Stannaries the Vice-Warden certifies that in his opinion the company would be more advantageously wound up in the High Court of Chancery, in which case "the Court' shall mean the High Court of Chancery: In the case of a company registered in England that is not engaged in working any such mine as aforesaid,—the High Court of Chancery: In the case of a company registered in Ireland, the Court In all cases of companies registered in Scotland,—the Provided that where the Court of Chancery in England or (a) Comp. Act, 1867, ss. 12, 41, 42. As to industrial and provident societies, 25 & 26 Vict. c. 87, s. 17, infra, and note to s. 199 of this Act. (B) Gen. Order, Nov. 1862, Form 3. The test of the jurisdiction of the Stannaries Court is, not that a mine has been actually worked within the jurisdiction, but that the purpose for which the company was formed was the working of such a mine. Sect. 174 provides for the registration in the Stannaries Court of Companies "formed for working mines within the jurisdiction of the Court." And, therefore, in the case of a company which was established for the purpose of purchasing and working mines in Cornwall, and was registered in the Registry Office of the Stannaries Court, that Court was held to have the proper jurisdiction for winding it up, although it had never commenced business, and had never possessed or worked any mine, and had its registered office in London (a). If a company has been established for working mines within the jurisdiction of the Stannaries Court, the jurisdiction of that Court is not (a) Re East Botallack Consolidated Mining Co., 34 Beav. 82; 34 L. J. (Ch.) 81. ousted by the fact that some of the objects of the company are to be carried out beyond its district (a). By the Companies Act, 1867, ss. 41, 42 (v. infra.), the Court of Chan- County Court. cery in England may, after making a winding-up order, direct all subsequent proceedings to be had in a County Court, and may transfer the winding-up from one County Court to another. By the Industrial and Provident Societies Act, 1862 (25 & 26 Vict. c. 87), s. 17 (v. infra.), societies registered under that Act may be wound up under this Act, either by the Court or voluntarily; and the Court having jurisdiction in the winding-up will be the County Court of the district in which the office of the society is situated. As to the Court of Appeal in such a case, see sect. 124 of this Act. for winding up to be petition. 82. Any application to the Court for the winding-up of a Application company under this Act shall be by petition (a); it may be presented by the company, or by any one or more creditor or made by creditors (B), contributory or contributories (y) of the company, or by all or any of the above parties, together or separately; and every order (8) which may be made on any such petition shall operate in favour of all the creditors and all the contributories of the company in the same manner as if it had been made upon the joint petition of a creditor and a contributory. (a) Gen. Order, Nov. 1862, Rules 1-5, and March 1868, Rule 1. (B) Including under the Life Assurance Comp. Act, 1870 (33 & 34 Vict. c. 61), the holder of a current policy, v. ss. 2, 21 of that Act; and see Life Assurance Comp. Act, 1872, s. 4. (8) Gen. Order, Nov. 1862, Rules PETITION. Where the petitioner was the creditor of a banking company for only WHO MAY £65, and the debt had been attached in the Lord Mayor's Court by a creditor of the petitioner, the petition was, on the ground of the uncertain nature of the petitioner's interest, dismissed with costs (b). The assignee of a debt can petition (c). It is not necessary that the petitioning creditor's debt should amount to £50 (sect. 80); but if it be less than £50 the petitioner must shew his right to a winding-up order otherwise than by the non-payment of his debt three weeks after demand. A judgment debt on which execution was issued and nulla bona returned, was held sufficient as a proof of inability to pay debts (c). See further sects. 79, 80. By the Companies Act, 1867, s. 40, a shareholder, other than an Shareholder. original allottee, cannot, except in the event of the members being (a) Re Penhale and Lomax, &c. Co., L. R. 2 Ch. 398. (b) Re European Banking Co., Ex Shareholder in arrear. Paid-up shareholder. Petitioner is dominus litis. reduced in number to less than seven, petition for a winding-up order, unless he have held the shares for at least six months in the eighteen months previously to the commencement of the winding-up. The petition of a shareholder who is in arrear in the payment of calls due from him to the company may on that account be dismissed (a). A holder of fully paid-up shares is a "contributory" within the meaning of sect. 74 and of this section (b), and can present a petition for winding up the company (c). But he must shew sufficient grounds for a winding-up, for his interest is only this, that if there be a surplus of assets he is entitled to be repaid a portion of such surplus. And if he be the sole petitioner, and the creditors do not press for payment, and the company has not had a fair trial, the order will be refused (d). In In re Constantinople and Alexandria Hotels Co. (e), there being two petitions, the one by a paid-up shareholder, the other by shareholders who had paid only the deposit, the conduct of the winding-up was given to the paid-up shareholder. A creditor who has presented and advertised a petition is not a trustee for other persons, or bound to bring the petition to a hearing in order to give creditors or shareholders an opportunity to appear to support or oppose it; but he is entitled to dismiss it. And if after an offer to satisfy his debt and costs he proceed with the petition, he will be allowed no costs incurred after such offer (ƒ). When a creditor is aware that a petition to wind up has been presented, he is not at liberty to present a second petition, without the risk of having to pay costs (g). A rule, therefore, that, when once a petition has been presented the petitioner shall not be at liberty to dismiss it if a creditor appear and prove his debt and wish to take advantage of the petition, would be very convenient. But no such rule exists in the Court. And, therefore, where a creditor applied to dismiss his petition, his debt having been secured, and another creditor appeared on the petition (a) In re European Life Assurance Society, L. R. 10 Eq. 403. (b) In re Anglesea Colliery Co., L. R. 2 Eq. 379; Ibid. 1 Ch. 555. (c) In re National Savings Bank Association, L. R. 1 Ch. 547; Re London Armoury Co., 11 Jur. (N.S.) 963; although doubted in an early case, Re Cheshire Patent Salt Co., 1 N. R. 533. (d) Re Patent Artificial Stone Co., 34 Beav. 185; 11 Jur. (N.S.) 4; 13 W. R. 285; Re Patent Bread Machinery Co., 14 W. R. 787; Re Lancashire Brick and Tile Co., 34 Beav. 330; 13 W. R. 569. L. R. 9 Eq. 447, and s. 79; although in an earlier case, Re Mid-Wales Hotel Co., 17 L. T. 597, it was held the better course when a petition had been presented and advertised to let it be called on and withdrawn if no one objected. (g) Re Accidental and Marine Insur ance Co., Ex parte Rasch, 36 L. J. (Ch.) 75; unless the petition which has been presented is virtually the petition of the company, and merely collusive: In re Humber Ironworks Co., L. R. 2 Eq. 15; or is otherwise suspicious, as where, subsequent to the presentation of the petition, a voluntary winding-up was commenced, and the petitioner accepted the office of liquidator under it: Re Commercial Discount Co., Cooper's Case, 1 N. R. 416; 32 Beav. 198. and objected to its dismissal, the petition was dismissed with costs, but Whether order will be made at instance of person other than petitioner. An order has been made to wind up a benefit building society on the Benefit buildpetition of a member who had given notice of withdrawal of his de- ing society. posits, the petition (as amended) stating that he was a creditor of the company in respect of money advanced by him as a member, in respect of which notice of withdrawal had been given (c). An order has been made upon the petition of the transferee of a Scripholder. scrip certificate transferable by delivery, which entitled the holder to become a shareholder in respect of the shares therein mentioned, and in the meantime to receive dividends, he admitting himself to be a contributory, and undertaking to do all acts necessary to make himself a shareholder (d). Where two or more petitions are presented they will take priority Priority of according to their dates of advertisement, not according to their dates petitions. of presentation (e). Court. 83. Any judge of the High Court of Chancery may do in Power of Chambers any act which the Court is hereby authorized to do; and the Vice-Warden of the Stannaries may direct that a petition for winding up a company be heard by him at such time and at such place within the jurisdiction of the Stannaries, or within or near to the place where the registered office of the company is situated, as he may deem to be convenient to the parties concerned, or (with the consent of the parties concerned) at any place in England; and all orders made thereupon shall have the same force and effect as if they had been made by the Vice-Warden sitting at Truro or elsewhere within the jurisdiction of the Court, and all parties persons summoned to attend at the hearing of any such petition shall be compellable to give their attendance before the Vice-Warden by like process and in like manner as at the hearing of any cause or matter at the usual sitting of the said Court; and the registrar of the Court may, subject to exception or appeal to the Vice-Warden as heretofore used, (a) In re Home Assurance Association, L. R. 12 Eq. 59. (b) In re Spence's Co., L. R. 9 Eq. 9; In re Home Assurance Association, L. R. 12 Eq. 59. (c) In re Queen's Benefit Building Society, L. R. 6 Ch. 815; and see In re Doncaster Permanent Building Society, L. R. 3 Eq. 158. (d) Re Littlehampton Steamship Co., 34 Beav. 256; 2 D. J. & S. 521; and see Ormerod's Case, L. R. 5 Eq. 110. (e) Re United Ports Co., 39 L. J. (Ch.) 146; and see Gen. Order, Nov. 1862, Rule 2, infra. Commencement of winding-up by Court. Life Assurance do and exercise such and the like acts and powers in the matter of winding up as he is now used to do and exercise in a suit on the Equity side of the said Court (a). (a) Comp. Act, 1867, s. 12, infra. By the Stannaries Act, 1869 (32 & 33 Vict. c. 19), s. 38: Hearing of Petition for Winding-up.] The provision of sect. 83 of the Companies Act, 1862, contained in second paragraph thereof, shall be amended, and read as follows: namely, that the Vice-Warden may direct that petitions to wind up a company shall be heard by him at such time or place as he may think fit within the Stannaries, or within or near to the place where the registered or other chief office of the company is situate, or if such office be distant 150 miles or more from Truro (measured by the public railways) then in London or Westminster; or with the consent of the party or parties petitioning, and of the company represented by its secretary, purser, or other proper officer, the hearing may be in any part of England; and all orders made by the Vice-Warden on such hearing in any of the above cases shall be as valid and effectual as if they had been made at Truro. 84. A winding-up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding-up (a). (a) s. 130 as to voluntary winding-up. Where there have been several petitions presented, the order, and therefore the commencement of the winding-up, dates from the earliest (a). As to the commencement of a voluntary winding-up, and of a winding-up under supervision (sect. 147), see post, sect. 130. If the order of events be: presentation of a petition for a compulsory order, resolution passed for voluntary winding-up, order on the petition to continue the winding-up under supervision, the commencement of the winding-up will be the date of the resolution to wind up voluntarily, not, under this section, the date of the presentation of the petition (b). If a supervision order be superseded by a compulsory order the winding-up will date from the commencement of the winding-up under supervision—i.e., from the resolution to wind up voluntarily,—not from the presentation of the petition (c). By the Life Assurance Companies Act, 1872 (35 & 36 Vict. c. 41), s. 4, infra, where under the provisions of that section a "subsidiary" company is ordered to be wound up in conjunction with a "principal” company, the commencement of the winding-up of the principal com (a) Kent v. Freehold Land Co., L. R. 3 Ch. 493. (b) Weston's Case, L. R. 4 Ch. 20; contra, Re Hydraulic Tube Drawing Co., 16 W. R. 572; 18 L. T. (N.S.) 205, Malins, V.C., which must be considered as overruled; and see s. 130. (c) Re United Service Co., L. R. 7 Eq. 76; and see s. 152. |