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giving the notices prescribed by the provisions of the deed of settlement or acts for calls made by the directors. Hull Flax and Cotton Mill Factory Company v. Wellesley, 6 H. & N. 38.
The proceeds of a call made under the Winding-up Acts, 1848 and 1849, to provide for the payment of a debt of the company, may be attached in the hands of the official manager, under the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, to answer a judgment against the creditor. Re Warwick, &c. Railway Company, Pritchard's Claim, Ex parte Turner, 2 De G., F. & J. 354.
Where an action is brought for calls made by the liquidators who are winding-up a company, the contributory who is sued is entitled to set off debts due to him from the company. Garnett and Moseley Gold Mining Company v. Sutton, 1 New Rep. 93-Q. B.
By the deed of settlement of a company the capital was to consist of 100,000l. in 1,000 shares of 1007. each, and it was competent to any general meeting of the company to create additional shares of 1001. each. The company at a general meeting created 1,500l. new half shares of 50%. each, some of which the defendant purchased, executed the deed of settlement, and received dividends declared on the shares. It was afterwards resolved at a general meeting that the company should be wound-up, and the defendant was sued for calls made by the directors and the liquidators of the company: it was held, that he was estopped from denying that the 50%. shares were valid shares. Hull Flax and Cotton Mill Factory Company v. Wellesley, 6 H. & N. 38.
Where a company, originally registered as an unlimited company under 7 & 8 Vict. c. 110, was subsequently registered as a limited company under the act 1856, and was woundup under that act, the company remained the same, and the jurisdiction of the court in the winding-up was not limited to dealings after the second registration. A person who was a shareholder before the second registration was, therefore, not entitled to have exemption from calls on the ground that his shares had been fully paid up. Re Liverpool Tradesman's Loan Company (Limited), 11 W. R. 131; see Lofthouse's Case, 6 W. R. 140; Re Plumstead Water Company, 2 De G., F. & J. 20. (c) See Rules, Nos. 33-35.
court to order payment into
103. The court may order any contributory, pur- Power of chaser or other person from whom money is due to the company to pay the same into the bank of Eng- bank (d). land or any branch thereof to the account of the official liquidator instead of to the official liquidator, and such order may be enforced in the same manner as if it had directed payment to the official liquidator.
(d) See 19 & 20 Vict. c. 47, s. 83.
104. All monies, bills, notes and other securities with court. paid and delivered into the bank of England or any branch thereof, in the event of a company being wound-up by the court, shall be subject to such order and regulation for the keeping of the account of such monies and other effects, and for the payment and delivery in, or investment and payment and delivery out, of the same as the court may direct (a).
Provision in case of representative contributory not
paying monies ordered (b).
(a) See Rules, Nos. 11, 32, 36-41.
105. If any person made a contributory as personal representative of a deceased contributory makes default in paying any sum ordered to be paid by him, proceedings may be taken for administering the personal and real estates of such deceased contributory, or either of such estates, and of compelling payment thereout of the monies due (c).
(b) See 11 & 12 Vict. c. 45, s. 89.
(c) See sect. 95, ante, p. 111.
106. Any order made by the court in pursuance of this act upon any contributory shall, subject to the provisions herein contained for appealing (e) against such order, be conclusive evidence that the monies, if any, thereby appearing to be due or ordered to be paid are due, and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons, and in all proceedings whatsoever, with the exception of proceedings taken against the real estate of any deceased contributory, in which case such order shall only be primâ facie evidence for the purpose of charging his real estate, unless his heirs or devisees were on the list of contributories at the time of the order being made.
(d) See 11 & 12 Vict. c. 45, s. 89.
(e) See sect. 124, post.
107. The court may fix a certain day or certain exclude cre- days on or within which creditors of the company proving are to prove their debts or claims, or to be excluded
from the benefit of any distribution made before within cer
such debts are proved (b).
(a) See 19 & 20 Vict. c. 47, s. 84.
(b) See Rules, Nos. 20-28, as to proof of debts, post.
tain time (a).
of the vice
108. If in the course of proving the debts and Proceedings claims of creditors in the court of the vice-warden in the court of the stannaries any debt or claim is disputed by warden of the official liquidator or by any creditor or contri- naries on butory, or appears to the court to be open to question, proof of the court shall have power, subject to appeal as hereinafter provided, to adjudicate upon it, and for that purpose the said court shall have and exercise all needful powers of inquiry touching the same by affidavit or by oral examination of witnesses or of parties, whether voluntarily offering themselves for examination or summoned to attend by compulsory process of the court, or to produce documents before the court; and the court shall also have power, incidentally, to decide on the validity and extent of any lien or charge claimed by any creditor on any property of the company in respect of such debt, and to make declarations of right, binding on all persons interested; and for the more satisfactory determination of any question of fact, or mixed question of law and fact arising on such inquiry, the vice-warden shall have power, if he thinks fit, to direct and settle any action or issue to be tried either on the common law side of his court, or by a common or special jury, before the justices of assize in and for the counties of Cornwall or Devon, or at any sitting of one of the superior courts in London or Middlesex, which action or issue shall accordingly be tried in due course of law, and without other or further consent of parties; and the finding of the jury in such action or issue shall be conclusive of the facts found, unless the judge who tried it makes known to the vice-warden that he was not satisfied with the finding, or unless it appears to the vice-warden that, in consequence of miscarriage, accident or the subsequent discovery of fresh material evidence, such finding ought not to be conclusive.
Court to adjust rights of contribu
Distribution of surplus funds.
Court to order
109. The court shall adjust the rights of the contributories amongst themselves, and distribute any surplus that may remain amongst the parties entitled thereto (b).
(a) See 11 & 12 Vict. c. 45, s. 83; 19 & 20 Vict. c. 47, s. 86.
(b) This means after payment of the debts and liabilities of the company, and all costs, charges and expenses of winding-up. Sect. 102, ante, p. 153.
In the proceedings before the master for winding-up an abortive joint-stock company, in which 53,015 shares had been subscribed for, a sum of 23,000l. was realized. After two advertisements in the daily papers for scripholders, certificates representing 25,675 shares were produced, 24,870 scrip shares were cancelled by arrangement with the holders, leaving 2,470 scrip shares unaccounted for. It appeared that 23,000l. assets of the company remained outstanding. On the application of the official manager, the court authorized him to pay a dividend of 15s. per share among the holders of the 25,675 scrip shares; and to pay and distribute future dividends among the holders for the time being of scrip shares, with the sanction of the master, who was to be at liberty from time to time to alter the lists of scripholders. Kindersley, V. C., said, it was not a question who were contributories. Many persons might be entitled to have the funds of a company distributed among them, whilst only a few of that number, possibly only the managing body, might be found liable as contributories. Re Madrid and Valencia Railway Company, Ex parte Quilter, 5 De G. & S. 276. As to the winding-up of the last company, see Ex parte Turner, 3 De G. & S. 127. Persons having notice of a compromise between the official manager and any contributories must be prompt in taking proceedings to disturb it. A person will not be allowed to remain on the list of contributories so long as he thinks it will be for his benefit to continue there, and then apply for the discharge of his name from the list when he begins to apprehend that it will be prejudicial to him. Underwood's Case, 5 De G., M. & G. 700.
110. The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the estate of the company of the costs, charges and expenses incurred in winding-up any company in such order of priority as the court thinks just.
(c) The same in substance as the 87th section, 19 & 20 Vict. c. 47.
111. When the affairs of the company have been Dissolution completely wound-up, the court shall make an order that the company be dissolved from the date of such order, and the company shall be dissolved accordingly.
(a) The same in substance as the 93rd section, 19 & 20 Vict. c. 47.
to make minute of
112. Any order so made shall be reported by the Registrar official liquidator to the registrar, who shall make a minute accordingly in his books of the dissolution dissolution of such company.
(b) See 19 & 20 Vict. c. 47, s. 94.
of company (b).
113. If the official liquidator makes default in Penalty on reporting to the registrar, in the case of a company dissolution being wound-up by the court, the order that the of comcompany be dissolved, he shall be liable to a penalty pany (c). not exceeding five pounds for every day during which he is so in default.
(c) 20 & 21 Vict. c. 14, s. 20.
114. Any petition for winding-up a company by Petition to the court under this act shall constitute a lis pendens pendens (d). within the terms of the act passed in the session holden in the second and third years of the reign of her present Majesty, chapter eleven (e), and intituled "An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis pendens and Fiats in Bankruptcy," provided the same is duly registered in manner required by such act concerning suits in equity.
(d) This section is the same as the 125th section of the 11 & 12 Vict. c. 45.
(e) By 2 & 3 Vict. c. 11, s. 7, no lis pendens shall bind a pur- Purchasers chaser or mortgagee without express notice thereof, unless not to be and until a memorandum or minute containing the name and affected by any lis penthe usual or last known place of abode, and the title, trade or dens, unless profession of the person whose estate is intended to be af- such suit is fected thereby, and the court of equity and the title of the duly regiscause or information and the day when the bill or information tered as directed by act. was filed, shall be left with the senior master of the Court of Common Pleas, who shall forthwith enter the same particulars in a book therein mentioned in alphabetical order, by the name