The English sec. continues thus:

"It shall not be necessary, where the personal representative of any deceased contributory is placed on the list, to add the heirs or devisees of such contributory, nevertheless such heirs or devisees may be added as and when the Court thinks fit." Under the Succession Act X. of 1865, sec. 179, as regards persons domiciled in India to whom that Act applies, all property, whether moveable or immoveable, vests in the executor or adininistrator. See also sec. 4 of the Probate and Administration Act V. of 1881.

(i) See sec. 126 supra, and rules 29-31, post.

Court to

149. The Court may, at any time after making Power of an order for winding-up a Company, require any require delicontributory for the time being settled on the list of very of contributories, trustee, receiver, banker or agent or property. officer of the Company to pay, deliver, convey, surrender or transfer forthwith, or within such time as the Court directs, to or into the hands of the official liquidator(i), any sum or balance(ii), books, papers(iii), estate or effects which happen to be in his hands for the time being, and to which the Company is prima facie entitled(iv).

Sec. 100 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 121 of the Indian Companies' Act X. of 1866, verbatim.

(i) Sec. 152, post.

(ii) Cf. sec. 214, post.

(iii) See sec. 162, post.

(iv) See Form No. 13, post.

"This section is applicable only to the contributories and officers of the Company. and ought not to be extended to include other persons," Buckley, 4th ed., 253.

any

payment of

150. The Court may, at any time after making Power of an order for winding-up the Company, make an Court to order(i) on any contributory for the time being settled order on the list of contributories directing payment to be debts by made, in manner in the said order mentioned, of contributory. monies due from him or from the estate of the person whom he represents to the Company, exclusive of any monies which he, or the estate of the person whom he represents, may be liable to contribute by virtue of any call made or to be made by the Court in pursuance of this part of this Act(ii).

The Court may, in making such order, when the Company is not limited, allow to such contributory, by way of set-off, any monies due to him or the estate which he represents from the Company on any independent dealing or contract with the Com

pany, but not any monies due to him as a member of the Company in respect of any dividend or profits.

Provided that, when all the creditors of any Company, whether limited or unlimited, are paid in full, any monies due on any account whatever to any contributory from the Company may be allowed to him by way of set-off against any subsequent call or calls(iii).

In the event of the winding-up of any limited Company, the Court, if it thinks fit, may make to any director or manager of such Company whose liability is unlimited the same allowance by way of set-off as under this section it may make to a contributory where the Company is not limited(iv).

The first three paragraphs correspond with sec. 101 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 122 of the Indian Companies' Act X. of 1866, verbatim. The last paragraph corresponds with sec. C of the English Companies' Act (30 and 31 Vic., c. 181), 1867.

Cf. also 11 and 12 Vic., c. 45, s. 66.

(i) See Form No. 13, post.

(ii) See sec. 151, post.

(iii) See sec. 61 (g) supra.

(iv) See sec. 7, supra.

As to the effect of this section and as to set-off in winding up generally, see Buckley, 4th ed., pp. 255, 256.

This question of set-off of a debt due from the Company against calls was fully considered by Jessel, M. R., in IN RE Whitehouse and Co, 9 Ch. D., 595, where it was held that when a limited Company is in voluntary liquidation, a contributory cannot set-off a debt due to him from the Company against calls made against him either by the Company before, or by the liquidator after, the resolution to wind-up.

The following conclusions may be derived from that case :

(a) Under sec. 38 of the English Companies' Act [which corresponds with sec. 61 supra], calls made in a winding-up, being calls for something unpaid on the shares, are not a debt due to the Company, but a contribution due by the member.

(b) Unpaid calls made before the winding-up, though a debt due to the Company, are not the less an amount unpaid on the shares in respect of which the member is liable, and therefore he must be liable to contribute all that is unpaid on his shares.

(c) The contribution due from the member is a contribution to the assets enforceable by the liquidator and not at all a debt, and there is no question of set-off as between calls, that is, the amount unpaid on the shares, and a debt due by the Company to the contributory.

(d) The 101st sec. of the English Act [which corresponds with the present section], raises the implication, though upon the principles above stated it is not really wanted, that there is no set-off to be allowed in the case of a limited Company for a sum of money due from the Company to a person liable to the Company,

(e) This section applies to a winding-up by the Court; to a winding-up voluntarily; and to a voluntary liquidation under the supervision of the Court.

See also IN RE General Works Co., Gill's case, 12 Ch. D., 755.

make calls.

151. The Court may, at any time after making an Power of order for winding-up a Company, and either before Court to or after it has ascertained the sufficiency of the assets of the Company, make calls(i) on, and order payment thereof by, all or any of the contributories, for the time being settled on the list of contributories to the extent of their liability, for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the Company, and the costs, charges and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves.

The Court may, in making a call, take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the

same(ii).

Sec. 102 of the English Companies' Act (25 and 26 Vic., .. 89), 1862; and sec. 123 of the Indian Companies' Act X. of 1866, verbatim.

Cf. also sec. 79 of Act XIX. of 1857.

(i) See sec. 166, infra; rules 33-35, infra.

(ii) Sec. 177 (i) post, calls in voluntary winding-up.

See sec. 61, supra, and note thereto, with reference to the liability of present and past members.

As to interest on calls if not paid, see sched. I, table A, el. 6, post.

"Persons who are on the register of shareholders at the commencement of the winding-up, having thereby incurred a primâ facie legal liability, are not entitled to resist the making of a call on the ground that they assert a right to have their names removed from the list; but their remedy is to apply for the suspension of the operation of the call as against themselves," Buckley, 4th ed., 259.

order pay.

152. The Court may order any contributory, Power of purchaser or other person from whom money is due Court to to the Company to pay the same into the Bank of ment into Bengal, the Bank of Madras or the Bank of Bombay, Bank. as the case may be, or any branch thereof respectively, to the account of the official liquidator instead of to the official liquidator; and such order may be enforced(i) in the same manner as if it had directed payment to the official liquidator (ii).

Regulation of account

with Court.

Provision

presentative

Sec. 10% of the English Companies' Act (25 and 26 Vic., e. 89), 1862, substituting the Bank of Bengal, Madras or Bombay for "the Bank of England or any branch thereof" in that Act; and sec. 121 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 82 of Act XIX. of 1857.

(i) See rule 38, post.

(ii) See sec. 149, supra, and rules 11, 32, 36-39, post.

153. All monies, bills, hundis, notes and other securities paid and delivered into the Bank of Bengal, the Bank of Madras, or the Bank of Bombay, or any branch thereof respectively, in the event of a Company being wound up by the Court, shall be subject to such order and regulation for the keeping of the account of such monies and other effects, and for the payment and delivery in, or investment and payment and delivery out, of the same as the Court may direct(i).

Sec. 104 of the English Companies' Act (25 and 20 Vic., c. 89), 1862, substituting the Bank of Bengal, Madras and Bombay for "the Bank of England or any branch thereof"; and sec. 125 of the Indian Companies' Act X. of 1866, adding the word "hundis,"

(i) See rules 36-41 post.

154. If any person made a contributory as in case of re- personal representative of a deceased contributory contributory makes default in paying any sum ordered to be paid not paying by him, proceedings may be taken for administering the property of such deceased contributory, whether moveable or immoveable, or both, and of compelling payment thereout of the monies due(i).

monies ordered.

Order

conclusive evidence.

Sec. 105 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, substituting moveable and immoveable property for "personal and real estates" in that Act; and sec. 126 of the Indian Companies' Act X. of 1866, verbatim.

(i) See secs. 126, and 144 (g) supra.

155. Any order made by the Court in pursuance of this Act upon any contributory shall, subject to the provisions herein contained for appealing against such order (i), be conclusive evidence that the monies, if any, thereby appearing to be due or ordered to be paid are due; and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons and in all proceedings whatsoever.

Sec. 106 of the English Companies' Act (25 and 26 Vic., c. 89, 1862, which however concludes thus: "with the exception of proceedings taken against the real estate of any deceased contributory, in which case such order shall ouly be prima facie evidence for the purpose of charging his real estate, unless his heirs or devisees were on the list of contributories at the time of the order being made"; and sec. 127 of the Indian Companies' Act X. of 1866, verbatim.

(i) Sec. 169, post.

See note to sec. 148, supra.

156. The Court may fix a certain day or certain Court may days on or within which creditors of the Company creditors not are to prove their debts or claims, or to be excluded proving from the benefit of any distribution made before within cersuch debts are proved.

Sec. 107 of the English Companies' Act (25 and 26 Vic.. c. 89), 1862; and sec. 128 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 83 of Act XIX. of 1857.

See rules 20-28 infra.

In IN RE Kit Hill Tunnel ex parte Williams, 16 Ch. D., 590, a secured creditor, who had not assessed the value of his security, was allowed to come in and prove for the unsecured balance of his debt, on the terms of his disturbing no past dividend; and see Hicks v. May, 13 Ch. Div., 236.

In the English Companies' Act, 1862, there follows sec. 108, which relates to proceedings in the Court of the Vice-Warden of the Stannaries on proof of debts.

1

tain time.

of contribu

157. The Court shall adjust the rights of the Court to contributories amongst themselves, and distribute adjust rights any surplus that may remain amongst the parties tories. entitled thereto.

Sec. 109 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 129 of tho Indian Companies' Act X. of 1866, cerbatim.

Cf. sec. 85 of Act XIX. of 1857.

Under this section the Court will not enforce equities which persons, who, as tortfeasors (being also contributories) have been ordered to pay money under section 214, post, may have against other persons, who happen also to be contributories, to compel them to make good the money so ordered to be paid: the Court will only adjust the rights of contributories qui contributories. IN RE Alexandra Palace Co., 23 Ch. D., 297.

Notwithstanding a limitation in the memorandum of association of a mutual insurance Company upon the liability of its members as members, they may be liable as insurers or as assured beyond that limit. See Lion Assurance Association v. Tucker, 12 Q. B. Div., 176, referred to supra, p. 8.

158. The Court may, in the event of the assets Court to being insufficient to satisfy the liabilities, make an order costs. order as to the payment out of the estate of the Company of the costs, charges and expenses incurred