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Re South Essex Gas Light Company, 6 W. R. 234.) Where an affidavit verifying the petition had been sworn before the petition was presented, the Master of the Rolls ordered the petition to be re-presented, the affidavit re-sworn and the order post dated. (Re Western Benefit Building Society, M. R., 33 L. J. Ch. 179.) Again, the Court has power to enlarge the four days allowed for filing the affidavit verifying the petition. (Re Patent Screwed Boot and Shoe Company, (32 Bea. 142, M. R.) On a petition to wind up voluntarily under the supervision of the Court, the Master of the Rolls granted an application that the affidavit in support which had not been filed within the four days after the petition was presented might be taken as sufficient primâ fácie evidence of the statements in the petition. (Re The Kentish Royal Hotel Company, 13 W. R. 448.)
In addition to the affidavit above mentioned, it is prudent in all cases to have distinct proof by affidavit of all the allegations in the petition in the ordinary way of verifying the statements in a petition. These affidavits should be settled by counsel and are sworn and filed, and an office copy taken by the petitioner's solicitor. In all Affidavit of cases an affidavit of service should be made, and that although the parties on whom the petition is served or some of them may appear at the hearing thereof. (Re Tring, Reading and Basingstoke
Railway Company, 3 De Gex & S.10.) It is sufficient where service is made on a member to state in the affidavit of service that such person is a member. (Re The Eastern Counties Railway Company, Ex parte Cooke, 3 De Gex & S. 148.) Where the Company appeared at the hearing by their secretary it was held that no affidavit of service was necessary. (Re The Great Western Railway of Bengal, 3 De Gex & S. 101.)
Forms of the affidavits of service and of the insertion of the advertisements will be found in the Appendix.
Upon application, a copy of the petition is to be furnished to every creditor or contributory who may require one.
Rule 5. Every contributory or creditor of the Company shall be entitled to be furnished by the solicitor to the petitioner, with a copy of the petition within twenty-four hours after requiring the same, on paying at the rate of fourpence per folio of seventy-two words for such copy.
All the above preliminaries being complete, briefs of the petition and affidavits are delivered to counsel, and the petition comes on to be heard in Court or before the vacation Judge at the place he appoints, as the case may be.
Before dealing with the last step of this part of the process it may be useful to mention that should affidavits be filed in opposition to the petition, if necessary they should be answered, and the deponents may be cross-examined. For the latter purpose should the petition come on it may be
ordered to stand over upon the application of either party, and either a special examiner is appointed for the purpose or the cross-examination takes place before one of the examiners of the Court. For the practice on cross-examination the reader will refer to Chapter XV.
All these matters being attended to, the petition Hearing. is heard by the Court.
If it has been postponed indefinitely, application must be made by counsel to have it reinstated in the paper and notice thereof is given to the Secretary of the Lord Chancellor or Master of the Rolls and the Secretary of the Vice Chancellor.
By sections 86 and 146 it is provided as follows:
86. Upon hearing the petition the Court may dismiss the Course to be same with or without costs, may adjourn the hearing con- pursued by ditionally or unconditionally, and may make any interim hearing order, or any other order that it deems just.
146. Where a Company is in course of being wound up Power of voluntarily, and proceedings are taken for the purpose of Court to having the same wound up by the Court, the Court may, if ceedings it thinks fit, notwithstanding that it makes an order direct- of voluntary ing the Company to be wound up by the Court, provide in winding up. such order or in any other order for the adoption of all or any of the proceedings taken in the course of the voluntary winding up.
In Chapter II. attention has been drawn to section 86 and to the full discretionary power vested in the Court to deal with the petition as it thinks just, but it may be well here to note the fact that the Court in the exercise of that power may either order the petition to stand over to ascertain
the result of any proceedings taken by the Company itself, may refer the matter to Chambers on an inquiry whether the circumstances exist authorising the Court to order the winding up of the Company, or may direct a meeting of the creditors or contributories of the Company to be held under section 91 for the purpose of ascertaining their wishes.
Cases in which the Court has exercised its discretion will be found in the Table of Cases.
As the two applications for winding up and appointment of a liquidator, generally in urgent cases come together, it may be well to draw attention to the power of the Court, under sect. 85, at any time after the presentation of the petition, to appoint a provisional official liquidator with or without notice to any person. The appointment of such provisional liquidator will be treated of in Chapter X, but is here mentioned to draw the attention of the practitioner thereto.
The order for winding up, if made, is drawn up by the Registrar on being bespoken by the petitioner's solicitor, and is passed and entered in the usual way. The stamp is £1. (See Rule 71 and Schedule 2 to same.) The form of the order will be found in Appendix.
EFFECT OF PETITION OR ORDER.
When a Company gets irretrievably into difficulties, a petition to wind up is presented not only with the view of obtaining an order for that purpose, but usually as quickly as possible to prevent creditors, who might be proceeding for the recovery of their debts, from obtaining an undue advantage over the other creditors, and inasmuch as the Act has declared by sect. 84 that the winding up shall be deemed to commence at the time of the presentation of the petition, it has further given authority to the Court immediately to stop by injunction the further prosecution of the action or proceeding. In the case of a Company formed and registered under the Act of 1862, or formed and registered under the Joint Stock Companies Acts, it is provided, by sect. 85, as follows:
85. The Court may, at any time after the presentation of Court may a petition for winding up a Company under this Act, and grant inbefore making an order for winding up the Company, upon the application of the Company, or of any creditor or contributory of the Company, restrain further proceedings in any action, suit, or proceeding against the Company, upon such terms as the Court thinks fit; the Court may also at any time after the presentation of such petition, and before the first appointment of liquidators, appoint provisionally an official liquidator of the estate and effects of the Company.