petition to wind it up he must first bring an action on the Bk. IV. Chap. 1. order, and obtain judgment against the company (e). A landowner who has a claim against a company for purchase-money and compensation in respect of lands taken by the company under the Lands Clauses Act, is not a creditor of the company until a conveyance has been executed (ƒ). An assignee of a debt is entitled to petition (g), and an executor of a creditor may present a petition before he has obtained probate of the will (h). A secured creditor may also present a petition without giving up his security or losing any of his rights (i); he may do so while an action to enforce his security is pending, and even after having obtained the appointment of a receiver (k). Sect. 3. holders. A debenture holder is entitled to present a petition if the Debenture company is indebted to him, and either principal (1) or interest (m) is in arrear (n). In Uruguay Central & Hygueritas Rail. Co. of Monte Video (o), the holder of an instrument described as a mortgage bond was held not entitled to a winding-up order, on the ground that he was not a creditor of the company, the covenant to pay being entered into by the company with the trustees of a covering deed, and not with the bond-holders themselves. In Exmouth Docks Co. (p), deposit of a debenture payable to (n) Melbourne Brewery and Distil- (0) 11 Ch. D. 372, explained in Olathe Silver Mining Co., 27 Ch. D. 278. (p) 17 Eq. 181, debentures issued under a Special Act. Sect. 3. Bk. IV. Chap. 1. and Herne Bay Waterworks Co. (q), it was held that the rights of the debenture holders were by the statute, under which the debentures were issued, limited to obtaining the appointment of a receiver, and that they were therefore not entitled to a winding-up order. But these cases have since been doubted, and it has been decided that if a holder of such debentures has obtained judgment against the company, and exhausted his statutory remedies as a debenture holder without obtaining payment of his debt, he is entitled to present a winding-up petition (r). Policy holders. Contributories. Alleged contributories. Under the Life Assurance Companies Act, 1870, the holder of a policy granted by a life assurance company may petition for the winding up of the company if it is insolvent, although the policy is not yet due (s). The right of a contributory to present a petition to wind up the company cannot be excluded or limited by the company's articles of association (t). The meaning of the word contributory will be examined hereafter; for the present purpose the term includes an alleged contributory (see § 74). But the legislature has not said what sort of allegation is to be regarded as sufficient; an admission by the petitioner that he is a contributory in respect of at least one share, seems, however, to be necessary (u). It may, however, be remarked, that several of the older cases in which orders were made under the Winding-up Act of 1848 on the petition of the subscribers to abortive companies could not be supported at the present day, upon the ground that the petitioners in them were contributories; if those cases are to be supported at all, it must be upon the ground that the petitioners claimed to be contributories, without being so in reality (x). (g) 10 Ch. D. 42, debentures issued under the Companies Clauses Consolidation Act, 1845. (r) Borough of Portsmouth Tram. Co. [1892], 2 Ch. 362, debentures issued under the Companies Clauses Consolidation Act, 1845. (s) 33 & 34 Vict. c. 61, § 21. A policy-holder includes an annuitant, see § 2. See, also, 35 & 36 Vict. c. 41, § 4, as to subsidiary companies. 1 Ch. 122. (u) Ship's Case, 2 De G. J. & Sm. 544; Times Fire Ass. Co., 30 Beav. 596; Continental Bank, W. N. 1867, pp. 114 and 178; 15 W. R. 548, and 16 L. T. 112. (x) That the petitioners in Ex parte Capper, 3 De G. & S. 1; Ex Sect. 3. 1867, § 40. In order, however, to put a stop to the improper practice of Bk. IV. Chap. 1. buying shares in a company, simply with a view to obtain a right to petition to wind up the company, it is in substance Companies Act, enacted that no contributory shall be capable of presenting a winding-up petition, unless the members are reduced below seven; or unless the petitioner is an original allottee of the shares in respect of which he petitions; or unless he or his wife, or a trustee for him or her has held and been registered in respect of such shares for six months during the eighteen months next before the presentation of the petition; or unless he has acquired them by the death of their former owner (y). Registration for six months is enough (z), and if the company has been ordered to register the petitioner, he need not be registered in fact (a). It is apprehended that this section does not apply to a shareholder petitioning under § 12 of the Companies Act, 1900 (aa). arrear of calls. A winding-up order may be made at the instance of a con- Member in tributory who has not paid his calls (b); but as a general rule the Court will not hear the petition until the calls have been paid, or the amount due paid into Court (c). A holder of fully paid-up shares in a limited company is Holders of fully paid-up shares not entitled to petition for a winding-up order unless he can in limited show that the company is in such a state of solvency that companies. there is a reasonable probability of sufficient assets being left for the shareholders to give him a tangible interest in having the company wound up (d). The fact that there would be a parte Cooke, ib. 148, and Ex parte Holinsworth, ib. 7, would not at the present time be held to be contributories, see Bright v. Hutton, 3 H. L. C. 341. (y) 30 & 31 Vict. c. 131, § 40. The petition need not, though it had better, state the fact, City and County Bank, 10 Ch. 470; Glendower Steamship Co., W. N. 1899, p. 14. (2) Wala Wynaad Indian Gold Mining Co., 21 Ch. D. 849. (a) Patent Steam Engine Co., 8 Ch. D. 464. Secus if no such order has been obtained, Re A Company [1894], 2 Ch. 349. (aa) See ante, p. 842. (b) Diamond Fuel Co., 13 Ch. D. (d) Thomas Edward Brinsmead & Sect. 3. Bk. IV. Chap. 1. surplus if calls were made in respect of shares which had been issued at a discount, was in one case held to be insufficient to entitle the petitioner to an order (e). When this case was decided it was doubtful whether calls could be made in respect of such shares, except for the benefit of creditors; but it is now settled that calls can be made for the purpose of adjusting the rights of the contributories (f). It is apprehended that holder of fully paid-up shares is entitled to petition under § 12 of the Companies Act, 1900, whether the company is solvent or not (ff“). Shareholder not on register. Scrip-holders. Building societies. A person who has been declared by the Court to be entitled to be a shareholder, but who, owing to the negligence of the company, has not been registered, is entitled to petition for a winding up (g). A scrip-holder is not entitled to petition for a winding-up order unless he is, or admits himself to be, a contributory (h); or unless there are surplus assets which he has a right to have distributed. Under the Building Societies Act, 1874, any member authorised by three-fourths of the members present at a general meeting of the society specially called for the purpose, and any judgment creditor for not less than fifty pounds, may petition to have the society wound up, either voluntarily under the supervision of the Court, or by the Court; but no other person may do so (i). Fuel Co., 13 Ch. D. 400; Rica Gold (e) Pioneers of Mashonaland 2 Ch. 230. (f) See Welton v. Saffery [1897], A. C. 299, settling the doubt raised by Lord Herschell in Ooregum Gold, &c., Co. v. Roper [1892], A. C. 125. (f) See ante, p. 842. (g) Patent Steam Engine Co., 8 Ch. D. 464. Secus if no order has been obtained, Re A Company [1894], 2 Ch. 349. (h) Littlehampton Steam Ship Co., 34 Beav. 256, and 2 De G. J. & S. 521, Turner, L. J., dissenting. See under the older Acts, Ex parte Capper, 3 De G. & Sm. 1. (i) 37 & 38 Vict. c. 42, § 32, sub-s. 4, and see Sunderland Building Soc., 21 Q. B. D. 349. Sect. 3. Industrial and Societies. The Industrial and Provident Societies Act, 1893, contains Bk. IV. Chap. 1. no provisions as to the persons who are entitled to present a petition to wind up societies governed by that Act; the provisions of the Companies Acts therefore apply (k). A petition to wind up a trustee savings bank may be pre- Trustee Savings sented by any person who is authorised by the Companies Acts to present a petition to wind up a company, or by the Commissioners for the reduction of the National Debt, or by a Commissioner appointed under the Trustee Savings Bank Act, 1887 (1). The following persons were held entitled to petition under the Windingup Acts of 1848 and 1849; and the decisions in their cases may be usefully referred to on questions arising under the Act of 1862: A scrip-holder of a provisionally registered railway company, who had not signed either the subscribers' agreement or the parliamentary contract (m); An original subscriber for shares in an abortive company, and a member of its provisional committee (n); A member of the managing committee of an abortive company, who had been compelled to pay the charges of the company's solicitor, but who had not taken any shares (o); A member of a company who had not paid his calls (p) ; A manager of a cost-book company, who was a creditor of the company for advances made by himself (9); A contributory resident abroad (r); The executors of a deceased member, though not members themselves (8); Where a petition was presented by a shareholder who had entered into an arrangement with his creditors under the Act, 7 & 8 Vict. c. 70, an order was refused, the trustees of the deed of arrangement not having been served (u). Banks. |