Ex parte application. Order which was a nullity. Appeal by official liquidator. Appeals Appeal from County Court order made under 25 & 26 Vict. c. 87, s. 17. Judicial notice to be discovered till the time of appeal has elapsed, the Court will always give an opportunity of appeal (a). But a different decision arrived at by a Court of co-ordinate jurisdiction is not a sufficient ground for extending the time (b). The time will not be extended on an ex parte application (c). In one case, it being stated that the point to be decided was of great importance, the time was extended on an ex parte application, the benefit of the objection on the point of form being reserved to the respondent at the hearing of the appeal (d). This section does not, by reason of the three weeks having expired, interfere with the power of the Court to discharge an order which was in fact a nullity, by reason of its having been obtained at the instance of an alleged contributory whose name has since been removed from the register of shareholders (~). Semble, the official liquidator ought not to appeal against an order made in the winding-up without first obtaining the leave of the judge to whose Court the winding-up is attached (ƒ). See, as to appeals from the Stannaries Court, the General Order and Rules of that Court of the 28th of September, 1870, given infra. Order in Chancery, 28th July, 1859.] "Every order pronounced by the Court of Appeal in Chancery, upon an appeal from the Court of the Vice-Warden of the Stannaries of Cornwall, under the Companies Act, 1862 (25 & 26 Vict. c. 89), s. 124, shall be drawn up and entered by the Registrar of the Court of Chancery in attendance, and be remitted by him to the Court of the Vice-Warden, by transmitting an office copy thereof by post, but without fee, to the Registrar of the Vice-Warden" (9). The appeal from an order made by the County Court in the winding. up of a company under the Industrial and Provident Societies Act, 1862 (25 & 26 Vict. c. 87), under sect. 17 of that Act, is to the Court of Chancery, not to a superior Court of common law (h). 125. In all proceedings under this part of this Act, all Courts, judges, and persons judicially acting, and all other officers, judicial or ministerial, of any Court, or employed in enforcing the process of any Court, shall take judicial notice of the signature of any officer of the Courts of Chancery or Bankruptcy in England or in Ireland, or of the Court of Session in (a) Ebbw Vale Co.'s Case, L. R. 5 Ch. 112; and see Ex parte Holroyd, 15 Jur. 696. (b) Re Hull Forge Co., 15 W. R. 474; 36 L. J. (Ch.) 337. (c) Re Lama Italian Coal Co., 16 L. T. (N.S.) 258. (d) Re Hull Forge Co., 15 W. R. 388; and at the hearing the preliminary objection, that the time for appealing had expired, prevailed; 15 W. R. 474, cited supra. (e) In re Estates Investment Co., Ex parte Turnley and Oliver, L. R. 8 Eq. 227. (f) Re Trent and Humber Ship Building Co., Ex parte Cambrian Steam Packet Co., 17 W. R. 181; reported also L. R. 4 Ch. 112. (h) Henderson v. Bamber, (7) Given in L. R. 4 Ch. xliv. Scotland, or of the registrar of the Court of the Vice-Warden of the Stannaries, and also of the official seal or stamp of the several offices of the Courts of Chancery or Bankruptcy in England or Ireland, or of the Court of Session in Scotland, or of the Court of the Vice-Warden of the Stannaries, when such seal or stamp is appended to or impressed on any document made, issued, or signed under the provisions of this part of the Act, or any official copy thereof. 126. The commissioners of the Court of Bankruptcy and the judges of the County Courts in England who sit at places more than twenty miles from the General Post Office, and the commissioners of bankrupt and the assistant barristers and recorders in Ireland, and the sheriffs of counties in Scotland, shall be commissioners for the purpose of taking evidence under this Act in cases where any company is wound up in any part of the United Kingdom, and it shali be lawful for the Court to refer the whole or any part of the examination of any witnesses under this Act to any person hereby appointed commissioner, although such commissioner is out of the jurisdiction of the Court that made the order or decree for winding up the company; and every such commissioner shall, in addition to any power of summoning and examining witnesses, and requiring the production or delivery of documents, and certifying or punishing defaults by witnesses, which he might lawfully exercise as a commissioner of the Court of Bankruptcy, judge of a County Court, commissioner of bankrupt, assistant barrister, or recorder, or as a sheriff of a county, have in the matter so referred to him all the same powers of summoning and examining witnesses, and requiring the production or delivery of documents, and punishing defaults by witnesses, and allowing costs and charges and expenses to witnesses, as the Court which made the order for winding up the company has; and the examination so taken shall be returned or reported to such lastmentioned Court in such manner as it directs. 127. The Court may direct the examination in Scotland of any person for the time being in Scotland, whether a contributory of the company or not, in regard to the estate, dealings, or affairs of any company in the course of being Affidavits, &c., may be sworn in wound up, or 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 (a), and the order or commission to take such examination shall be directed to the sheriff of the county in which the person to be examined is residing or happens to be for the time, and the sheriff shall summon such person to appear before him at a time and place to be specified in the summons for examination upon oath as a witness or as a haver, and to produce any books, papers, deeds, or documents called for which may be in his possession or power, and the sheriff may take such examination either orally or upon written interrogatories, and shall report the same in writing in the usual form to the Court, and shall transmit with such report the books, papers, deeds, or documents produced, if the originals thereof are required and specified by the order, or otherwise such copies thereof or extracts therefrom, authenticated by the sheriff, as may be necessary; and in case any person so summoned fails to appear at the time and place specified, or appearing refuses to be examined or to make the production required, the sheriff shall proceed against such person as a witness or haver duly cited, and failing to appear or refusing to give evidence or make production may be proceeded against by the law of Scotland; and the sheriff shall be entitled to such and the like fees, and the witness shall be entitled to such and the like allowances, as sheriffs when acting as commissioners under appointment from the Court of Session and as witnesses and havers are entitled to in the like cases according to the law and practice of Scotland: If any objection is stated to the sheriff by the witness, either on the ground of his incompetency as a witness, or as to the production required to be made, or on any other ground whatever, the sheriff may, if he thinks fit, report such objection to the Court, and suspend the examination of such witness until such objection has been disposed of by the Court. (a) Conf. s. 115. 128. Any affidavit, affirmation, or declaration required to be sworn or made under the provisions or for the purposes of Scotland, or competent this part of this Act may be lawfully sworn or made in Great Ireland, Britain or Ireland, or in any colony, island, plantation, or the colonies place under the dominion of her Majesty, in foreign parts, before any before any Court, judge, or person lawfully authorized to take Court or and receive affidavits, affirmations, or declarations, or before person. any of her Majesty's consuls or vice-consuls, in any foreign parts out of her Majesty's dominions, and all Courts, judges, justices, commissioners, and persons acting judicially shall take judicial notice of the seal or stamp or signature (as the case may be) of any such Court, judge, person, consul, or vice-consul attached, appended, or subscribed to any such affidavit, affirmation, or declaration, or to any other document to be used for the purposes of this part of this Act. Voluntary Winding-up of Company. under which company may 129. A company under this Act (a) may be wound up Circumstances voluntarily, (1.) Whenever the period, if any, fixed for the duration be wound up of the company by the articles of association expires, (2.) Whenever the company has passed a special resolu- (3.) Whenever the company has passed an extraordinary resolution to the effect that it has been proved to their satisfaction that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same: For the purposes of this Act any resolution shall be deemed to be extraordinary which is passed in such manner as would, if it had been confirmed by a subsequent meeting, have constituted a special resolution as hereinbefore defined (B). (a) But not an "unregistered company" s. 199 (2); and see note to s. (B) s. 51; advertisement of special or extraordinary resolution, s. 132. voluntarily. Sub-sect. (2) Sub-sect. (3) Notice. Winding-up resolution associated with resolutions ultrà vires. Companies registered under the Joint panies Acts as A special resolution (see sect. 51) is a resolution passed by the statutory majority at one meeting, and confirmed after a certain interval at a second. A company may, therefore, under clause (2), by a resolution so passed and confirmed, agree to wind up voluntarily. A voluntary winding-up may also be initiated, under clause (3), by a resolution passed at one meeting, and not requiring confirmation at a second; but if it is under this clause that it is intended to proceed, the notice (see sect. 51) of the meeting must specify the intention of proposing a resolution to the effect in this clause mentioned, viz., that it has been proved to the satisfaction of the company that it cannot, by reason of its liabilities, continue its business, and that it is advisable to wind up the same; and, unless a sufficient notice has been given to draw the shareholders' attention to the intention of proposing such a resolution, a voluntary winding-up commenced by the passing of such resolution will be invalid. For the shareholders' attention ought to be distinctly drawn to the fact that it is, not a preliminary resolution, requiring confirmation, and which might, therefore, be opposed at the meeting called to confirm it, but a final resolution that it is proposed to pass (a). A winding-up resolution, which is in itself valid, is not invalidated by the fact of there being associated with it resolutions which have not been regularly passed; and quare, whether it would be invalidated if such resolutions were even ultrà vires (b). The dictum of Turner, L.J., in In re Imperial Bank of China, &c. (c), that if the winding-up was part of a scheme which was in itself w/trù vires, then the winding-up resolution must fall with the scheme, is not borne out by the order in that case; for the order enabling a shareholder to file a bill in the name of the company was one which the Court had no jurisdiction to make except under sect. 138, upon the footing that there was a voluntary winding-up (d). To companies formed and registered under the Joint Stock Companies Acts, as defined in sect 175, this Act is by sect. 176 (e) to apply as if they had been formed and registered under this Act. Such companies are, therefore, under no necessity of re-registering under the power given in the 180th section, and are not included under the designation of unregistered companies in sect. 199 (e). Such companies are, therefore, free from the prohibition contained in sect. 199 (2), and may be wound up voluntarily (ƒ). Thus, companies formed and registered under the Act of 1856, and not re-registered under this Act, have been wound up voluntarily (9), and the voluntary winding-up of such a company has been continued under supervision (h). (a) In re Bridport Old Brewery Co., L. R. 2 Ch. 191; and see s. 51 as to "notice." (b) In re Irrigation Co. of France, Ex parte Fox, L. R. 6 Ch. 176. (e) L. R. 1 Ch. 339. (d) See L. R. 6 Ch. 184, 190. L. R. 1 Ch. 329. (g) Torquay Bath Co., 32 Beav, 581; In re Beaujolais Wine Co., L. R. 3 Ch. 15. (h) In re London India Rubber Co., L. R. 1 Ch. 329; Re Minima Orgm Co., 11 W. R. 530, is an earlier case, in which doubt was expressed; see s. 146. |