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Petitioner. quiries in Chambers, meets the practitioner at the
outset, and it would, primâ facie, appear that, as having the carriage of the order, he would be entitled to attend the proceedings, but not only is he now considered, after the appointment of an` official liquidator, as one of the general body of creditors or contributories amongst whom he may rank, but it was decided before the Act of 1862 that the Master had authority at any time, after the commencement of proceedings in his office, to discharge the petitioner from all further attendance in the matter. (Re The London and Manchester Direct Independent Railway Company, Ex parte Barber, 18 Law J. (N. S.) Ch. 245, 1 De Gex & S. 726.)
The provision for appointing a creditor's retive and his presentative was originally introduced into the
proceedings for winding up a Company by the Act of Parliament, 20 & 21 Vict. cap. 78 (August 1857), which Act was passed at a time when only a contributory could petition the Court of Chancery for winding up a Company not registered under the Act of 1856, cap. 47, and was made to amend the winding up Acts of 1848 and 1849. By such Act of 1857 it was provided that after advertisements for the appointment of a creditor's representative no action against the Company should be commenced or proceeded with except as therein mentioned, nor should execution be issued or proceeded with against the person or property of any
member of the Company without the leave of the Court. And, by the first section of that Act, it was provided that, at the meeting for the appointment of such representative, "it shall be lawful for two-thirds in value of the creditors present at such meeting, whose debts shall have been proved before the said Judge or Master, or who shall previously to such meeting have lodged an affidavit of their debt before him, and who would be entitled to vote in the choice of assignees under a bankruptcy by themselves or by some person authorized by any letter or writing under the hand of such creditor, and which letter or writing shall require no stamp duty to be paid thereon, to choose some person or persons to represent all the creditors of any such Company accordingly."
Under the Joint Stock Companies Act, 1856, in cases within the jurisdiction of the Court of Bankruptcy, it was enacted that it should be lawful in cases where the winding up took 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 took 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 assignee who had been appointed official liquidator by the Court.
The Act of 1862 contains no provision what
ever for the appointment of a creditors' representative, and the only provision in that behalf is contained in rule 61, above quoted.
By that rule, however, it will be seen that the Judge may appoint one or more of the contributories or creditors as he thinks fit to represent before him, at the expense of the Company, all or any class of the contributories or creditors on the questions therein mentioned.
In the absence of any provisions on the subject it is presumed that the Judge, in acting on the power thus vested in him, will either ascertain the wishes of the creditors or contributories, under sect. 91, or follow by analogy one of the two provisions above set out; the debts of creditors or number of shares of contributories, and the nominations of the respective parties proposed, being proved before him as under the Act of 1857 first above quoted. The exercise of the power is, however, quite discretionary in the Judge.
The words "or any class of the contributories or creditors" will be observed in the rule now under consideration; and, inasmuch as in many cases the interests of the various classes of the contributories or creditors may be antagonistic in the final winding up of the Company, (as, for instance, one class of contributories claiming to be indemnified by another, or one class of creditors claiming priority to another), such a provision may be of the utmost importance.
Having thus drawn attention to the provision for the appointment of a creditors' representative, it remains to be seen what are his duties when appointed.
In The Mexican and South American Mining Company (6 W. R. 561) the Master of the Rolls in the first instance, and subsequently the Lords Justices, decided that the creditors' representative was entitled to be present when the Master settled the list of contributories, Lord Justice Turner observing that creditors had an interest two ways in settling the list, first, to keep parties off the list, and secondly to place them on.
In The National Assurance and Investment Association, Ex parte Cotterill (32 L. J. Ch. 66), it was further decided that on an appeal by the official manager against an order removing a name from the list of contributories, the creditors' representative was not entitled to be heard, and that he ought to concur in the appeal unless the creditors are not substantially represented by the official manager, and that if he appeared separately he would not be entitled to his costs.
Again, in Re the Era Assurance Company (11 W. R. 320) Vice Chancellor Wood allowed the costs of the creditors' representative on attending to oppose a claim made against the Company, though such opposition was unsuccessful; but he refused to certify for counsel, and on appeal against so much of the order as refused the certificate
the Lord Justice Turner, on the appeal being dismissed without costs, made the following observations: "It seems to me right as a general rule (although it is of course impossible to lay down a general rule applicable to all cases and all circumstances), that where the creditors or contributories have common and equal interests the creditors' representative ought not to appear on the application, but should leave the case in the hands of the official manager. Where any question arises between the creditors and the contributories then the application is properly attended by the creditors' representative and by the official manager, one representing the creditors and the other the contributories." And further on in his judgment he said, "It has been already decided that upon settling the list of contributories the creditors' representative is entitled to attend, but there is a great distinction between settling the list of contributories and resisting a claim for debt. On settling the list of contributories the official manager has a very limited interest, as all he has to do is to get on the list of contributories the persons who are liable to contribute amongst themselves; but the creditors' representative has a very great interest, as by getting a particular person put on the list he makes that person liable to pay the debts due to the creditors. There is, therefore, a great distinction between settling the list of contributories and resisting a claim of debt. (See 32 L. J., Ch. 216.)