sued as nominal defendant on behalf of the Company, is returned unsatisfied;

(d) whenever it is otherwise proved to the satisfaction of the Court that the Company is unable to pay its debts.

Sec. 199 of the English Companies' Act (25 and 26 Vic., e. 89), 1862, adding in the first paragraph the words "or Act of the Governor-General in Council," and in clause (1) substituting the words "British India" for "United Kingdom"; in clause (4) (a) omitting the words "at law or in equity" after "is indebted," and substituting "five hundred rupees" for "fifty pounds"; in clause (4) (b) omitting the word "action"; in clause (4) (c) omitting the words "in England or Ireland" after "whenever," and omitting the two clauses in the section in the English Act which relate to proceedings issued out of the Court of the Vice-Warden of the Stanuaries, and out of the Scotch Courts respectively; and sec. 213 of the Indian Companies' Act X. of 1866, verbatim.

(i) See sec. 128 (c), supra, p. 98.
(ii) See secs. 221, 222, supra.
(iii) See sec. 63, supra, 58.

(iv) See sec. 173 et seqq. supra.
(v) See sec. 191 et seqq. supra.
(vi) Cf. sec. 128, supra, p. 98.
(vii) Cf. sec. 129, supra, p. 101.

For the meaning of "unregistered Company," sce Buckley, 4th ed., 385, 386.

"Except Railway Companies," &c. See IN RE Brentford and Isleworth Tramways Co., 26 Ch. D., 527; where an unregistered tramway Company incorporated by a special Act, was held not to fall within this exception, and was therefore wound-up under this section.

In IN RE Commercial Bank of India, L. R. 6 Eq. 517, a joint stock Company formed in India, and incorporated by registration under the Indian Law, and having its principal place of business in India, with an agent and a branch office in England, was wound-up under the English Companies' Act of 1862. This case was approved in IN RE Matheson Brothers, 27 Ch. D., 225.

See also IN RE Calcutta Jute Mills Co., I. L. R. 5 Calc., 888, set out supra, p. 100, where IN RE Agra and Masterman's Bank, 1 Ind. Jur. N. S., 335, was distinguished. In this latter case it was held that a joint stock Company, established by deed and Royal Charter in England, under the provisions of the English Joint Stock Companies' Act, 7 and 8 Vic., c. 110, with agencies in different parts of the world, and registered under the English Companies' Act (25 and 26 Vic., c. 89), 1862, but not under any Indian Act, having its principal place of business in London, though having a principal branch in Calcutta, to which the other branches were subordinate, was not such a Company as could be wound-up as an unregistered Company" under the Indian Companies' Act X. of 1866, but should be wound-up by the Court of Chancery; and an order of the Court of Chancery under the English Act of 1862, winding-up the Company in England, had the effect of winding-up all the branches of the Company in England and elsewhere.

This section must apply to something which can lawfully be formed. If the case falls within the terms of the 4th section (supra) the formation of the Company is prohibited, and it is impossible to suppose that the Legislature could have intended that a Company which is prohibited from being formed under the 4th section can be wound-up under the 199th (of the English Act) with all the consequences which follow from it, including the application of the 38th section (of the English Act), and the liability of the member of the unlawful association to contribute. On authority and principle therefore, such an association cannot be wound1-up. See per Jessel, M. R., IN RE Padstow Total Loss and Collision Assurance Society, 20 Ch. Div., 137; 51 L. J., Ch. Div., 344, referred to supra, p. 4.

members."

In IN RE Bolton Benefit Loan Society, 12 Ch. D., 679, it was held by "Consisting of Jessel, M. R., on a creditor's petition for the winding-up of an unregis- more than seven tered Loan Society formed under 3 and 4 Vic.. c. 110, the members of which formerly exceeded seven, but at the time of the petition were only four, that having regard to sections 199 and 200 of the Companies' Act, 1862, a winding-up order could not be made when the number of members had, at the date of the petition, fallen below seven. Upon his Lordship's suggestion, however, the petition was ordered to stand over for an action to be commenced on which a decree for dissolution might be made as in the case of a partnership, which was accordingly done, and an order made for the dissolution of the Society and the winding-up of its affairs.

As to Benefit Building Societies and other Companies which may be wound-up under this section, see Buckley, 4th ed., 386 et seqq. and as to the effect of a winding-up order on the position of members of a Building Society registered under the Building Societies' Act, 1874, sce Brownlie v. Russell, 8 Ap. Ca., 235.

In Rudow v. Great Britain Mutual Life Assurance Society, 17 Ch. Div., 600, the Court of Appeal held that when proceedings are pending for winding-up an unregistered Company, all the provisions of Part IV. of the Companies' Act, 1862, other than those expressly excepted, are applicable; but under the circumstances of the case they declined to exercise the discretion conferred by sec. 85 of that Act with reference to staying proceedings.

contributory

244. In the event of an unregistered Company Who to be being wound-up, every person shall be deemed to deemed a be a contributory (i) who is liable to pay or contribute in the event to the payment of any debt or liability of the Com- of Company pany, or to pay or contribute to the payment of any being woundsum for the adjustment of the rights of the members amongst themselves, or to pay or contribute to the payment of the costs, charges and expenses of winding-up the Company.

Every such contributory shall be liable to contribute to the assets of the Company in the course of the winding-up all sums due from him in respect of any such liability as aforesaid.

In the event of the death or insolvency of any contributory, the provisions herein before contained with respect to the personal representatives, heirs and devisees of a deceased contributory(ii), and to the assignees of an insolvent contributory(iii), shall apply.

up.

Power of Court to restrain further

Sec. 200 of the English Companies' Act (25 and 26 Vic., 3. 89), 1862, omitting from the last paragraph, after “insolvency of any contributory," the words "or marriage of any female contributory," and after "assignees of a bankrupt or insolvent contributory" the words "and to the husband of married contributories"; and sec. 211 of the Indian Companies' Act X. of 1866, verbatim.

(i) See secs. 61, 124, 154, 240 (e).

(ii) Sec. 126, supra, p. 96.

(iii) Sec. 127, supra, p. 97.

Per James, L. J., IN RE European Society Arbitration Acts, ex parte Liquidators of the British Nation Life Assurance Association, 8 Ch. Div., 708, The plain meaning of the Act is a legal or equitable liability to contribute in the character of a partner; a person who has not taken shares may have become bound in equity to the Company to take shares ; a person who has by some device or contrivance got rid of his shares, may be made to take them again. These are instances of the equitable liability to which the Act refeis." A debtor of the Company, or a cestui que trust of shares in the Company, or an officer of the Company who has misappropriated its assets, are not contributories and liable to pay money as such, ibid.

But promoters of a Company and persons who have transferred shares into the names of nominees have in several instances been held liable as contributories, see Buckley, 4th ed., 391, 392.

This section does not contain any provision for the exoneration of past members, such as is contained in sec. 61, supra, p. 53.

245. The Court may, at any time after the making of an application for winding-up an unregistered Company, and before making an order for proceedings. winding-up the Company, upon the application of any creditor of the Company, restrain further proceedings in any suit or proceeding against any contributory of the Company, or against the Company, as hereinbefore provided), upon such terms as the Court thinks fit.

Sec. 201 of the English Companies' Act (25 and 26 Vie., c. 89), 1862, substituting "the making of an application for winding-up" instead of "the presentation of a petition for winding-up" in that section, and omitting the word "action" before "suit"; and sec. 215 of the Indian Companies' Act X. of 1866, verbatim.

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

(i) See secs. 134, 241, supra, and sec. 248, post.

As to the effect of the word "proceeding see Couch, C. J., in Narayan Shamji v. Gujarat Trading Co., 3 Boш. H. C. O. C. J. 23.

Per Jessel, M R., in Rudow v. Great Britain Life Assurance Society, 17 Ch. Div., 611, 612. "That 201st section [in the English Act] was necessary, because in the case of an unregistered Company a creditor might sue a contributory as well as the Company. The 85th section [section 134, supra] in terms applies only to a registered Company, and authorizes the making an order on the application of the Company, a

creditor, or a contributory. The 201st section does not empower the Court to make an order on the application of the Company, but on the application of a creditor only, and it restrains proceedings against the contributory or Company. The order to be made is for a different purpose, and on the application of a different person from the order mentioned in section 85, and standing alone, without the subsequent section, which I am going to mention, I think this section would still be held not to interfere with the application of the 85th section. But any question on that part of the Act is got rid of by the provisions of the 204th section [sec. 248, infra]. Therefore it is quite plain that so far the 85th section is made applicable to an unregistered Company." 246. Where an order has been made for wind- Effect of ing-up an unregistered Company, in addition to the order for provisions hereinbefore contained(i) in the case of Company." Companies formed under this Act, it is hereby further provided that no suit shall be commenced or proceeded with against any contributory of the Company in respect of any debt of the Company, except with the leave of the Court and subject to such terms as the Court may impose.

Sec. 202 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, adding the words "action, or other legal proceeding" after "suit"; and sec. 216 of the Indian Companies' Act X. of 1866.

Cf. sec. 72 of Act XIX. of 1857 as to which see Narayan Shamji v. Gujarat Trading Co., 3 Bom. H. C. O. C. J., 23.

(i) See secs. 136, 242, supra, and sec. 248, infra.

winding-up

247. If any unregistered Company has no power Provision in to sue and be sued in a common name, or if, for case of unregistered any reason, it appears expedient, the Court may, by Company. the order made for winding-up such Company or by any subsequent order, direct that all such property, moveable and immoveable, including all interests, claims and rights in to and out of property, moveable and immoveable, and including actionable claims, as may belong to or be vested in the Company, or to or in any person or persons on trust for or on behalf of the Company, or any part of such property, is to vest in the official liquidator or official liquidators by his or their official name or names; and thereupon the same or such part thereof as may be specified in the order shall vest accordingly, and the official liquidator or official liquidators may, in his or their official name or names, or in such name or names, and after giving such indemnity, as the Court directs, bring or defend any suits or other legal proceedings relating to any property vested in

Provisions of

Act cumula

him or them, or any suits or other legal proceedings necessary to be brought or defended for the purposes of effectually winding-up the Company and recovering the property thereof.

Sec. 203 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, substituting "moveable and immoveable" for "real and personal" and "actionable claims" for "things in action," and omitting the word "actions" before "suits" in that section; and sec. 217 of the Indian Companies' Act X. of 1866, substituting "actionable claims" for "things in action" in that section.

248. The provisions made by this Part of this this Part of Act with respect to unregistered Companies shall be deemed to be made in addition to, and not in restriction of, any provisions hereinbefore contained(i) with respect to winding-up Companies by the Court.

tive.

The Court or official liquidator may, in addition to anything contained in this Part of this Act, exercise any powers or do any act in the case of unregistered Companies which might be exercised or done by it or him in winding-up Companies formed under this Act; but an unregistered Company shall not, except in the event of its being wound-up, be deemed to be a Company under this Act, and then only to the extent provided by this Part of this Act.

Sec. 204 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 218 of the Indian Companies' Act X, of 1866, verbatim.

(i) See secs. 124-172 and 197-219, supra.

The direction in this section that "an unregistered Company shall not, except in the event of its being wound-up, be deemed to be a Company under this Act," is not intended to confine the application of the Act to a Company which has been actually ordered to be wound-up, but applies to a case where proceedings are pending for winding up an unregistered Company. Rudow v. Great Britain Mutual Life Assurance Society, 17 Ch. Div., 601. See this case further referred to in the note to sec. 245, supra.

PART IX.

MISCELLANEOUS PROVISIONS.

In the English Companies' Act (25 and 26 Vic., c. 89), 1862, this Part commenced with section 205, which related to the repeal of Acts, and 206, which contained a saving clause with reference to such repeal. The Indian Act X. of 1866 also contained two sections, 219, 220, to a similar effect. See section 2 of this Act, supra.