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the company being wound-up; subject to this proviso, that if any member of the company being wound-up, who has not voted in favour of the special resolution passed by the company of which he is a member at either of the meetings held for passing the same, expresses his dissent from any such special resolution in writing addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the following things as the liquidators may prefer, that is to say, either to abstain from carrying such resolution into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, such purchase-money to be paid before the company is dissolved, and to be raised by the liquidators in such manner as may be determined by special resolution: no special resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or concurrently with any resolution for winding-up the company, or for appointing liquidators; but if an order be made within a year for winding-up the company by or subject to the supervision of the court, such resolution shall not be of any validity unless it is sanctioned by the court (r).
(q) See 20 & 21 Vict. c. 14, s. 17.
(r) An official manager sold some property, stipulating Sales of prothat the purchaser should accept a conveyance from him with- perty by out requiring the concurrence of any other person for official purpose whatsoever; but if the purchaser considered the legal estate to be outstanding, and should require a conveyance thereof, he should bear all the expenses. The purchaser was to pay the purchase-money on a day named, at which time the purchase was to be completed: it was held, that the purchaser was bound to pay his purchase-money on having a conveyance of the equitable estate from the official manager, the vendor being bound subsequently to assist in getting in the legal estate at the purchaser's expense. Sheerness Waterworks Company (Official Manager) v. Polson, 29 Beav. 70; 30 L. J., Ch. 326; affirmed on appeal, 3 De G., F. & J. 36.
Mode of determining price.
Official liquidators of a bank entered into a provisional contract with B. to sell him property belonging to the bank for 16,000l. At a meeting before the chief clerk this contract was submitted for the approval of the judge, when it was objected to by the solicitor for the creditors, who stated that C., another purchaser, would give a higher price. At another meeting C. offered 17,600l., and an order was made that on his paying 1,6007. into the bank, and engaging to bid 17,6007., the property should be put up to public auction. B. moved to have this order rescinded: it was held, that although the chief clerk was right in not adopting the provisional contract with B., if a larger sum could be obtained, the order for the sale of the property by public auction could not be supported, because it dealt with the property as if sold in a suit. The official liquidators were therefore directed to carry out the contract with C. for 17,600l. Northumberland and Durham District Banking Company, 9 W. R. 584.
162. The price to be paid for the purchase of the interest of any dissentient member be determay mined by agreement, but if the parties dispute about the same, such dispute shall be settled by arbitration, and for the purposes of such arbitration the provisions of "The Companies Clauses Consolidation Act, 1845 (a)," with respect to the settlement of disputes by arbitration, shall be incorporated with this act; and in the construction of such provisions this act shall be deemed to be the special act, and "the company" shall mean the company that is being wound-up, and any appointment by the said incorporated provisions directed to be made under the hand of the secretary, or any two of the directors, may be made under the hand of the liquidator, if only one, or any two or more of the liquidators if more than one.
(a) With respect to the settlement of disputes by arbitratration, it is enacted by 8 & 9 Vict. c. 16, as follows:
128. When any dispute authorized or directed by this or tions are to the special act, or any act incorporated therewith, to be settled mined by arby arbitration, shall have arisen, then, unless both parties bitration, ar- shall concur in the appointment of a single arbitrator, each party, on the request of the other party, shall by writing be appointed under his hand nominate and appoint an arbitrator to whom teen days such dispute shall be referred; and after any such appointafter notice. ment shall have been made, neither party shall have power to revoke the same without the consent of the other, nor shall
the death of either party operate as such revocation; and if for the space of fourteen days after any such dispute shall have arisen, and after a request in writing shall have been served by the one party on the other party to appoint an arbitrator, such last-mentioned party fail to appoint such arbitrator, then upon such failure the party making the request, and, having himself appointed an arbitrator, may appoint such arbitrator to act on behalf of both parties, and such arbitrator may proceed to hear and determine the matters which shall be in dispute; and in such case the award or determination of such single arbitrator shall be final.
129. If before the matters so referred shall be determined Vacancy of any arbitrator appointed by either party die, or become in- arbitrator to be supplied. capable or refuse or for seven days neglect to act as arbitrator, the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place; and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so, the remaining or other arbitrator may proceed ex parte; and every arbitrator so to be substituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death, refusal or disability as aforesaid.
130. Where more than one arbitrator shall have been ap- Appointment pointed, such arbitrators shall, before they enter upon the of umpire. matters referred to them, nominate and appoint by writing under their hands an umpire to decide on any such matters on which they shall differ; and if such umpire shall die, or refuse or for seven days neglect to act, they shall forthwith after such death, refusal or neglect, appoint another umpire in his place; and the decision of every such umpire on the matters so referred to him shall be final.
131. If in either of the cases aforesaid the said arbitrators Board of shall refuse, or shall, for seven days after request of either trade emparty to such arbitration, neglect to appoint an umpire, it powered to shall be lawful for the Board of Trade, if they think fit, in umpire, on any case in which a railway company shall be one party to neglect of the the arbitration, on the application of either party to such arbitrators, arbitration, to appoint an umpire; and the decision of such railway comumpire on the matters on which the arbitrators shall differ panies. shall be final.
in case of
132. The said arbitrators or their umpire may call for the Power of arproduction of any documents in the possession or power of bitrators to either party which they or he may think necessary for deter- books, &c. mining the question in dispute, and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose.
133. Except where by this or the special act, or any act Costs to be incorporated therewith, it shall be otherwise provided, the in the discrecosts of and attending every such arbitration to be deter- tion of the
mined by the arbitrators shall be in the discretion of the arbitrators or their umpires, as the case may be.
134. The submission to any such arbitration may be made to arbitration a rule of any of the superior courts, on the application of rule of court. either of the parties.
to be made
163. Where any company is being wound-up by tachments, the court or subject to the supervision of the court, any attachment, sequestration, distress or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents (b).
tions and executions to be void (a).
Fraudulent preference (c).
(a) See 19 & 20 Vict. c. 47, s. 80.
By 19 & 20 Vict. c. 47, attachments, sequestrations and executions at any time within three months next before the filing or presentation of the petition for winding-up the company were void.
(b) See sect. 87, ante, p. 108, n. (b).
164. Any such conveyance, mortgage, delivery of goods, payment, execution or other act relating to property as would, if made or done by or against any individual trader, be deemed in the event of his bankruptcy to have been made or done by way of undue or fraudulent preference of the creditors of such trader, shall, if made or done by or against any company, be deemed, in the event of such company being wound-up under this act, to have been made or done by way of undue or fraudulent preference of the creditors of such company, and shall be invalid accordingly (d); and for the purposes of this section the presentation of a petition for winding-up a company shall in the case of a company being wound-up by the court or subject to the supervision of the court, and a resolution for winding-up the company shall in the case of a voluntary winding-up, be deemed to correspond with the act of bankruptcy in the case of an individual trader (e); and any conveyance or assignment made by any company formed under this act of all its estate and effects to trustees for the benefit of all its creditors shall be void to all intents.
(c) See s. 76, 19 & 20 Vict. c. 47.
valid, if no
(d) By 12 & 13 Vict. c. 106, s. 133, all payments really Payments, and bona fide made by any bankrupt, or by any person on his conveyances, behalf, before date of the fiat or the filing of a petition for contracts, &c. adjudication of bankruptcy, to any creditor of such bankrupt, against lands and all payments really and bona fide made to any bankrupt (if executed before the date of the fiat or the filing of such petition, and by seizure), and against all conveyances by any bankrupt bona fide made and executed goods (if exbefore the date of the fiat or the filing of such petition, and ecuted by all contracts, dealings and transactions by and with any bank- seizure and rupt really and bonâ fide made and entered into before the sale), to be date of the fiat or the filing of such petition, and all execu- notice of tions and attachments against the lands and tenements of any prior act bankrupt bona fide executed by seizure, and all executions of bankand attachments against the goods and chattels of any bankrupt bonâ fide executed and levied by seizure and sale before the date of the fiat or the filing of such petition, shall be deemed to be valid, notwithstanding any prior act of bankruptcy by such bankrupt committed, provided the person so dealing with or paying to or being paid by such bankrupt, or at whose suit or on whose account such execution or attachment shall have been issued, had not, at the time of such payment, conveyance, contract, dealing or transaction, or at the time of so executing or levying such execution or attachment, or at the time of making any sale thereunder, notice of any prior act of bankruptcy by him committed: provided But nothing also, that nothing herein contained shall be deemed or taken herein to to give validity to any payment or to any delivery or transfer give validity of any goods or chattels made by any bankrupt, being a frau- &c. by way dulent preference of any creditor of such bankrupt, or to any of fraudulent conveyance or equitable mortgage made or given by any preference. bankrupt by way of fraudulent preference of any creditor of such bankrupt, or to any execution founded on a judgment or a warrant of attorney or cognovit actionem or judge's order obtained by consent given by any bankrupt by way of fraudulent preference.
"A bona fide payment imports something different from, Protected and additional to, an actual payment; the words bona fide payments. were inserted by the legislature to raise the question, whether the money had been paid honestly and fairly in the course of an honest transaction." Per Tindal, C. J., Davis v. Venables, 3 Bing. N. C. 403. A payment to be bonâ fide must be made without the intention of being reclaimed. Gibson v. Muskett, 4 Man. & G. 160; see Turquand v. Vanderplank, 10 Mees. & W. 180; Cannon v. Denew, 3 M. & Scott, 761; 10 Bing. 292. The bankrupt, after a secret act of bankruptcy, and within two months before the issuing of a fiat against him, deposited goods with the defendant, in consideration of a present advance of money: it was held, that his assignees might maintain trover for the goods; the transaction, though boná fide, and without notice of an act of bank