all or any sums it deems necessary to satisfy the debts and With respect to this section see the notes to sect. 38, to which, in Effect of substance, this section is very similar. "Debts and liabilities " means estimated debts and liabilities. The intention of the section is to provide a fund for payment of the debts when established; and it is not, therefore, the duty of the Court to wait until claims have been established against the company before making a call (a). section. Court of The Court of Appeal will not, without strong reason, interfere with appeal will the discretion of the judge to whose Court the winding-up is attached, not interas to the quantum of a call made in the winding-up (a). fere with quantum of call. As to a call for adjustment of the rights of the contributories among Permanent themselves in the case of a permanent building society, see In re Don- building caster Permanent Building Society (b). society. On a summons for a call, the propriety or validity of the winding-up Winding-up order cannot be called in question (c). order cannot be disputed on summons for call. Persons who are on the register of shareholders at the commencement Member of the winding-up, having thereby incurred a primâ fucie legal liability, resisting call. 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 (d). Court to order pay Bank. 103. The Court may order any contributory, purchaser, or Power of other person from whom money is due to the company to pay the same into the Bank of England or any branch thereof ment into to the account of the official liquidator instead of to the official liquidator, and such order may be enforced (a) in the same manner as if it had directed payment to the official liquidator (B). (a) Gen. Order, Nov. 1862, Rule 38. (B) s. 100; Gen. Order, Nov. 1862, Rules 11, 32, 36-41. (a) In re Contract Corporation, L. R. 2 Ch. 95; Re Barned's Banking Co., 36 L. J. (Ch.) 215. (b) L. R. 4 Eq. 579. (c) In re London Marine Insurance Association, L. R. 8 Eq. 176. (d) Re Barned's Banking Co., 36 L. J. (Ch.) 215. Regulation of account with Court. Provision in case of representative contributory not paying moneys ordered. Order conclusive evidence. When the official liquidator desires to issue a writ of fi. fa. against a contributory who has not paid a call, he must obtain an order for payment to himself under Gen. Order, Nov. 1862, Rule 38 (a). 104. All moneys, bills, notes, and other securities paid and delivered into the Bank of England or any branch thereof 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 moneys 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 (a). (a) Gen. Order, Nov. 1862, Rules 36-44. 105. If any person made a contributory as personal representative of a deceased contributory makes default in paying any sum ordered to be paid by him, proceedings may be taken for administering the personal and real estates of such deceased contributory, or either of such estates, and of compelling payment thereout of the moneys due (a). (a) ss. 76, 95. Where the executors of a shareholder have distributed the assets of the testator under Sir G. Turner's Act (13 & 14 Vict. c. 35), without making provision for the contingent liability with respect to shares in a company, the executors must in the winding-up be put on the list of contributories, with a view to proceedings being taken for the administration of the testator's estate (b). Russell's Executors' Case (c) was a similar case, where the assets had been distributed under Lord St. Leonards' Act (22 & 23 Vict. c. 35). 106. 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 (a), be conclusive evidence that the moneys, 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, with the exception of proceedings taken against the real estate of any deceased contributory, in which case such order shall only be primâ facie evidence for the purpose of charging his real estate, unless his heirs or devisees were (a) In re Leeds Banking Co., L. R. (b) Cole's Executors' Case (Albert 1 Ch. 150; and see the Gen. Order. Arbitration) 15 Sol. J. 711. (c) Albert Arbitration, 15 Sol. J. 790. on the list of contributories at the time of the order being exclude creditors 107. The Court may fix a certain day or certain days on or Court may within which creditors of the company are to prove their debts or claims, or to be excluded from the benefit of any dis- not proving tribution made before such debts are proved (a). (a) s. 158; Gen. Order, Nov. 1862, Rules 20-28; note to s. 94. 108. If in the course of proving the debts and claims of creditors in the Court of the Vice-Warden of the Stannaries any debt or claim is disputed by the official liquidator or by any creditor or contributory, or appears to the Court to be open to question, the Court shall have power, subject to appeal as hereinafter provided (a), to adjudicate upon it, and for that purpose the said Court shall have and exercise all needful powers of inquiry touching the same by affidavit or by oral examination of witnesses or of parties, whether voluntarily offering themselves for examination or summoned to attend by compulsory process of the Court, or to produce documents before the Court, and the Court shall also have power, incidentally, to decide on the validity and extent of any lien or charge claimed by any creditor on any property of the company in respect of such debt, and to make declarations of right, binding on all persons interested; and for the more satisfactory determination of any question of fact, or mixed question of law and fact arising on such inquiry, the Vice-Warden shall have power, if he thinks fit, to direct and settle any action or issue to be tried either on the common law side of his Court, or by a common or special jury, before the justices of assize in and for the counties of Cornwall or Devon, or at any sitting of one of the superior Courts in London or Middlesex, which action or issue shall accordingly be tried in due course of law, and without other or further consent of parties; and the finding of the jury in such action or issue shall be conclusive of the facts found, unless the judge who tried it makes known to the Vice-Warden that he was not satisfied with the finding, or unless it appears to the Vice-Warden that in consequence of miscarriage, accident, or within certain time. Proceedings in the Court of the ViceWarden of the Stan naries on proof of debts. Court to adjust rights of contributories. Fully paidup share holders. the subsequent discovery of fresh material evidence, such finding ought not to be conclusive. (a) s. 124. 109. The Court shall adjust the rights of the contributories amongst themselves, and distribute any surplus that may remain amongst the parties entitled thereto. A holder of fully paid-up shares is a contributory within the meaning of the Act; and, therefore, when all debts have been paid, a call may be made upon the partly paid-up shareholders for the purpose of adjusting the rights between them and the fully paid-up shareholders (a). If, after payment of the debts, there are surplus assets, the fully paidup shareholders are (at any rate in the absence of very special circumstances, as where the articles of association provide otherwise (b)) entitled to receive the difference between the amount paid up on their shares and that paid up on the other shares of the company, before the assets are divided (~). A provision in the articles for the payment of a preferential dividend to one class of shareholders (d) will not alter the rule of distribution of the assets in the absence of any provision for the distribution of capital. Thus, where the articles authorized the directors to declare a dividend to be paid to the shareholders in proportion to the number of their respective shares, and the amount paid up thereon respectively, and there were issued both fully paid-up and partly paid-up shares, and dividends had been paid to the shareholders on the amounts so paid by them respectively, it was held that in the distribution of the surplus assets the fully paid-up shareholders were entitled to receive the difference between the amount paid on their shares and that paid on the other shares of the company, before the assets were divided (e). In re London India Rubber Co. (ƒ) is another case to shew that where there is a provision for preferential dividend, but no provision for preferential distribution of capital in breaking up, the distribution of assets will be made without reference to the rights in respect of dividend. But, it is conceived, that that case, so far as it directs a distribution of the capital pro ratâ among the different classes of shareholders, without a previous equalization of payments as between fully paid-up and partly paid-up shareholders, is overruled by Ex parte Maude (g) cited supra. (a) In re Anglesea Colliery Co., L. R. 2 Eq. 379; Ibid. 1 Ch. 555; and see In re National Savings Bank Association, L. R. 1 Ch. 547. (b) In re Holyford Mining Co., I. R. 3 Eq. 208. (g) L. R. 6 (c) In re Scinde, Punjauh, and Delhi Corporation, L. R. 6 Ch. 53, n. (d) See Comp. Act, 1867, s. 24 (3). (e) In re Hodges' Distillery Co., Ex parte Maude, L. R. 6 Ch. 51. (f) L. R. 5 Eq. 519. Ch. 51. order costs. 110. The Court may, in the event of the assets being in- Court to sufficient to satisfy the liabilities, make an order as to the payment out of the estate of the company of the costs, charges, and expenses incurred in winding up any company in such order of priority as the Court thinks just (a). (a) Conf. s. 144. As to costs incurred in litigation by a company in liquidation, see sect. 85. As to the costs of the winding-up petition, see sect. 86. It is not, it is conceived, from any difference of principle that the provision of sect. 144 in the case of a voluntary winding-up, that the costs shall be paid in priority to all other claims, is not enacted here in the case of a winding-up by the Court, but only because it is presumed that no direction is required to instruct the Court to do that which it would see that the justice of the case requires (a). Where in the course of the winding-up the official liquidator changes Change of his solicitor, and the assets are not sufficient to pay the whole of the solicitor. costs, the assets will in general, as between the solicitors, be applied in payment of their costs pro ratâ (b). An official liquidator is not entitled to receive anything out of the Remuneration assets by way of remuneration until all the costs of the winding-up of official liquidator. (including the bill of costs of the solicitor employed by him and the costs of any provisional liquidator properly appointed) have been paid in full. The rule of the Court is, that in the first place the costs of Order of the petition for winding up are to be paid out of the assets, next the priority. costs of the winding-up, and then the remuneration of the official liquidator (c). As to the order of priority of the costs of realising and preserving the assets of the company, of a mortgagee and debenture holders, and of the general costs of liquidation, see In re Oriental Hotels Co. (d). 111. When the affairs of the company have been com- Dissolution pletely wound up, the Court shall make an order that the of company. company be dissolved from the date of such order, and the company shall be dissolved accordingly (a). (a) Gen. Order, Nov. 1862, Rules 65-67, Form 56; s. 143, as to voluntary winding-up. Where a company, as a canal company, has been incorporated by a Company special Act of Parliament, whose provisions shew that the company incorporated was intended to be maintained in perpetuity, nevertheless, semble, if by special (a) See judgment of Lord Cairns in Webb v. Whiffin (not yet reported) cited supra, p. 99. (b) In re Audley Hall Cotton Spinning Co., L. R. 6 Eq. 245. (c) In re Massey, L. R. 9 Eq. 367; and see In re Trueman's Estate, L. R. 14 Eq. 278. (d) L. R. 12 Eq. 126. Act. N |