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After the list of contributories is settled and certified, the Court has power at once to make a call upon those contributories who, for the time being, have been settled on such list.
Sect. 102. The Court may, at any time after making an Power of order for winding up a Company, and either before or after it Courts to has ascertained the sufficiency of the assets 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, 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.
The liability of the contributories to the payment of calls is governed by the sections referred to at the beginning of Chapter XI., the settlement of the list of contributories in its various classes depending upon such liability.
Sect. 75. The liability of any person to contribute to the Nature of assets of a Company under this Act, in the event of the same liability of being wound up, shall be deemed to create a debt (in England and Ireland of the nature of a specialty) accruing due from such person at the time when his liability commenced,
Effect of order on
but payable at the time or respective times when calls are made as hereinafter mentioned for enforcing such liability; and it shall be lawful in the case of the bankruptcy of any contributory to prove against his estate the estimated value of his liability to future calls as well as calls already made. 90. When an order has been made for winding up a Company limited by guarantee and having a capital divided share capital into shares, any share capital that may not have been called up shall be deemed to be assets of the Company, and to be a debt (in England and Ireland of the nature of a specialty) due to the Company from each member to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the Court.
of Company limited by guarantee.
order pay. ment into bank.
103. The Court may order any contributory, purchaser, or other person from whom money is due to the Company to pay the same into the Bank of England 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.
105. If any person made a contributory as personal case of repre- representative of a deceased contributory makes default contributory 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.
not paying monies ordered.
Order conclusive evidence.
106. Any order made by the Court in pursuance of this Act upon any contributory shall, subject to the provisions herein contained for appealing 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.
General Rules.- Calls.
33. Every application to the Judge to make any call on
the contributories or any of them, for any purpose authorised by the said Act, shall be made by summons, stating the proposed amount of such call; and such summons shall be served, four clear days at the least before the day appointed for making the call, on every contributory proposed to be included in such call; or if the Judge shall so direct, notice of such intended call may be given by advertisement.
34. When any order for a call has been made, a copy thereof shall be forthwith served upon each of the contributories included in such call, together with a notice from the official liquidator specifying the amount or balance due from such contributory (having regard to the provisions of the said Act) in respect of such call; but such order need not be advertised unless, for any special reason, the Judge shall so direct.
35. At the time of making an order for a call, the further proceedings relating thereto shall be adjourned to a time subsequent to the day appointed for the payment thereof, and afterwards from time to time so long as may be necessary; and at the time appointed by any such adjournment, or upon a summons to enforce payment of the call, duly served, and upon proof of the service of the order and notice of the amount due, and nonpayment, an order may be made for such of the contributories who have made default, or of such of them against whom it shall be thought proper to make such order to pay the sum which by such former order and notice they were respectively required to pay, or any less sum which may appear to be due from them respectively.
38. All orders for payment of calls, balances, or other monies due from any contributory or other person shall direct the same to be paid into the Bank of England to the account of the official liquidator of the Company, unless on account of the smallness of the amount or other cause it shall, having regard to the amount of the security given by the official liquidator, be thought proper to direct payment thereof to the official liquidator. Provided that where any such order has been made directing payment of a specific sum into the Bank of England, in case it shall be thought proper for the purpose of enabling the official liquidator to issue execution or take other proceedings to enforce the payment thereof or for any other reason, an order may, either before service of such former order or after the time thereby fixed for payment, be made, without notice, for payment of the same sum to the official liquidator.
39. At the time of the service of any order for payment into the Bank of England, the official liquidator shall give to the party served a notice to the purport or effect set forth in Form No. 40 in the third schedule hereto, for the purpose of informing him how the payment is to be made; and before the time fixed for such payment, the official liquidator shall furnish the cashier of the Bank of England with a certificate to the purport or effect set forth in form No. 41 in the third schedule hereto, to be signed by such cashier and delivered to the party paying in the money therein mentioned.
40. For the purpose of enforcing any order for payment of money into the Bank of England, an affidavit of the official liquidator to the purport or effect set forth in No. 43 in the third schedule hereto shall be sufficient evidence of the non-payment thereof.
Under sect. 75 all unpaid calls are to be deemed specialty debts, and so is share capital not called up in a Company limited by guarantee pursuant to sect. 90.
PART I.-For what purpose, on what
persons, and to what extent a Call may be made.
In making a Call authorized by sect. 102, the chief clerk first considers the persons on whom he can make it. Prima facie they will be the persons 'for the time being placed upon the list of contributories, but inasmuch as those persons may be only partially liable, or liable as the representatives of others, it has to be ascertained-1st. For what purpose, that is to say, to pay what debts or liabilities of the Company the call is required. 2nd. The persons liable to payment of such debts or liabilities of the Company; and 3rd, if such persons are only liable to a limited extent, to what
extent, and to pay what part of the debts and liabilities they are so liable.
call may be
1st. For what purpose, and to pay what debts For what a and liabilities of the Company, a call may be made. made. By sect. 102 the Court may make a call for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the Company, and the costs, charges, and expences of winding and for the adjustment of the rights of the contributories inter se. What is included in the debts and liabilities of the Company? Exclusive of common trade debts, it has been decided that in this category is included interest on specialty debts, costs, and money borrowed by the directors and applied for the benefit of the Company. On the other hand it has been decided that calls could not be made for payment of money borrowed by the directors and debts incurred in excess of their powers where not confirmed by a general meeting; interest on simple contract debts (but see rule 26), and solicitors' costs where there have been laches. See Table of Cases. The costs, charges, and expences have also to be provided for. In Ex parte Dale, Re Wolverhampton, Chester, &c., Railway, (1 De Gex M. & G. 513), it was held that "where the Master had estimated Estimate. the total amount for which the contributories were liable, he might make a call for that amount even where the costs had not been taxed or the exact amount of liabilities ascertained, and also that he