GENERAL ORDER AND RULES

OF THE

High Court of Chancery,

ΤΟ

REGULATE THE MODE OF PROCEEDING UNDER

THE COMPANIES ACT, 1862.

ISSUED BY

THE LORD HIGH CHANCELLOR,

TUESDAY, 11TH DAY OF NOVEMBER, 1862.

ORDER OF COURT,

Tuesday, the 11th day of November, 1862.

THE RIGHT HONOURABLE RICHARD BARON WESTBURY, Lord High Chancellor of Great Britain, with the advice and consent of The Right Honourable SIR JOHN ROMILLY, Master of the Rolls, The Honourable The Vice-Chancellor SIR RICHARD TORIN KINDERSLEY, The Honourable The ViceChancellor SIR JOHN STUART, and The Honourable The Vice-Chancellor SIR WILLIAM PAGE WOOD, doth hereby, in pursuance and execution of the powers given by the Statute 25th and 26th Victoria, chapter 89 (a), and of all other powers and authorities enabling him in that behalf, order and direct in manner following:

PETITION TO WIND UP COMPANY (B).

1. Every petition for the winding-up of any company by the Court, or subject to the supervision of the Court, shall

be intituled in the matter of "The Companies Act, 1862" (7), and of the company to which such petition shall relate, describing the company by its most usual style or firm.

(a) Comp. Act, 1962, s. 170.

(B) Comp. Act, 1862, ss. 82, 147. (7) See Gen. Order, March, 1868, Rule 1.

By Gen. Order, March, 1868, Rule 1, petitions, notices, affidavits, and other proceedings under petitions, after the 15th of April, 1868, are to be intituled in the matter of "The Companies Acts 1862 and 1867."

2. Every such petition shall be advertised seven clear days before the hearing, as follows:

(1.) In the case of a company whose registered office (a), or if there shall be no such office, then whose principal, or last known principal place of business is or was situate within ten miles from Lincoln's Inn Hall, once in the London Gazette, and once at least in two London daily morning newspapers.

(2.) In the case of any other company, once in the London Gazette, and once at least in two local newspapers circulating in the district where such registered office, or principal, or last known principal place of business, as the case may be, of such company is or was situate.

The advertisement (B) shall state the day on which the petition was presented, and the name and address of the petitioner, and of his solicitor and London agent (if any).

(a) Comp. Act, 1862, s. 39.

(8) See Form 1 in Sch.

The seven days may be counted in the vacation (a).

Seven clear

Where the petition had been advertised in only one London news- days. paper besides the London Gazette, the Court refused to dispense (under Advertisement Rule 53, infra) with advertisement in a second newspaper, and directed irregular. that the petition should be duly advertised, and the order drawn up

seven days after the advertisement (b).

The Court has a discretion, however, by virtue of Rule 53, infra; and where the advertisement in the London Gazette had not been inserted seven clear days before the day for which the petition was answered, the Court overruled the objection (c).

Where the advertisements had been duly published in the London Gazette, but, owing to the mode in which the local newspapers appeared in print, the advertisements inserted in them had not been published (a) Re London India Rubber Co., 14 (b) Re London India Rubber Co., 14 W. R. 594. L. T. 317; 14 W. R. 527, 594. (c) Re Land and Sea Telegraph Co., 18 W. R. 1150.

Re-hearing without fresh advertisement

Priority by date of adver

tisement.

Advertisement is notice of petition.

Publication of petition in extenso in news

paper-Con

tempt.

in accordance with the requirements of the Order, the advertisements were held sufficient (a).

If the petition cannot be heard on the day appointed by advertisement, by reason of the advertisement not having been properly inserted, the practice is to let the petition stand over for a fortnight, with liberty to insert fresh advertisements (b).

On motion to discharge a supervision order (on the ground of irregularity in the passing of the resolution for voluntary winding up) the order was discharged and the petition reheard without fresh advertisement, on service and consent of all parties entitled to be served (c).

The advertisement, not the presentation of the petition, is the test of the priority of the proceedings. Where two or more petitions are presented they will take priority according to their dates of advertisement, not of presentation (/).

The advertisement of the petition is notice to all the world of its presentation (), and is notice to parties interested, if not properly represented, to appear (ƒ).

If a petition which has been presented and advertised is subsequently withdrawn (g), the withdrawal should therefore also be advertised (4). A petitioner who presents a petition after another petition for the same purpose has been advertised, must, unless he can shew good grounds for the presentation of a second petition (h), pay the costs (V). The publication in extenso in a newspaper, before the hearing, of a winding-up petition, containing charges of fraud against the directors, is a contempt of Court (k).

3. Every such petition shall, unless presented by the company, be served at the registered office (a), if any, of the company, and if no registered office, then at the principal, or last known principal place of business, of the company, if any such can be found, upon any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by being left at such registered office or principal place of business, or by being served on such member or members of the company as the Court may direct; and every petition for the winding-up of a com

pany subject to the supervision of the Court (B), shall also be served upon the liquidator (if any) appointed for the purpose of winding up the affairs of the company.

(a) Comp. Act, 1862, s. 39.

(B) Comp. Act, 1862, s. 148.

The registered office of a company had been demolished in the course No registered of alterations, and the business was being carried on at an unregistered office.

office. Service on the secretary and two of the directors at the

unregistered office was held sufficient (a).

Where the company was in course of winding up, service of a peti

tion was directed to be made upon the late secretary, and not upon the

liquidator (b).

The registered office of a company was closed, and the company had Office closed. never commenced business. The Court, on an ex parte application, directed service to be made on the chairman and general manager (c).

The office of a company, not registered under the Act, was closed, and a notice posted on the door that the business had been transferred to another company. The Court directed service on any five of the directors (d).

In another case, service was directed upon the solicitor and any one of the directors of the company (+).

Where an unregistered company had ceased to carry on business, service at the office which had been, but was no longer, the office of the company was held sufficient (ƒ).

A company having transferred its business and been dissolved eight years before, service on a workman employed on the site where the office, now pulled down, had formerly stood, was held insufficient, although two of the directors appeared (9).

Office demolished or in the tenancy of other parties.

Where the company had no office, the Court directed service on the No office. nine surviving subscribers to the memorandum of association, and on three or four of the principal shareholders (4).

In another case service was directed to be made upon the seven subscribers to the memorandum of association who appeared to be the only persons connected with the company ().

In the case of a mutual company which had no place of business and no directors, service was directed to be made on the secretary and agents of the company, the latter refusing to say who were the members

of the company (k).

A company not registered under the Companies Act, 1862, can be Unregistered

(a) In re Fortune Copper Mining Co., L. R. 10 Eq. 390; and see note to Comp. Act, 1862, s. 39.

(b) Re Petroleum Co., 15 W. R. 29. (c) Re National Credit and Exchange Co., 11 W. R. 161; 7 L. T. 817.

(d) Re Unity General Assurance Association, 11 W. R. 355; 8 L. T. 160. (e) Re London and Westminster Wine Co., 12 W. R. 6; 3 N. R. 26.

(f) Re City of London and Colonial

Affidavit irregularly sworn allowed to be re-sworn.

Enlargement of time to file.

Petitioner resident abroad.

served under the provisions of the Act and this Order, and a windingup order made without serving the individual shareholders of the company (a).

4. Every petition for the winding-up of any company by the Court, or subject to the supervision of the Court, shall be verified by an affidavit referring thereto, in the form or to the effect set forth in Form No. 2 in the third schedule hereto; such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof; and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient primâ facie evidence of the statements in the petition.

Where the affidavit was inadvertently sworn and filed before the petition was presented, the Court allowed it to be re-sworn and again filed, and the order which had been made on the petition to be dated subsequently (b).

Under Rule 73 the time for filing the affidavit may, in a proper case, be enlarged.

In the following cases the time has been enlarged and a winding-up order made, notwithstanding that the affidavit was out of time :

Affidavit sworn within the four days, and sent to be filed on the fourth day. The messenger on arriving at the office at two o'clock found it had been closed at one o'clock, it being the Easter vacation (c). Affidavit not filed until nine days after petition presented (d). Affidavit not filed until the fifth day (e).

The petition was presented on the 5th of January; the petitioner being absent in the country, the affidavit was not sworn until the 10th of January. On the 12th of January, on application for leave to file, notwithstanding time expired, leave was given, a copy of the affidavit to be sent forthwith to the respondents (ƒ).

Where the petitioner was resident in Dantzig, the Court extended the time to ten days (g).

The petition was presented under a power of attorney executed by petitioners resident in Australia to a solicitor in this country. It being therefore impossible for the affidavit to be made by a petitioner