And see Buckley, 4th ed., p. 227.

For other instances in which the Court has given leave under this section, see Buckley, 4th ed., pp. 228, 229. And for Forms under this section, see Palmer's Precedents, 3rd ed., p. 495.

From Western and Brazilian Telegraph Co. v. Bibby, 42 L. T. 821, it appears that leave to commence an action against a Company in liquidation should not be given on an ex parte application.

For the principles applicable to staying proceedings at the suit of an execution creditor against the estate of a trader for the winding-up_of which an order had been made under Act XXVIII. of 1865, see The Financial Association of India and China v. Pranjivandús Harjivandas, 3 Bom. H. C O. C. J. 25.

forwarded

137. When an order has been made for winding- Copy of up a Company under this Act, a copy of such order order to be shall forthwith be forwarded by the Company to the to Registrar. Registrar of joint stock Companies, who shall make

a minute thereof in his books relating to the Company.

Such order shall be deemed to be notice of discharge to the servants of the Company, except when the business of the Company is continued.

The first paragraph of this sec. corresponds verbatim with sec. 88 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, and sec. 109 of the Indian Companies" Act X. of 1866.

The first portion of the second paragraph gives the effect of Chapman's case, L. R. 1 Eq. 346; Shirreffs' Case, L. R. 14 Eq., 417.

The exception is taken from IN RE English Joint Stock Bank ex parte Harding. L. R. 3 Eq. 341. Cf. IN RE Northfield Iron Co., 14 L. T. 695; W. N. 1866, 253.

Captains and crews of sea-going vessels are entitled to be paid their wages in full, in priority to other creditors of a Company-although other servants are not so entitled. IN RE Calcutta Steam Tug Association, 2 Ind. Jur. N. S. 19.

138. Such Court may, at any time after an Power of order has been made for winding-up a Company, Court to stay proceedings. upon the application of any creditor or contributory of the Company, and upon proof to the satisfaction of the Court that all proceedings in relation to such winding-up ought to be stayed, make an order staying the same, either altogether or for a limited. time, on such terms and subject to such conditions as it deems fit.

Sec. 89 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, in which the words "by motion 'by motion" are inserted after "upon the application"; and sec. 110 of the Indian Companies' Act X. of 1866.

Effect of order on

limited by guarantee.

Cf. sec. 84 of Act XIX. of 1857.

"The section is not applicable for staying for a limited time or to a limited extent the proceedings in the winding-up. The Court can stay any particular proceedings by using its ordinary powers of control over the official liquidator.' Buckley, 4th ed., 231.

دو

p.

A petition to wind-up a Company by a person claiming to be a creditor may be restrained by injunction, when the debt is boná fide disputed, and the Company is solvent. Cercle Restaurant Co. v. Lavery, 18 Ch. D., 555, and Niger Merchants Co. v. Capper, ibid. 557, n.

139. When an order has been made for windingshare-capital up a Company limited by guarantee(i) and having a of Company capital divided 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 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.

Court may have regard

contributories.

Sec. 90 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, in which the words "and to be a debt" are followed by ("in England and Ireland of the nature of a specialty"), as to which see supra, secs. 11 and 39, and notes thereto; and sec. 111 of the Indian Companies Act X. of 1866, verbatim.

(i) See sec. 9 supra as to the memorandum of association and sec. 37 as to the articles of association of such a Company.

As to the effect of voluntary winding-up on the share capital of a Company limited by guarantee, see sec. 178 post.

140. The Court may, as to all matters relating to wishes of to the winding-up, have regard to the wishes of creditors or creditors or contributories as proved to it by any sufficient evidence, and may, if it thinks ɓt, direct meetings(i) of the creditors or contributories to be summoned, held and conducted in such manner as the Court directs, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the Court.

In the case of creditors, regard is to be had to the value of the debts due to each creditor, and, in the case of contributories to the number of votes conferred on each contributory by the regulations of the Company (ii).

Sec. 91 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 112 of the Indian Companies' Act X, of 1866, verbatim.

(i) See rules 43-45 post.

(ii) Sec. 193 post. A similar sec. as to winding-up under supervision. This section is not confined to cases where a winding-up order has been made, but applies also when a petition for winding up is before the Court. IN RE Chapel House Colliery Co., 24 Ch. Div., 259.

See the cases under this section enumerated and classified, Buckley, 4th ed., 232-235, where others besides the following are collected :--

Two creditors of a Company were under this section appointed liquidators in the place of an official liquidator who had been appointed by the Court, upon motion made on behalf of a very large majority of the unsecured creditors of the Company, who alone were interested m the realization of the assets. IN RE Association of Land Financiers, 10 Ch. D., 269.

A petition for winding-up presented by one bond-holder was dismissed with costs, it being opposed to the wishes of the bond-holders other than the petitioner. IN RE Uruguay, &c., Ry. Co. of Monte Video, 11 Ch. D., 372.

In IN RE Great Britain Mutual Life Assurance Society, 16 Ch. Div., 246, where a committee of holders of policies in the Society desired that the Court should exercise the power given to it by sec. 22 of the Life Assurance Companies' Act, 1870, of reducing the amount of the contracts of the Society instead of making a winding-up order, the Court of Appeal discharged the winding-up order which had been made by the Court below, in order that a meeting of policy-holders should be summoned in order that their wishes should be ascertained.

In IN RE Middlesbrough Assembly Rooms Co., 14 Ch. Div., 108. A winding-up order which had been made on the petition of a shareholder was discharged by the Court of Appeal, the winding-up being opposed to the wishes of the great majority of the shareholders. See this case supra.

In IN RE Haven Gold Mining Co., 20 Ch. Div., 151, the Company was ordered to be wound-up, on the petition of two shareholders, although the large majority of the shareholders desired to continue to carry it on, the Court being satisfied that the subject-matter of the business for which it had been formed had substantially ceased to exist.

See also IN RE German Date Coffee Co., 20 Ch. Div., 169.

In IN RE Great Western Coal Consumers' Co., 21 Ch. D., 769; 51 L. J. Ch. D., 743, a petition by the representatives of a deceased creditor which was opposed by the majority of the creditors in value was ordered to stand over for six months, or until the petitioners took steps to enforce a charge which the creditors had on part of the Company's property, the Company undertaking to give notice in writing of any other winding-up proceedings, and not to wind-up voluntarily.

Not only the number of the creditors and the amount of their debts, but also the reasons they assign for opposing a winding-up order should be considered, Ibid.

Official Liquidators.

of official liquidator.

141. For the purpose of conducting the proceed- Appointment ings in winding-up a Company and assisting the Court therein there may be appointed a person or persons to be called an official liquidator or official liquidators.

The Court may appoint such person or persons either provisionally or otherwise, as it thinks fit, to the office of official liquidator or official liquidators.

Resignations, removals, filling up vacancies and compensation.

In all cases, if more persons than one are appointed to the office of official liquidator, the Court shall declare whether any act hereby required or authorized to be done by the official liquidator is to be done by all any one or more of such persons.

The Court may also determine whether any, and what security (iii) is to be given by any official liquidator on his appointment.

If no official liquidator is appointed, or during any vacancy in such appointment, all the property of the Company shall be deemed to be in the custody of the Court.

A receiver shall not be appointed of assets in the hands of an official liquidator.

Sec. 92 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 113 of the Indian Companies' Act X. of 1866, verbatim; except the last paragraph, which is new, and as to which see Perry v. Oriental Hotel Co., L. R. 5 Ch., 420; and Campbell v. Compagnie Générale, 2 Ch. D., 181.

Cf. also sec. 87 of Act XIX. of 1857.

(i) See rules 8-19 post; as to liquidators in a voluntary winding up see sec. 177, and also sec. 185 post, and secs. 194-196 post, as to liquidators in a winding-up subject to supervision.

(ii) Sec. 134, supra.

(iii) Rule 10, post.

For forms of orders appointing official and provisional liquidators, and of the recognizance of the official liquidator and his sureties, see Forms Nos. 8-10 post.

The general rule of the Court is that, cæteris paribus, the person who is nominated by the petitioner will be appointed, " Buckley, 4th ed., 237. The wishes of the large majority of creditors as to the appointment of liquidators were consulted in IN RE Association of Land Financiers, 10 Ch. D., 269, where two creditors were appointed liquidators

The practice is to appoint the liquidator in Chambers, RE General Financial Co., 20 Ch. Div., 276.

Where two official liquidators are appointed, they must agree upon one solicitor to present both, ex parte Bass, 1 De G. and S., 722.

142. Any official liquidator may resign or be removed by the Court on due cause shown(i). Any vacancy in the office of an official liquidator appointed by the Court shall be filled up by the Court(ii). There shall be paid to the official liquidator such salary or remuneration, by way of percentage or otherwise, as the Court may direct; and, if more liquidators than one are appointed, such remuneration shall be distributed amongst them in such proportions as the Court directs(iii).

Sec. 93 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 114 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 90 of Act XIX. of 1857.

(i) Cf. sec. 185, post.

(ii) Sec. 185, 194 post, and rule 16, post.

(iii) Sec. 177 (c) post, and rule 18, post.

For the regulations in Eugland regarding the remuneration of official liquidators, see Buckley, 4th ed., 240.

In IN RE The New Fleming, New Alexandra, Narsi, and The Colaba Mill Companies (not reported), an application by summons by the official liquidators to have their remuneration increased from one to two per cent. on the amount of the assets realised by them, was on the 28th July 1882 refused by Bayley, J. The application was opposed by creditors to a large amount. It appeared that the applicants had originally offered and agreed to take one per cent. commission, and had been appointed on those terms. His Lordship, in delivering judgment, said that the liquidator's counsel had not relied upon the fact that the liquidators had done well for the Companies, no doubt in consequence of the decision of Giffard, V. C., IN RE Agra and Masterman's Bank, Cannan's claim, L. R. 7 Eq. 102, but had relied on what he stated were two precedents in which the Court had increased the remuneration of liquidators-IN RR Bombay Joint Stock Corporation and IN RE the Hemp and Jute Mill Co., the latter of which came before Mr. Justice Green in July 1879 (neither of which cases are reported). But in the opinion of Bryley, J. these cases had no application to the one before him. The practice in Bombay had been to fix remuneration of official liquidators on their appointment, and rule 17 of the rules framed by the Judges of Bombay in August 1866 was the one applicable to the present case.

The remuneration of the liquidators had been fixed on the 1st February 1879, the date of their appointment, and nothing that had since taken place rendered it, in his Lordship's opinion, at all just or equitable that the liquidators should be paid as from the commencement at the rate of two per cent. instead of at the rate at which they had agreed to do the work, and which unquestionably had not occupied the whole of their time, as they had undertaken the liquidation of another Company in June 1879.

The liquidators were directed to pay their own costs. The costs of the successful creditors in opposition to the summons were to be paid in full out of the assets of the Companies. Certain other opposing creditors were directed to bear their own costs, and the costs allowed as above were to be taxed as between party and party, and as if the matter had been a long cause in Court.

official

143. The official liquidator shall be described by Style and the style of the official liquidator of the particular duties of Company in respect of which he is appointed, and liquidator. not by his individual name. He shall take into his! custody, or under his control, all the property, effects and actionable claims to which the Company is or appears to be entitled, and shall perform such duties in reference to the winding-up of the Company as may be imposed by the Court(i).