Contingent debt. Registrar to make minute of dissolution of company. Penalty on dissolution such a company becomes subject to the winding-up jurisdiction, the Court may make an order dissolving the company (a). Whether the existence of a claim in respect of a debt payable on a contingency, which has been admitted to proof (v. sect. 158), onght to prevent the making an order for dissolving the company: quære (b). 112. Any order so made shall be reported by the official liquidator to the registrar, who shall make a minute accordingly in his books of the dissolution of such company. 113. If the official liquidator makes default in reporting to not reporting the registrar, in the case of a company being wound up by the Court, the order that the company be dissolved, he shall be liable to a penalty not exceeding five pounds for every day during which he is so in default. of company. Petition to be lis pendens. Section repealed. Its effect as to company; as to contributories. 114. Any petition for winding up a company by the Court under this Act shall constitute a lis pendens within the terms of the Act passed in the session holden in the second and third years of the reign of her present Majesty, chapter eleven, and entitled "An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis Pendens, and Fiats in Bankruptcy," provided the same is duly registered in manner required by such Act concerning suits in equity. This section is by 30 & 31 Vict. c. 47, s. 1, repealed from the passing of that Act. Sect. 153, which refers to all the property of the company, including, therefore, the real estate, seems to render this section superfluous, so far as registering the petition as a lis pendens against the company is concerned; although the object of the Legislature may have been to give protection to a purchaser of the real estate of the company, and to enable him to receive notice by the registration that a proceeding was pending, and not find without notice that the alienation to him was declared to be void and invalid. It was held in In re Barned's Banking Co., Ex parte Thornton (c), that the section did not extend to authorize the registration of the petition against individual contributories. The section may therefore be said to have been superfluous as regards the property of the company, and inapplicable to restrain the alienation of his property by a contributory. The improper removal or concealment of his goods by a contributory is dealt with by sect. 118; but with regard to the real property of a (a) In re Bradford Navigation Co., 1 Ch. 77; and see and consider note to s. 143, and Industrial and Provident Societies Act, 1862, s. 18. (c) L. R. 2 Ch. 171. contributory any improper alienation is left to stand upon the general law of the kingdom. Extraordinary Powers of Court. Court to summon persons before it of having property of 115. The Court may, after it has made an order for wind- Power of ing up the company, summon (a) before it any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company, or supposed suspected to be indebted to the company, or any person whom the Court may deem capable of giving information concerning company. the trade, dealings, estate, or effects of the company; and the Court may require any such officer or person to produce any books, papers, deeds, writings, or other documents in his custody or power relating to the company; and if any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the Court at the time appointed, having no lawful impediment (made known to the Court at the time of its sitting, and allowed by it), the Court may cause such person to be apprehended, and brought before the Court for examination (B); nevertheless, in cases where any person claims any lien on papers, deeds, or writings or documents produced by him, such production shall be without prejudice to such lien, and the Court shall have jurisdiction in the winding-up to determine all questions relating to such lien. (a) Gen. Order, Nov. 1862, Form 54. (B) s. 117; conf. s. 127. Upon a special examiner being appointed for the purpose of any inquiries directed by the Court, any one in the position of an ordinary witness will, according to the ordinary practice, be summoned to attend before him by subpoena. But a witness summoned under this section is in a different position (a), and must be summoned by summons in the form given in Form 54 in the 3rd Schedule to the Rules of the 11th of November, 1862, and not by subpoena (b). The reason for this is, that the Court is to be satisfied that the person summoned is capable of giving the information; and although the Court would probably be satisfied with even the suggestion of the official liquidator that he believes the person summoned to be within the section, yet the official liquidator does not so represent the Court that he can issue a subpoena, but a special action by the Court is required through the medium of a summons at Chambers. (a) Clement's Case, L. R. 13 Eq. 179, n. (b) In re English Joint Stock Bank, L. R. 3 Eq. 203. By summons, not by subpœna. Who may be The official liquidator is not bound to do more than shew the Court that there is a primâ facie probability that the person is capable of giving important information. He is not bound to shape his case, but may leave that to depend on the evidence (a). A debt due to the company upon shares forms part of the effects of the company, and the circumstances under which shares have been entered on the register form part of the dealings of the company (b); and, therefore, any persons who possess any means of information on these subjects may be examined. And information which relates to the property of a contributory is information concerning the estate or effects of the company (c). The wording of the 127th section varies slightly from that of this section, and by the 127th power is expressly given to examine any person in regard to the estate, dealings, or affairs of any person being a contributory of the company, so far as the company may be interested therein by reason of his being such contributory." Orders have been made to compel information from:-the managing clerk of a bank with which a contributory had an account, and for the production of books and documents relating to the account (d); the broker, by whom a transfer was effected in a case in which the transferee was an infant, and a person of no substance (); the sister and nephew of a contributory who had been served with a balance order, but who could not be found, although there was no evidence beyond the relationship to shew that the persons summoned could give any information (f); the mother-in-law of a contributory, under circumstances similar to those in the last case (g); a creditor of the company who claimed for commission for service rendered and work done as agent for the company (h). But a mere creditor cannot be examined (¿). A stockbroker, asserted to have acted improperly, will be examined as a matter of course as to the circumstances of a transfer (k). Any person indebted to a contributory is liable to be summoned to give information respecting the means of such contributory. Thus former partners of a contributory were compelled to attend to give evidence and to produce the ledger, cash-book, and cheque-book of the firm (7). For the future, witnesses summoned under this section, and refusing L. R. 13 Eq. 179, n; Baker's Case, Ex parte Carter, 19 W. R. 55; 40 L. J. (Ch.) (a) In re Financial Insurance Co., Bloxam's Case, 36 L. J. (Ch.) 687; In re Mercantile Credit Association, Clement's Case, L. R. 13 Eq. 179, n. (b) In re Mercantile Credit Association, Clement's Case, 37 L. J. (Ch.) 295; L. R. 13 Eq. 179, n.; Swan's Case, L. R. 10 Eq. 675. (e) Bloxam's Case, 36 L. J. (Ch.) 687; Trower and Lawson's Case, L. R. 14 Eq. 8. (d) Bloxam's Case, 36 L. J. (Ch.) 687; Druitt's Case, L. R. 14 Eq. 6. (e) Clement's Case, 37 L. J. (Ch.) 295; 15. (f) Swan's Case, L. R. 10 Eq. 675. (g) Fricker's Case, L. R. 13 Eq. 178. (h) In re English Joint Stock Bank, L. R. 3 Eq. 203. (i) In re Accidental and Marine Insurance Corporation, Mercati's Case, L. R. 5 Eq. 22. (k) Baker's Case, Ex parte Carter, 19 W. R. 55; 40 L. J. (Ch.) 15. (1) Trower and Lawson's Case, L. R. 14 Eq. 8. to attend, will be liable to pay the costs of compelling their attendance (a). In In re Smith, Knight, & Co. (b), G. took an active part in the transfer without consideration of shares from C. to N., and supplied moneys for subsequent calls. The liquidators considering it material to trace these moneys, a summons was allowed to issue for the examination of the secretary of the bank with which G. had an account, and for the production of the books; G. being absent from England, and not expected to return. But it was left open to the witness, on attending the summons, to take any objection he thought proper to the inspection of the books. In In re Contract Corporation (c) the C. Company were judgment creditors of the T. Company, in which the G. and M. companies were large shareholders. The official liquidators of the C. Company, being unable to realise their judgment, were allowed to examine the shareholders in the T. Company with a view to shewing that the shareholders in the T. Company other than the G. and M. companies were mere nominees of the G. and M. companies, hoping, if they could establish this as the fact, to be able to carry a bill in Parliament to compel the G. and M. companies to take a transfer of the T. Company's line, and pay off its liabilities. The order in this case also was made without prejudice to any objections the witnesses might take on attending the summons. Where leave is given to continue an action (sect. 87) the plaintiff in the action cannot therefore escape examination in the winding-up, or refuse to answer questions relating to the matters in dispute in the action (d). The witness is entitled to be attended at his examination by his counsel and solicitor, and the examination will be conducted as in ordinary cases (e). Witness may be attended by counsel. Official nation. As to discovery from the official liquidator, see sect. 94. On the examination of the manager of the B. Company in liquidation, liquidator. the official liquidator of the C. Company (with which the B. Company Cross-examihad, before it went into liquidation, become amalgamated), to whom leave had been given to attend all proceedings in the winding-up of the B. Company, was, on an undertaking as to costs, allowed to attend and cross-examine (ƒ). The witness must answer questions which refer to mere hearsay, for Hearsay. the object of the section is to enable the official liquidator to get at the facts, and hearsay evidence may be valuable as tending to put him on the right inquiries (g). Depositions taken under this section may be read on a summons as The depositions evidence against the deponent; but, semble, notice should be given of are evidence. the intention to read them (). (a) Trower and Lawson's Case, L. R. 14 Eq. 8. (Romilly, M.R.) (6) L. R. 4 Ch. 421. (c) L. R. 6 Ch. 145. (d) Ex parte Bateman, 15 W. R. 118, 245. (e) In re Breech-loading Armoury Co., In re Merchants' Co., L. R. 4 Eq. 453; (g) Re Ottoman Co., 15 W. R. 1069. Solicitors' lien-Production. Special examiner. Special pro visions as to Court of Vice-Warden of the Stannaries. Where the solicitors of the company have a lien for costs on documents relating to the company in their possession, the official liquidator may, nevertheless, by summons under this section, compel their production. For the official liquidator represents not only the company, but also the creditors of the company, and does not therefore stand simply in the position of a client asking production against his solicitor without having paid his solicitor's bill. The production will be without prejudice to the lien, but will practically, of course, in many instances, render the lien valueless (a). The ordinary rule as to the appointment of a special examiner is that he is not appointed until all persons interested in the appointment have been heard thereon. Accordingly it has been held that a person who had given evidence by affidavit in opposition to a summons to place him on the list of contributories, and who had not consented to the appointment of the special examiner who had been appointed to take the examination of witnesses in the winding-up, could not be required to attend and be cross-examined before him on his affidavit (b). With respect to examination under this section, the two cases next cited leave the practice somewhat doubtful. An ex-director of a company, who had not consented to the appointment of the special examiner, was summoned to give evidence respecting the affairs of the company. He objected that he had had no voice in the appointment of the examiner. Romilly, M.R., there said that the statute does not say that persons who are deemed capable of giving information respecting the affairs of the company shall be examined before a special examiner to whose appointment they have not consented, and directed an application to be made in Chambers respecting the appointment of a special examiner to take the examination (c). But where H., on being summoned, while admitting that he had no objection to the examiner, refused to go before him on the ground that he was entitled to be heard with reference to his appointment, Romilly, M.R., said that he would not allow a mere captious objection to an examiner to prevail, that H. was merely a witness (and not a person between whom and the liquidator proceedings were pending in respect of which his examination might give information), and was not entitled to be heard upon the subject, and that he must therefore go before the examiner (d). 116. If, after an order for winding up in the Court of the Vice-Warden of the Stannaries, it appears that any person claims property in or any lien, legal or equitable, upon any of the machinery, materials, ores, or effects on the mine, or (a) In re South Essex Estuary Co., Ex parte Paine and Layton, L. R. 4 Ch. 215; see further, Gen. Order, Nov. 1862, Rule 58. (b) In re Smith, Knight, & Co., L. R. 8 Eq. 23. (c) Bateman's Case, 15 Sol. J. 491. (d) In re Contract Corporation, L. R. 13 Eq. 27. |