(iii) Sec. 157 infra.

(iv) Secs. 133 and 174 infra.

(v) See sec. 48 supra.

(vi) Secs. 9 supra and 139 and 178 infra.

(vi) See the cases cited to this clause, p. 128, Buckley, 4th ed.

(viii) See sec. 150 infra and note thereto.

Cf. secs. 69-62 of Act XIX. of 1857.

Explanation I-This embodies the opinions of the Law Lords in Webb v. Whiffin, L. R. 5 II. L. 711. See also IN RE Oriental Commercial Bank, Morris's case, L. R. 8 Ch. 800.

Explanation II.—The decisions in IN RE Blakely Ordnance Co., Brett's case, L. R. 8 Ch. 890, and Morris's case, ibid.

The section applies to all kinds of winding-up, i.e., to a winding-up by an order of the Court, to a winding-up voluntarily, and to a voluntary liquidation under the supervision of the Court: there is no distinction: per Jessel, M. R., in IN RE Whitehouse § Co., 9 Ch. D at p. 599.

For the definition of "a contributory," see sec. i24 post.

Every present and past member shall be liable to contribute, &c, see Contribution. per Jessel, M. R., IN RE Whitehouse & Co.: That is a new liability: he is to contribute; it is a new contribution. It is a mistake to call that a

debt due to the Company. It is no such thing. It is not, as has been supposed, in any shape or way a debt due to the Company, but it is a liability to contribute to the assets of the Company; and when we look further into the Act, it will be seen that it is a liability to contribution to he enforced by the liquidator. It is quite true that a call made before the winding-up-and in the case before me, the call was made before winding-up-is a debt due to the Company, but that does not affect this new liability to contribution."

A liability to contribute to the assets of a Company is entirely distinct from the property" of the Company, see per Jessel, M. R. In IN RE Colonial Trusts Corporation, ex parte Bradshaw, 15 Ch. D 471.

A member of a duly registered Company, whose shares have been Past Members. forfeited, is as much a past member as a member whose shares have been surrendered or transferred, but he is not liable to be placed on the list of contributories until it is established that the existing members are unable to satisfy the contributions required to be made by them, and that the debts in respect of which he is called upon to contribute, were incurred prior to the date on which he ceased to be a member of the Company. ÎN RE Allahabad Trading Co. 1 N. W. R. 101. See further Buckley, 4th ed. 130 and cases there cited.

"For the payment of such sums as may be required for the adjustment of the rights of the contributories amongst themselves," see per Jessel, M. R., IN RE Hall and County Bink. Burgess's case, 15 Ch. D' 507, at pp. 511-513. See this case supra note to Sec. 58.

The list of contributories will consist of two parts: first, the list A list and B list. ' of present members, ie. of those who are members of the Company at

'the commencement of the winding-up, commonly called the A list; secondly, the list of past members who have ceased to be members

6

within a year before the commencement of the winding-up (see clause a), commonly called the B list.' And the relation of present and past members to each other is that of primary and secondary liability: not that of principal and agent." Buckley, 4th ed., p. 131.

Clause (a). The commencement of the winding-up," as to when the winding-up commences in the case of a voluntary winding-up which is followed by a compulsory winding-up, see RE Taurine Co., 25 Ch. Div. 118, and see sections 133 and 174 post.

Clause (c). See IN RE Norwich Provident Insurance Society, Hesketh's Case, 13 Ch. Div. 693, which reversed Baths' case, 11 Ch. D. 336, as being inconsistent with the decision in Baths' Case, 8 Ch. Div., 34.

Cf. IN RE Albion Assurance Society, 15 Ch. Div. 79, 16 Ch. Div. 83, where it was held that the participating policy-holders in an unlimited Insurance Society could not be called on to contribute until the shareholders had been exhausted, and see Mr. Buckley's note on classes of contributories, pp. 129, 130, 4th ed.

Clause (d). “Calls made in a winding-up, being calls for something unpaid on the shares, are not a debt due to the Company, but are contributions due by the member under this section. The contribution under this section also applies to the unpaid calls made before the winding-up; because, though that is a debt due to the Company, it is 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 It is as much unpaid if he had not paid the calls made before the winding-up, as it is in respect of the amount unpaid on the shares in respect of which no call has been made before the winding-up. It seems to me that the contributories' liability created by the 38th section being only limited to the amount unpaid, it is immaterial, for the purpose of this section, whether the call was made before or after the winding-up, provided the amount is unpaid." Per Jessel, M. R. IN RE Whitehouse & Co., 9 Ch. D. 600.

See the discussion on the words " remaining unpaid." Buckley, 4th ed., pp. 134 seqq.

Clause (e). See Lion Mutual Marine Insurance Co. v. Tucker, 12 Q. B. Div. 176, where it was held that "contribution" means contribution as a member, and therefore the limitation of liability in a Mutual Marine Insurance Company limited by guarantee did not apply to debts and liabilities to which the members by the rules of the association were to contribute as insurers or as assured, i.e. debts and liabilities of certain members to other members of the association. Accordingly the Court of Appeal, reversing the judgment of the Queen's Bench Division, held that the defendant was liable to contribute in respect of certain losses, which had happened before the winding-up of the Company, although such contribution exceeded the sum of £5, the amount limited in the memorandum of association. See also IN RE Mercantile Mutual Marine Insurance Association, 25 Ch. D at 417, where Chitty, J., gave a similar decision.

Clause (f). See the note and cases to this clause, Buckley, 4th ed. p. 128, and Cf. Lion Mutual Marine Insurance Co. v. Tucker, 12 Q. B., Div. 176 supra.

Clause (g). The plaintiffs in a suit brought on behalf of themselves and the other shareholders in a Company to impeach a fraudulent contract made between the Company and its promoters, were held not entitled to have their costs paid out of the assets of the Company in the winding-up, where the Company had been wound up before the trial, and the plaintiffs had not obtained leave to carry on the action, although the Judge who heard the suit had given the plaintiff's leave to apply in the liquidation of the Company for their costs. IN RE Hull Central Drapery Co., 15 Ch. Div. 326.

With regard to the position of the B contributories as to the costs of winding-up, see Buckley, 4th ed, pp. 140-142.

As to the payment of the costs, charges and expenses of a windingup by the Court, see sec. 158 post; and of a voluntary winding-up, sec. 188 post.

For the rules which have been established with respect to the contributories of a Company in liquidation and the application of their contributions, see Buckley, 4th ed., pp. 143, 144.

director

62. With respect to the contributions to be Liability of required in the event of the winding-up of a limited whose liabi Company from any director or manager whose liability is unlity is unlimited, the following modifications shall limited. be made in the last preceding section:

(a) Subject to the provisions hereinafter contained, any such director or manager, whether past or present, shall, in addition to his liability (if any) to contribute as an ordinary member, be liable to contribute as if he were at the date of the commencement of such winding-up a member of an unlimited. Company:

(b) No contribution required from any past director or manager who has ceased to hold such office for a period of one year or upwards prior to the commencement of the winding-up shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the Company:

(c) No contribution required from any past director or manager in respect of any debt or liability of the Company contracted after the time at which he ceased to hold such office shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the Company:

(d) Subject to the provisions contained in the regulations of the Company, no contribution required from any director or manager shall exceed the amount (if any) which he is liable to contribute as an ordinary member, unless the Court thinks it necessary to require such contribution in order to satisfy the debts and liabilities of the Company, or the costs, charges and expenses of the winding-up.

Sec. 5 of the English Companies' Act (30 and 31 Vic., c. 131), 1867, verbatim, save that in the English Act the words are "and the costs, charges and expenses of the winding-up."

Sec. 7 supra provides for the unlimited liability of direc

tors.

Registered office of Company.

Notice of situation of registered office.

Publication

a limited

Company.

PART III.

MANAGEMENT AND ADMINISTRATION OF COMPANIES
AND ASSOCIATIONS UNDER THIS ACT.

Provisions for Protection of Creditors.

63. Every Company under this Act shall have a registered office to which all communications and notices may be addressed(i). If any Company under this Act carries on business without having such an office, it shall incur a penalty not exceeding fifty rupees for every day during which business is so carried on.

Sec. 39 of the English Companies Act (25 and 26 Vie.. c. 89), 1862, save that five pounds is the penalty, and sec. 38 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 26 of Act XIX. of 1857.

(i) See sec. 89 post.

As to service of a summons on a Company, see post Appendix Chap. XXIX, sec. 436 of the Civil Procedure Code (Act XIV. of 1882). Cf. sec. 17, Explanation II. of the Civil Procedure Code.

64. Notice of the situation of such registered office and of any change therein shall be given to the Registrar and recorded by him. Until such notice is given, the Company shall not be deemed to have complied with the provisions of this Act with respect to having a registered office.

See. 40 of the English Companies Act (25 and 26 Vic., c. 89). 1862, and sec. 39 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 27 of Act XIX. of 1857.

65. Every limited Company under this Act, of name by whether limited by shares or by guarantee, shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the basiness of the Company is carried on, in a conspicuous position, in letters easily legible, in the English language, and also, if the registered office be situate in a district beyond the local limits of the ordinary original civil jurisdiction of a High Court, in one of the vernacular languages used in such district, and shall have its name engraven in legible characters in such language or languages on its seal, and shall have its name mentioned in legible

characters in such language or languages in all notices, advertisements, and other official publications of such Company, and in all bills of exchange, hundis, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of such Company, and in all bills of parcels, invoices, receipts and letters of credit of the Company.

Sec. 41 of the English Companies' Act (25 and 26 Vic., e. 9), 1862, mulatis mutandis, and sec. 40 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 28 of Act XIX. of 1857.

66. If any limited Company under this Act Penalties on does not paint or affix, and keep painted or affixed, non-publicaits name in manner directed by this Act(i), it shall be liable to a penalty not exceeding fifty rupees for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed.

Every director and manager of the Company who knowingly and wilfully authorizes or permits such default shall be liable to the like penalty.

If any director, manager or officer of such Company, or any person on its behalf, uses or authorizes the use of any seal purporting to be a seal of the Company whereon its name is not so engraven as aforesaidi), or issues or authorizes the issue of any notice, advertisement or other official publication of such Company, or signs or authorizes to be signed on behalf of such Company any bill of exchange, hundi, promissory note, endorsement, cheque, order for money or goods, or issues or authorizes to be issued any bill of parcels, invoice, receipt or letter of credit of the Company wherein its name is not mentioned in manner aforesaid, he shall be liable to a penalty of one thousand rupees, and shall further be personally liable to the holder of any such bill of exchange, hundi, proinissory note, cheque or order for money or goods for the amount thereof, unless the same is duly paid by the Company.

Sec. 42 of the English Companies' Act (25 and 26 Vie., c. 89), 1862. mutatis mutandis, and sec. 41 of the fad ali Companies' Act X. of 1966, corbatim.

(1) Sec. 65 supra.

Cf. sec. 29 of Act XIX. of 1857