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ceedings, be deemed to be an order of the court for
(y) See 21 & 22 Vict. c. 60, s. 4.
152. Where an order has been made for the winding-up of a company subject to the supervision of the court, and such order is afterwards superseded by an order directing the company to be wound-up official liqui- compulsorily, the court may in such last-mentioned order, or in any subsequent order, appoint the voluntary liquidators or any of them, either provisionally or permanently, and either with or without the addition of any other persons, to be official liquidators.
Dispositions after the commence
ment of the avoided (c).
(b) This section is in substance the same as the 8th section, 21 & 22 Vict. c. 60.
153. Where any company is being wound-up by the court or subject to the supervision of the court all dispositions of the property, effects and things in action of the company, and every transfer of shares, or alteration in the status of the members of the company made between the commencement of the winding-up and the order for winding-up, shall, unless the court otherwise orders, be void (d).
(c) See 19 & 20 Vict. c. 47, s. 73.
(d) See sects. 163, 164, pp. 187, 188, post.
154. Where any company is being wound-up, all The books of books, accounts and documents of the company to be eviand of the liquidators shall, as between the con- dence (e). tributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.
(e) This section is the same as the 81st section of 19 & 20 Vict. c. 47.
155. Where any company has been wound-up As to disunder this act and is about to be dissolved, the posal of books, accounts and documents of the company and counts and of the liquidators may be disposed of in the follow- of the coming way; that is to say, where the company has pany. been wound-up by or subject to the supervision of the court, in such way as the court directs, and where the company has been wound-up voluntarily, in such way as the company by an extraordinary resolution directs; but after the lapse of five years from the date of such dissolution (f), no responsibility shall rest on the company, or the liquidators, or any one to whom the custody of such books, accounts and documents has been committed, by reason that the same, or any of them, cannot be made forthcoming to any party or parties claiming to be interested therein.
(f) See sect. 111, ante, p. 159.
of books (g).
156. Where an order has been made for winding- Inspection up a company by the court, or subject to the supervision of the court, the court may make such order for the inspection by the creditors and contributories of the company of its books and papers as the court thinks just, and any books and papers in the possession of the company may be inspected by creditors or contributories, in conformity with the order of the court, but not further or otherwise (h).
(g) See 21 & 22 Vict. c. 60, s. 7.
(h) See Rule No. 58, post.
157. Any person to whom any thing in action Power of belonging to the company is assigned, in pursuance assignee to
Debts of all descriptions to be proved (k).
of this act, may bring or defend any
(i) It is a well-known rule of law that a chose in action cannot in general be assigned so as to vest in the assignee a right of action for it in his own name, but the action must be brought in the assignor's name. See Graham v. Grace, 13 Q. B. 548; Thompson v. Bell, 3 El. & Bl. 236; Broom's Maxims, 421-423, 3rd ed.
158. In the event of any company being woundup under this act, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value (1).
(k) See 12 & 13 Vict. c. 106, s. 178. See Shelford on the Law of Bankruptcy, pp. 542-546, 3rd ed.
(1) As to the proof of debts, see Rules Nos. 20-28, post. The value of such debts and claims as may be proved under this section shall, so far as possible, be estimated according to the value thereof at the date of the order to wind-up the company. Rule, No. 25, post.
Under the Winding-up Acts, 1848, 1849, the purchaser of an annuity from an insurance company is entitled to prove for the value of the annuity, and the right may be made available without a bill being filed. Re English and Irish Church and University Life Assurance Society, Hunt's Case, 11 W. R. 225; see Evans v. Coventry, 26 L. J., Ch. 400; 3 Drew. 75; 5 De G., M. & G. 911; 25 L. J., Ch. 489; King v. Accumulative Society, 8 C. B., N. S. 152.
Where the secretary of a company, which had no borrowing powers, borrowed monies on behalf of the company, and which were bonâ fide employed for the purposes of the com. pany, proof for the amount was allowed against the company, which was in the course of being wound-up. Electric Telegraph Company of Ireland, Troup's Case, 7 Jur., N. S. 901; 9 W. R. 878-R.; S. P., Hoare's Case, Ib.
A shareholder in a company advancing money to and for the purposes of the company is entitled to prove against the company on its being wound-up in bankruptcy in respect of such advances, notwithstanding one of the notes given by him as part of such advances had not been paid. Re Maresfield Patent Gunpowder Company, 4 L. T., N. S. 30-Fonblanque, Com.
159. The liquidators may, with the sanction of General the court, where the company is being wound-up liquidation by the court or subject to the supervision of the may be court, and with the sanction of an extraordinary resolution of the company where the company is being wound-up altogether voluntarily, pay any classes of creditors in full, or make such compromise or other arrangement as the liquidators may deem expedient with creditors or persons claiming to be creditors, or persons having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable.
160. The liquidators may, with the sanction of Power to the court (n), where the company is being wound-up (m). by the court or subject to the supervision of the court, and with the sanction of an extraordinary resolution (o) of the company where the company is being wound-up altogether voluntarily, compromise all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims, whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets of the company or the winding-up of the company, upon the receipt of such sums, payable at such times, and generally upon such terms as may be agreed upon, with power for the liquidators to take any security for the discharge of such debts or liabilities, and to give complete discharges in respect of all or any such calls, debts or liabilities (p).
(m) See 21 & 22 Vict. c. 60, s. 19.
(n) See sect. 129.
(o) See Rules Nos. 49, 60-62, post.
(p) A company was being wound-up compulsorily after an Compromise abortive attempt to wind it up voluntarily, and the official of claims by liquidators agreed with thirty-five shareholders to compromise liquidators.
their liability for a fixed sum, those shareholders insisting as a condition, that the data upon which the compromise was founded should not be divulged. The compromise was sworn to be founded upon details of property and circumstances, which if made known would operate detrimentally to the thirty-five shareholders and to the interests of the company. The official liquidators applied to the court to sanction the compromise under that condition, in pursuance of the 19th section of the 21 & 22 Vict. c. 60. Some of the creditors opposed on the ground of the data not being stated, and the application was refused, with costs. Ex parte Totty, Re Northumberland and Durham District Banking Company, 29 L. J., Ch. 702; 8 W. R. 624.
The court will not sanction a proposed compromise with an official liquidator, unless sufficient information be afforded of the grounds upon which the compromise is based. Ex parte Totty, 1 Dr. & Sm. 273, 6 Jur., N. S. 849. Such a compromise, when approved by a chief clerk, does not require the personal sanction of the judge at chambers to render it binding. But any person who is aggrieved by such compromise has a right to have the matter considered by the judge. Ex parte Garsten, 10 W. R. 457.
161. Where any company is proposed to be or is in the course of being wound-up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement, receive in compensation or part compensation for such transfer or sale shares, policies or other like interests in such other company, for the purpose of distribution amongst the members of the company being wound-up, or may enter into any other arrangement whereby the members of the company being wound-up may, in lieu of receiving cash, shares, policies or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company; and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be binding on the members of