing that duty arose only under the statute, and therefore the call made upon R. was not a specialty debt against his assets; and the master's decision was reversed. Ex parte Robinson's Executors, 2 Jur., N. S. 11, Stuart, V.-C., assisted by Erle, J. That decision was affirmed on appeal to the Lord Chancellor, assisted by Cresswell, J. and Martin, B., dubitantibus Knight Bruce, L. J., and Turner, L. J.; S. C., 2 Jur. N. S. 1173.
A call made by the master in winding-up a company established by deed under seal, by which the shareholders covenanted to bear the losses of the company in proportion to the number of their shares, and to pay calls to be made by the directors up to 50l. per share, is not a specialty but only a simple contract debt. Per Cranworth, C., agreeing in the opinion of Stuart, V.-C., Erle, J., Cresswell, J. and Martin, B. Ib.
The call made by the master in winding-up is a liability quite independent of any stipulation contained in the deed of settlement, and depends upon the general rules of the law of partnership. Per Cranworth, C., Ib.
The main purpose of the Winding-up Acts is not to secure the interests of creditors, but effectually to adjudicate and settle the legal and equitable rights of the partners inter se ; and those rights must depend upon the contracts into which the parties have entered, and the Winding-up Acts have not altered the force and effect of those contracts, but only the mode of enforcing them by calls. Per Turner, L. J., Ib.
A company, which had obtained an act enabling the company to sue and be sued in the name of one of the members as a nominal plaintiff, was afterwards registered and incorporated pursuant to 19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 14: it was held, that the incorporated company could sue for calls made by the directors before the incorporation of the company. Hull Flax and Cotton Mill Factory Company v. Wellesley, 6 H. & N. 38. After an order for the voluntary winding-up of a company, the liquidators appointed under the 19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 4, may make calls without