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Epitome of the New County Court Act.
EPITOME OF THE NEW COUNTY
THIS act will not come into operation till the 1st October next, except that the scale of costs, the rules of practice, and forms of proceeding may in the meantime be prepared. We purpose, therefore, at present to submit to our readers a mere "bird's eye" view of the several enactments.
As to the JURISDICTION of the county courts
The provisions of the act are applicable to bills of exchange and promissory notes, notwithstanding the Summary Procedure Act, 18 & 19 Vict. c. 67 (s. 2). Summonses may be issued against persons out of the jurisdiction if the cause of action arose within it (s. 15).
The metropolitan courts are to be deemed as one district, and summonses may be issued either in the plaintiff's district or the defendant's (s. 18).
The county court judge is empowered to order a trial in another district (s. 22).
All actions, except for crim. con., may be tried in the county court, even on questions of title, by consent (ss. 23, 25). And without consent when reduced by set-off under £50 (s. 24).
The superior courts may also order trials in the county courts (s. 26).
But no action can be brought in a county court on the judgment of a superior court (s. 27).
No costs on a judgment by default in the superior court, not exceeding £20, are allowed, unless by the order of a judge (s. 30).
A certiorari may be issued to remove a plaint on the order of a judge of the superior courts, on giving security for the amount of the claim and the costs, not in the whole exceeding £100 (ss. 38, 40, 41, 49).
Where the sum sued for is above £20 on contract, or above £5 in tort, the defendant may object to the trial in the county court, and on giving security the proceedings in the county court will be stayed (s. 39).
On an application for a writ of prohibition, the superior court or judge is finally to dispose of the matter without a declaration (s. 42).
Instead of a writ of mandamus, the matter is to be decided on a rule or order (ss. 43, 44).
The amendments or alterations in the PRACTICE of the county courts are principally as follow:
If the sum in question bé above £20, the defendant may be required to give notice of his defence, otherwise there will be judgment by default (ss. 28, 29).
Where the judgment does not exceed £20, the court may order the amount to be paid by instalments. Above that sum, the plaintiff's consent is requisite (s. 45).
Priority of execution is to depend on the time of applying to the registrar for a warrant (s. 46). And when issued from a superior court from the delivery of the writ to the sheriff (s. 47).
Any error in the proceedings may be amended by the order of the judge (s. 57).
Warrants for commitment are regulated by sections 69, 70, 71.
Appeals from the county court may be prevented by consent in writing (s. 69).
The bankruptcy or insolvency of the plaintiff is not to abate the action, if the assignees elect to continue it (s. 62).
Affidavits may be sworn before a judge or registrar without fee, or before a commissioner for taking affidavits in chancery or any superior court (s. 58).
The fees on proceedings in the county courts are specified in the schedule to the act (s. 78); subject to be increased or diminished by the Lords of the Treasury with the Lord Chancellor's consent (s. 79).
The costs of proceedings in the county courts are regulated by sections 33 to 37 inclusive. The scale is to be settled by five of the county court judges, with the Lord Chancellor's approval, and the costs are to be taxed by the registrar. Where the taxation is between attorney and client, the registrar must be satisfied that the client has agreed in writing to pay costs beyond the scale.
The proceedings for obtaining possession of small tenements are regulated by sections 50 to 56 inclusive. And actions of replevin are regulated by sections 63 to 68 inclusive.
Where claims are made in respect of goods taken in execution, the claimant must deposit the value in court to abide the decision of the judge (s. 72).
And where goods are seized under the process of the court, the landlord is entitled to rent in arrear, regulated by the nature of the tenure (s. 75).
The important provisions for the salaries of the judges and officers are embodied in sections 80 to 84
The "registrar" (formerly called the "clerk ") of the court is now limited to a single court, and is entitled to compensation for the loss he may sustain. A proviso, however, is made in favour of the clerks of the courts mentioned in the schedules of the original act 9 & 10 Vict. c. 95.
The provisions of the act which relate to the superior courts are to apply to the Common Pleas at Lancaster and the Court of Pleas at Durham (s. 86). The acknowledgments of deeds by married women under the 3 & 4 Wm. 4 c. 74 may be made before a judge of the county court (s. 73).
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
JOINT STOCK COMPANIES. 19 & 20 Vict. c. 47. [Concluded from page 239.]
88. For the purpose of conducting the proceedings in winding-up a Company, and assisting the court therein, there shall be appointed a person or persons to be called an official liquidator or official liquidators;
New Statutes effecting Alterations in the Law.
and such appointment shall be made as follows: (that is to say)
In cases within the jurisdiction of the Court of Chancery in England or Ireland, or of the Court of Sessions in Scotland, or of the Court of the Stannaries, the court having jurisdiction may, after requiring due security, appoint such persons or person, either provisionally or otherwise, as it thinks fit, to the office of official liquidators; it may from time to time remove any person or persons so appointed, and fill up any vacancy occasioned by such removal or by the death or resignation of any such appointee or appointees; if one person only is appointed, he shall have all the powers hereby given to several liquidators; if more persons than one are appointed, the court shall declare whether any Act hereby required or authorised to be done by the official liquidators may be done by all or any one or more of such persons;
In cases within the jurisdiction of any court of bankruptcy, the official assignee to be named by the court shall be the official liquidator; but it shall be lawful, in cases where the winding-up takes place at the suit of a creditor, for the major part in value of the creditors assembled at a meeting to be held for the purpose, and in cases where the winding-up takes place at the suit of a contributory, for the major part in value of the contributories assembled at a meeting to be held for the purpose, to appoint an official liquidator to act concurrently with the official liquidator so named by the court.
89. The official liquidators or liquidator shall be described by the style of the official liquidators or official liquidator of the particular company in respect of which they or he are or is appointed, and not by their or his individual names or name; they or he shall take into their or his custody all the property, effects, and things in action of the company, and shall perform such duty in reference to the winding-up of the company as may be imposed by the court.
90. The official liquidators shall have power, with the sanction of the court, to do the following things:
To bring or defend any action, suit, or prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company : To carry on the business of the company, so far as may be necessary for the beneficial windingup of the same;
To sell the real and personal and heritable and moveable property, effects, and things in action of the company by public auction or private contract, with power, if they think fit, to transfer the whole thereof to any person or company, or to sell the same in parcels : To execute, in the name and on behalf of the company, all deeds, receipts, and other documents they may think necessary, and for that purpose to use, when necessary, the company's seal;
To refer disputes to arbitration, and compromise any debts or claims;
To prove, claim, rank, and draw a dividend, in the matter of the bankruptcy or insolvency or sequestration of any contributory, for any balance against the estate of such contributory, and to take and receive dividends in respect of such balance, in the matter of bankruptcy or
insolvency or sequestration, as a separate debt due from such bankrupt or insolvent, and rateably with the other separate creditors;
To draw, accept, make, and endorse any bill of exchange or promissory note, and to raise upon the security of the assets of the company from time to time any requisite sum or sums of money; and the drawing, accepting, making or endorsing of every such bill of exchange or promissory note as aforesaid on behalf of the company shall have the same effect with respect to the liability of such company as if such bill or note had been drawn, accepted, made, or endorsed by such company in the course of carrying on the business thereof;
To do and execute all such other things as may be necessary for winding-up the affairs of the company and distributing its assets.
91. The official liquidators may, with the approval of the court, appoint a solicitor or law agent, and such clerks or officers as may be necessary to assist them in the performance of their duties: there shall be paid to such solicitor or law agent, clerks and officers, such remuneration by way of fees or otherwise as may be allowed by the court.
92. There shall be paid to the official liquidators such salary or remuneration, by way of percentage or otherwise, as the court directs.
93. When the affairs of the company have been completely wound up, the court shall make an order or decree declaring the company to be dissolved from the date of such order or decree, and the company shall be dissolved accordingly.
94. Any order or decree so made shall be reported by the official liquidators to the registrar of joint stock companies, who shall make a minute accordingly in his books of the dissolution of such company.
95. In England, the Lord Chancellor of Great Britain, with the advice and consent of the Master of the Rolls, and any one of the Vice-Chancellors for the time being, or with the advice and consent of any two of the Vice-Chancellors, may, as often as circumstances require, make such rules concerning the mode of proceeding to be had for winding up a company in the Court of Chancery as may from time to time seem necessary; but, until such rules are made, the general practice of the Court of Chancery, including the practice hitherto in use in winding-up companies, shall, so far as the same is applicable, and not inconsistent with this act, apply to all proceedings for winding up a company, and official liquidators shall be considered as occupying in all respects the place of an official manager.
96. In Ireland, the Lord Chancellor of Ireland may, as respects the winding up of companies in Ireland, with the advice and consent of the Master of the Rolls in Ireland, exercise the same power of making rules as is by this act herein-before given to the Lord Chancellor of Great Britain; but, until such rules are made, the general practice of the Court of Chancery in Ireland, including the practice hitherto in use in Ireland in winding up companies, shall, so far as the same is applicable, and not inconsistent with this act, apply to all proceedings for winding up a company, aud official liquidators shall, in all respects, be considered as occupying the place of an official manager.
97. In Scotland, the Court of Session may, by act of sederunt, exercise the same power of making rules of practice as herein-before given to the Lord Chancellor of Great Britain as regards England;
New Statutes effecting Alterations in the Law.
but, until such rules are made, the general practice | like proceedings in the court of the Vice-Warden of of the Court of Session in suits pending in such Court shall, so far as the same is applicable, and not inconsistent with this act, apply to all proceedings for winding up a company, and official liquidators shall, in all respects, be considered as possessing the same powers as any trustee on a bankrupt estate.
98. The Vice-Warden of the Stannaries may from time to time, with the approval of the Lord Chancellor of Great Britain, make such general rules as may be necessary or expedient for the purpose of carrying into execution the powers conferred by this act upon the court of the said Vice-Warden; but, subject to such rules, the general practice of the said court in cases within the jurisdiction thereof shall, so far as the same is applicable, and not inconsistent with this act, apply to all proceedings under this act, and any order made by the Vice-Warden of the Stannaries may be enforced in the same manner in which orders made in proceedings within the ordinary jurisdiction of such court are enforced; and for the purpose of jurisdiction any company registered under this act engaged in working any mine within, and subject to, the jurisdiction of the Stannaries, shall be deemed to be resident within the Stannaries, and at the place where such mine is situate. It shall be competent for the Vice-Warden in any suit instituted against any shareholder or contributory of a company so registered, to authorise the service of process on such shareholder or contributory in any part of England or Wales; provided, that it shall be lawful for the Lord Warden to remit at once any cause or matter pending before him on appeal against any decree or order of the court made in pursuance of the power conferred upon it by this act for the winding up of such a company to the Court of Appeal in Chancery, which shall thereupon have power to hear and determine such appeal, and to make such order or orders therein as may seem fit.
99. Any two commissioners of bankruptcy, appointed by the Lord Chancellor of Great Britain, may, as respects the courts of bankruptcy in England, and the commissioners of bankrupt in Ireland may, as respects the courts of bankruptcy in Ireland, make rules as they respectively from time to time, but subject to the approval of the Lord Chancellors of Great Britain and Ireland respectively, think fit, for the purpose of regulating the proceedings in such courts for winding up companies; but, subject to such rules, the general practice of the courts of bankruptcy in England and Ireland respectively, in cases within the ordinary jurisdiction of such courts, shall, so far as the same is applicable, and not inconsistent with this act, apply to all proceedings under this act; and any order made by any commissioner of bankruptcy in such proceedings may be enforced in the same manner in which orders made in proceedings within the ordinary jurisdiction of such court are enforced.
100. The Lord Chancellor of Great Britain as respects the Courts of Chancery and Bankruptcy in England, the Lord Chancellor of Ireland as respects the Courts of Chancery and Bankruptcy in Ireland, the Court of Session in Scotland by act of sederunt as respects proceedings in such court, may make rules specifying the fees to be paid in respect of proceedings taken under the third part of this act for winding up a company in such courts respectively and the fees so paid in any court of chancery or bankruptcy shall be applied in the manner in which fees taken in such courts in ordinary proceedings are applied; and as respects fees to be paid in
the Stannaries, it shall be lawful for the ViceWarden to authorise fees to be taken not exceeding in number or amount the fees so authorised from time to time by the Lord Chancellor of Great Britain to be paid in courts of bankruptcy, and the council of the Prince of Wales, or the special commissioners for managing the affairs of the Duchy of Cornwall, as the case may be, may direct in what manner the monies arising from such fees are to be applied towards the annual expenses of the court of the Stannaries, or towards the payment or in augmentation of the present official salaries.
101. The district commissioners of the Court of Bankruptcy and the judges of the county courts in England who sit at places more than twenty miles from the General Post Office, and the commissioners of bankrupt and the assistant barristers and recorders in Ireland, and the sheriffs of counties in Scotland, shall be commissioners for the purpose of taking evidence under the third part of this act in cases where any company is wound up by the Court of Chancery in England or Ireland or by the court of session in Scotland; and it shall be lawful for such court to refer the whole or any part of the examination of any witnesses under the third part of this act to any such commissioner, although such commissioner is out of the jurisdiction of the court by which the order or decree for winding up the company was made; and every such commissioner shall, in addition to any power of summoning and examining witnesses, and requiring the production or delivery of documents, and certifying or punishing defaults by witnesses, which he might lawfully exercise as a district commissioner of the Court of Bankruptcy, judge of a county court, commissioner of baukrupt, assistant barrister, or recorder, or as a sheriff of a county, have in the matter so referred to him all the same powers of summoning and examining witnesses, and requiring the production or delivery of documents, and punishing defaults by witnesses, and allowing costs and charges and expenses to witnesses, as the court which made the order for winding up the company has; and the examination so taken shall be returned or reported to such last-mentioned court in such manner as it directs.
Voluntary Winding-up of Company.
102. A company may be wound up voluntarily, i. Whenever the period, if any, fixed for the duration of the company by the articles of association expires, or whenever the event, if any, occurs, upon the occurrence of which it is provided by the articles of association that the company is to be dissolved:
ii. Whenever the company in general meeting has passed a special resolution requiring the company to be wound up voluntarily, Whenever a company is wound up voluntarily the company shall, from the date of the commencement of such winding up, cease to carry on its business, except so far as may be required for the for the beneficial winding up thereof, but its corporate state and all its corporate powers shall, notwithstanding any provision to the contrary in its articles of association, continue until the affairs of the company are wound up.
103. Notice of any special resolution to wind up a company voluntarilly shall be given, as respects companies registered in England in the London Gazette, as respects companies registered in Scotland
New Statutes effecting Alterations in the Law.
in the Edinburgh Gazette, and as respects companies registered in Ireland in the Dublin Gazette.
104. The following consequences shall ensue upon the voluntary winding up of a company: i. The property of the company shall be applied in satisfaction of its liabilities, and, subject thereto, shall, unless it be otherwise provided by the articles of association, be distributed amongst the shareholders in proportion to their shares :
ii. Liquidators shall be appointed for the winding up the affairs of the company and distributing the property:
iii. The company in general meeting may appoint
iv. If one person only is appointed, all the pro-
vi. The liquidators may at any time after the
vii. The liquidators shall have all powers herein
before vested in official liquidators, and may exercise the same without the intervention of the court:
viii. All books, papers, and documents in the hands of the liquidators shall at all reasonable times be open to the inspection of the shareholders:
ix. When the creditors are satisfied, the liquidators shall proceed to adjust the rights of the contributories amongst themselves, and for the purposes of such adjustment they may make calls on all the contributories to the extent of their liability for any sums they may deem necessary, and they 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:
x. As soon as the affairs of the company are fully wound-up, the liquidators shall make up an account showing the manner in which such winding-up has been conducted, and the property of the company disposed of; and such account, with the vouchers thereof, shall be laid before such person or persons as may be appointed by the company to inspect the same; and upon such inspection being concluded the liquidators shall proceed to call a general meeting of the shareholders for the purpose of considering such account; but no such meeting shall be deemed to be duly held unless one month's previous notice,
specifying the time, place, and object of such meeting, has been published, as respects companies registered in England in the London Gazette, and as respects companies registered in Scotland in the Edinburgh Gazette, and as respects companies registered in Ireland in the Dublin Gazette:
xi. Such general meeting shall not enter upon any business except the consideration of the account; but the meeting may proceed to the consideration thereof, notwithstanding the quorum required by any regulation of the company to be present at general meetings is not present thereat; and if, on consideration, the meeting is of opinion that the affairs of the company have been fairly wound-up, they shall pass a resolution to that effect, and thereupon the liquidators shall publish a notice of such resolution, as respects companies registered in England in the London Gazette, and as respects companies registered in Scotland in the Edinburgh Gazette, and as respects companies registered in Ireland in the Dublin Gazette, and shall also make a return to the Registrar of Joint-Stock Companies of such resolution, and on the expiration of one month from the date of the registration of such return the company shall be deemed to be dissolved:
xii. If within one year after the passing of a resolution for a winding-up the affairs of the company such affairs are not wound-up, the liquidators shall immediately thereafter make up an account showing the state of the affairs and the progress which has been made in winding-up down to that date, and they shall add thereto a report stating the reason why the winding-up has not been completed, and a general meeting shall be called to consider the same, and so on from year to year until the winding-up of the affairs of the company is completed:
All costs, charges, and expenses properly incurred in the voluntary winding-up of a company, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims.
105. The voluntary winding-up of a company shall not prejudice the right of any creditor of such company to institute proceedings for the purpose of having the same wound-up by the court.
PART IV. Registration Office.
106. The registration of companies shall be conducted as follows: (that is to say)
i. The board of trade may from time to time appoint such registrars, assistant registrars, clerks, and servants as they may think necessary for the registration of companies under this act, and remove them at pleasure; ii. The board of trade may make such regulations as they think fit with respect to the duties to be performed by any such registrars, assistant registrars, clerks, and servants as aforesaid; iii. The Board of Trade may from time to time determine the place or places at which offices for the registration of companies are to be established Provided always, that there shall be at all times maintained in each of the three parts of the United Kingdom at least one such office, and that no company
New Statutes effecting Alterations in the Law..
shall be registered except at an office within that part of the United Kingdom in which by the memorandum of association the registered office of the company is declared to be established;
i. The Board of Trade may from time to time direct a seal or seals to be prepared for the authentication of any documents required for or connected with the registration of companies;
v. Every person may inspect the documents kept by the registrar of jo nt-stock companies; and there shall be paid for such inspection such fees as may be appointed by the Board of Trade, not exceeding one shilling for each inspection; and any person may require a copy or extract of any document or any part of any document, to be certified by the registrar; and there shall be paid for such certified copy or extract such fee as the Board of Trade may appoint, not exceeding sixpence for each folio of such copy or extract, or in Scotland for each sheet of two hundred words; and such certified copy shall be primâ facie evidence of the matters therein contained in all legal proceedings whatever: vi. The existing registrar, assistant registrars, clerks, and other officers and servants in the office for the registration of joint-stock companies, shall, during the pleasure of the Board of Trade, hold the offices and receive the salaries hitherto held and received by them, but they shall in the execution of their duties conform to any regulations that may be issued by the Board of Trade: vii. There shall be paid to any registrar, assistantregistrar, clerk, or servant that may hereafter be employed in the registration of joint-stock companies such slary as the Board of Trade may, with the sanction of the commissioners of the treasury, direct; viii. Whenever any act is herein directed to be done to or by the registrar of joint-stock companies, such act shall, until the Board of Trade otherwise directs, be done in England to or by the existing registrar of joint-stock companies or in his absence by the assistantregistrar, in Scotland to or by such officer as the Board of Trade may appoint, and in Ireland to or by the existing assistantregistrar of joint-stock companies for Ireland; but, in the event of the Board of Trade altering the constitution of the existing registry office, such act shall be done to or by such officer or officers and at such place or places with reference to the local situation of the registered offices of the companies to be registered as the Board of Trade may appoint.
PART V.-REPEAL OF FORMER ACTS, AND TEMPORARY PROVISIONS.
107. There shall be repealed,
i. The act passed in the eighth year of the reign of her present Majesty, chapter one hundred and ten;
ii. An act passed in the eleventh year of the reign of her present Majesty, chapter Seventyeight, intituled An Act to amend an Act for the Registration, Incorporation, and Regulation of Joint Stock Companies.
iii. The Limited Liabillity Act, 1855: But such repeal shall not take effect with respect to any company completely registered under the said act of the eighth year of her present Majesty until such company has obtained registration under this act, as herein-after mentioned.
108. The following acts: (that is to say)
i. An act passed in the eleventh year of the reign of her present Majesty, chapter forty-five, and intituled An Act to amend the Acts for facilitating the Winding-up of the Affairs of Joint Stock Companies unable to meet their pecuniary Engagements, and also to facilitate the Dissolution and Winding-up of Joint Stock Companies and other Partnerships: ii. An act passed in the thirteenth year of the reign of her present Majesty, chapter one hundred and eight, and intituled An Act to amend the Joint Stock Companies Windingup Act, 1848;
iii. An act passed in the eighth year of the reign of her present Majesty, chapter one hundred and eleven, and intituled An Act for facilitating the Winding-up the Affairs of Joint Stock Companies unable to meet their pecuniary Engagements;
iv. An act passed in the ninth year of the reign of her present Majesty, chapter ninety-eight, and intituled An Act for facilitating the Winding-up the Affairs of Joint Stock Companies in Ireland unable to meet their pecuniary Engagements:
shall not apply to companies registered under this act, nor to companies registered under the said act of the eighth year of the reign of her present Majesty, chapter one hundred and ten, from and after the date at which they have obtained registration under this act, as herein-after mentioned.
109. No repeal hereby enacted shall effecti. Anything duly done under any acts hereby repealed before such repeal comes into operation: my right acquired or liability incurred under any such acts before such repeal comes into operation:
iii. Any penalty, forfeiture, or other punishment incurred or to be incurred in respect of any offence againt any such acts committed before such repeal comes into operation :
iv. Any proceeding to be taken in the prosecution of any order for winding up a company made before such repeal comes into operation. Temporary Provisions.
110. Every company completely registered under the said act of the eighth year of her Majesty, chapter one hundred and ten, shall, on or before the third day of November, one thousand eight hundred and fifty-six, and any other company duly constituted by law previously to the passing of this act, and consisting of seven or more shareholders, may at any time hereafter, register itself as a company under this act, with or without limited liability, subject to this proviso, that no company shall be registered under this act as a limited company unless either a certificate of complete registration with limited liability under the Limited Liability Act, 1855, has been obtained by it, or an assent to its being so registered has been given by three-fourths in number and value of such of its shareholders as may have been present, personally or by proxy, in cases where proxies are allowed by the regulations of the company, at some general meeting summoned for that purpose.