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up to be
made by petition.
COMMENCEMENT OF PROCEEDINGS.
In what Manner.
Having thus ascertained by what Court and under what circumstances, and at whose instance, Companies are to be wound up, we proceed with the all important point to the practitioner, viz., the steps to be taken to attain that object, and if attained to carry it out.
The application to the Court is to be by petition.
82. Any application to the Court for the winding up of a for winding Company under this Act shall be by petition; and it may be presented by the Company, or by any one or more creditor or creditors, contributory or contributories of the Company, or by all or any of the above parties, together or separately; and every order which may be made on any such petition shall operate in favour of all the creditors and all the contributories of the Company in the same manner as if it had been made upon the joint petition of a creditor and a contributory.
A general form of the petition will be found in the Appendix of Forms, at the end of this Volume, but each petition must be adapted to the circumstances of the case, and should be settled by counsel who will see that all the circumstances authorising the Court to make the order are properly set out. The first of the general orders of
11th November, 1862, provides for the title of the petition as follows:
1. Every petition for the winding up of any Company by the Court, or subject to the supervision of the Court, shall be intituled in the matter of "The Companies' Act, 1862," and of the Company to which such petition shall relate, describing the Company by its most usual style or firm.
The petition, when prepared, must be engrossed Presentation in duplicate on brief, and is to be marked at the left hand top corner of the front sheet, if intended to be heard before one of the ViceChancellors, "Lord Chancellor, Vice-Chancellor (Wood) ;" if intended to be heard before the Master of the Rolls "Master of the Rolls." The petition is usually signed by the petitioner and attested by his solicitor, but there is no rule requiring this, and it would seem that the affidavit afterwards required as to the truth of the statements in the petition is sufficient proof that the petition is presented by the petitioner. When duly prepared and signed, the petition must be stamped with a £1 adhesive stamp, and with the duplicate presented in the first of the above mentioned cases to the Lord Chancellor's Secretary, in Quality Court, Chancery Lane, or in the latter to the Secretary of the Master of the Rolls, in Rolls Yard. It is not now necessary before the petition is presented to search at both the offices above mentioned, to ascertain whether any prior petition to wind up the same Company has been presented at either office, as petitions may now be
Advertisement of petition.
presented concurrently before the Master of the Rolls and the Vice Chancellors. If the petition is presented at a time when the petition days are known to the Secretary, he will answer the petition (usually by the day following its presentation), for a certain petition day to be fixed by the solicitors, or if the petition days are unknown, as during the Vacations, the petition will be answered for the next petition day, under which circumstances the petition will be heard either on the first petition day of the ensuing sitsings of the Court, or in the vacation on a special day to be fixed by the Judge upon application through his Chief Clerk. In the vacations directions will always be found at the chambers of the Vacation Judge when and where any application may be made to him. It is obvious to the practitioner that the petition if presented in Vacation time should be marked for the Vacation Judge.
Before the petition is heard it must be advertised in The London Gazette and in one or two newspapers, as provided by the following Rules of the order of 11th November, 1862 :
2. Every petition shall be advertised seven clear days before the hearing as follows:
(1). In the case of a Company whose registered office, or if there shall be no such office, then whose principal, or last known principal place of business is or was situate within ten miles from Lincoln's Inn Hall, once in the "London Gazette," and once at least in two London daily morning newspapers.
(2). In the case of any other Company, once in the
"London Gazette," and once at least in two local newspapers circulating in the district where such registered office, or principal, or last known principal place of business. as the case may be, of such Company is or was situate.
The advertisement shall state the day on which the petition was presented, and the name and address of the petitioner, and of his solicitor and London agent (if any).
The form of the advertisement will be found in Service of petition. the Appendix. The petition is also to be served in manner set out in the following rule:—
3. Every such petition shall, unless presented by the Company, be served at the registered office, if any, of the Company, and if no registered office, then at the principal or last known principal place of business, of the Company, if any such can be found, upon any member, officer, or servant of the Company there, or in case no such member, officer, or servant can be found there, then by being left at such registered office or principal place of business, or by being served on such member or members of the Company as the Court may direct; and every petition for the winding up of a Company subject to the supervision of the Court, shall also be served upon the liquidator (if any) appointed for the purpose of winding up the affairs of the Company.
Under this rule where the office of the Company was shut up, the Court has ordered service of the petition to be effected on the solicitor of the Company and one of the directors, a copy of the petition having been put into the letter box of the late office. (Re London and Westminster Wine Company, Limited, 12 W. R. 6.) In another case service was ordered to be made on any five directors. (Re Unity General Assurance Company, 11 W. R. 355.)
In the ordinary course, unless the petitioner is at hand, the advertisement and service of the peti
Affidavit, verifying petition.
tion will be the first matters taking attention, but at the same time and within four days of the presentation of the petition an affidavit verifying its contents must be filed. If the petitioner is at hand, he may make the affidavit immediately after the petition is presented. Rule 4 provides as follows:
4. Every petition for the winding up of any Company by the Court, or subject to the supervision of the Court, shall be verified by an affidavit referring thereto, in the form or to the effect set forth in Form No. 2 in the third schedule hereto; such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the Company, by some director, secretary, or other principal officer thereof; and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition.
The form of the affidavit will be found in Appendix.
The affidavit is filed at the Record and Writ Clerks' Office, and an office copy is taken by the petitioner's solicitor. The same stamps are payable as in a Chancery suit.
Any error in the advertisement or in the filing of the affidavit may, unless remedied, invalidate the proceedings. Where the petition had not been advertised seven clear days, the Court allowed the petition to stand over to be re-advertised. (Re The London and Westminster Wine Company Limited, 12 W. R. 44.) Leave to amend the petition has been refused by V. C. Kindersley.