Examination and discovery under s. 115 of the Act. S. 115 of the Act provides that, "the court may, after it has made an order for winding-up a company, summon 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 to be indebted to the company, or any person whom the court may deem capable of giving information concerning the trade, dealings, estate, or effects of the company; and the court may require any such officer or person to produce any books, papers, deels, 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; nevertheless, in cases where any person claims any lien on any 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." Formal parts: see supra, Form 313. 18-, at S. 115. A. B. of, &c., and E. F. of, &c., are hereby severally summoned to Form 524. attend at the chambers of the Master of the Rolls [or Vice-Chancellor Summons to -], in the Rolls Yard, Chancery Lane [or No. -, Lincoln's-Inn], attend for in the county of Middlesex, on day of of the examination. clock in the noon to be examined on the part of the official liquidator [or of W. D. of &c.] for the purpose of proceedings directed by the Master of the Rolls [or the said Vice-Chancellor], to be taken before me in the above matter. [And the said A. B. is hereby required to bring with him and produce, at the time and place aforesaid, a certain indenture [describe documents], and all other books, papers, deeds, writings and other documents in his custody or power in anywise relating to the above-named company.] Dated this day of 18-. G. H., Chief Clerk. in the This summons was taken out by Messrs. C. & D. of county of, solicitors for the official liquidator [or for the said W. D.1. The attendance of a witness for examination under s. 115 of the Act, should be secured by chief clerk's summons as above (which is copied from Form 54 in Schedule to Rules), and not by subpoena. In order to procure the issue of the summons an appointment should be obtained, and if the circumstances stated to the chief clerk justify, he will issue the summons. See as to the practice, In re Gold Co., 12 C. Div. 82; and Buckley, 239 et seq. Very commonly application is made by summons for the appointment of a special examiner, and for liberty to summon before him certain persons. See infra. If the person summoned does not attend, the court will make an order requiring him to attend. Lisbon Steam Tramways Co., 2 C. D. 575, infra. The power given by this section is frequently exercised especially with a view to proceedings under s. 165 of the Act. See In re Gold Co., ubi supra. Form 525. Order giving liberty to summon. Upon the application of the off. liq., &c., by summons dated 21 April, 1877, and upon hearing the solicitors for the applicant, and upon reading the orders in these matters dated respectively 7 July, 1876, and 4 August, 1876, and the affidavit of B. of service of the said summons on the persons hereinafter named, filed 3 May, 1877: The judge doth hereby appoint M. of, esquire, barrister-at-law, special examiner for the purpose of taking the evidence of witnesses in these matters; And Let the said off. liq. be at liberty to summon before the said special examiner the following persons for the purpose of their being examined respecting the affairs of the said co., that is to say, H. L., R. L., F., S., B. & G. Mendip Hematite, &c., Co., Malins, V.-C., 3 May, 1877. B. 808. Form 526. Another form shorthand notes. Upon the application of P. & W. the off. liqs. of the company, &c., Let J. be appointed special examiner to take the examination, crossproviding for examination and re-examination of the said B. and others in reference to the affairs, property and effects of the above-named company and the other companies amalgamated therewith, And let by consent such examination, cross-examination and re-examination be taken down by a shorthand writer and when taken let the depositions authenticated by the signature of the said examiner be transmitted by him to the [Record & Writ Clerk's Office of the Chancery Division of this court], there to be filed: And order that such depositions may be read in evidence in the course of any proceedings taken in the above matters with the authority of the judge to whose court the same may for the time being be attached. Cape Breton Co. Ld., Malins, V.-C., 11 May, 1878. A. 849. It is very common to employ a shorthand writer in such cases. When the shorthand notes have been transcribed, they must be read over to the witness, and he must be called on to sign the deposition. In re Sir John Moore Mining Co., W. N. 1878, 87. Form 527. Another. Upon the application of J. the official liquidator, &c., that A. & H. might be ordered, upon receiving due and reasonable notice, to attend at their own expense before esquire, the special examiner appointed in these matters, at his chambers, No.-, New Square, Lincoln's-Inn, and be examined pursuant to the Chief Clerk's summons dated 25 May, 1878, and that the said A. & H. might be ordered to pay the costs of the adjournment before the judge in chambers on the 5th of June, 1878, and the costs of and consequent upon the said application which upon [adjourned into court] and upon hearing, &c., and upon reading, &c., Order that the said A. & H. do at such time and place as the said examiner shall appoint attend and be sworn and examined as witnesses in these matters, And order that the costs to be taxed by the taxing master of the applicant of the said application in chambers and occasioned by the adjournment thereof into court including the Form 527. costs of the Chief Clerk's summons dated 23 May, 1878, be allowed out of the assets of the said co. International Contract Co., Hall, V.-C., 29 June, 1878. A. 1330. Another. Upon the application of the off. liq. of co. to examine S. of as a Form 528. witness in these matters, and upon hearing the solicitor for the said off. liq. and the solicitor for the said S., and upon reading an order, &c., Order that the said S. do, upon payment of his proper expenses, attend before Y. of, barrister-at-law, the special examiner appointed in the above matters on the 20th of June, 1877, at 11 o'clock in the forenoon, to be examined on the part of the said official liquidator for the purpose of proceedings directed to be taken by the judge in the above matters, And the said S. is hereby required to bring with him and produce at the time and place aforesaid all books, deeds, writings and other documents in his custody or power in anywise relating to the said co. Saturn Silver Mining Co., 18 June, 1877. B. 1045. Examination of Persons in Scotland. Upon motion, &c., for K. the off. liq. of the above-named co., and upon Form 529. reading the order to wind up the said co. dated 23 Ap. 1866, and the Order under order appointing the said off. liq., and an affidavit of the said K. filed s. 127 of the 19 June, 1877 Order that the sheriff of the county of Inverness, Scot- Act of 1862. land, do summon S. and R. or either or if necessary both of them, the managers or agents of the National Bank of Scotland, at Inverness, aforesaid, to attend before the said sheriff at such time and place as he shall appoint, as witnesses and havers to be examined upon oath on behalf of the said off. liq. with reference to the estate, dealings and affairs of the said co. and also in reference to the estate, dealings and affairs of a contributory or alleged contributory of the said co., and to produce all deeds, books and documents called for which may be in their or either of their possession or power, And that the said sheriff do take such examination orally, and authenticate such examination in writing by his signature, and forward the same to the [Record and Writ Clerk's Office, Chancery Lane, in the county of Middlesex] to be filed in the above matters in due course, and do transmit with such written examination the books, papers, deeds and documents produced before him, or such copies thereof or extracts therefrom as may be necessary, And order that in case the persons so summoned fail to appear, &c. [From this the order follows the words of the section to the end.] And order that the said sheriff do have and exercise all the powers and privileges vested in him for the purposes of or in relation to such examination as aforesaid Form 530. Affidavit of by the Companies Act 1862. Contract Corporation, M. R., 20 Nov. 1877. A. 1131. Section 127 of the Act of 1862 empowers the court to direct the examination in Scotland of any person for the time being in Scotland, whether a contributor of the company or not, in regard to the estate, dealings, or affairs of any company in the course of being 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, and contains provisions as to the mode in which the examination is to be effected. Compromises. S. 160 of the Act provides as follows: "160. The liquidators may, with the sanction of the court, where the company is being wound up by the court or subject to the supervision of the court, and with the sanction of an extraordinary resolution of the company where the company is being wound up altogether voluntarily, compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets of the company or the winding up of the company, upon the receipt of such sums, payable at such times, and generally upon such terms as may be agreed upon, with power for the liquidators to take any security for the discharge of such debts or liabilities, and to give complete discharges in respect of all or any such calls, debts, or liabilities." Pearson's The court has no jurisdiction to compel a liquidator to compromise. case, 7 Ch. 309. In sanctioning a compromise, the court is exercising a judicial discretion, and accordingly evidence of the propriety of the compromise must be forthcoming. Er pte. Totty, 1 Dr. & Sm. 273; 6 Jur. N. S. 849. But the sanction of the chief clerk is sufficient, though, of course, any of the parties can require the matter to be heard by the judge. Ex pte. Garstin, 10 W. R. 457. See further Buckley, 313. A contributory who is unable to pay the calls made on him generally endeavours to effect a compromise. In such case he is very commonly required to make an affidavit as to his means, and if it seems desirable he can be cross-examined thereon. If the official liquidator is satisfied, he will enter into a provisional agreement with the contributory embodying the terms of compromise, and will then apply for the sanction of the court. See Rule 49 & Form 50 in Schedule to Rules. See also Buckley, 313 et seq. The following are some examples of affidavits made by contributories with a view to compromise. Formal parts, see supra: Form 315. 1. I am the holder of 100 shares in the above-named co., and I am unable to pay the two last calls of 51. per share lately made upon me in contributory respect of the said shares. with a view to compromise. 2. The paper writing now shown to me and marked with the letter A contains a full and true account of all the property and effects, real and personal, which I possessed, or in which I had any share or interest in possession, reversion, or expectancy at the time of the stoppage of the said co. on the of, and also of all such parts of my said probeen sold or contracted to be sold, and the price at perty as have since which such sales or contracts have been made, and as nearly as I can Form 530. ascertain the full and true value of all such parts thereof as still remain to be sold. 3. I have no property whatsoever, real or personal, of any description, nor am I entitled either in possession or reversion to any share or interest in any property whatsoever which is not included in the said statement. 4. I have not made away with, incumbered, or charged, settled, or in any manner parted with any part of my property or effects, real or personal, since the failure of the said co. on the 16th of October, 1876, save as appears by the said account. 5. The paper writing now produced and shown to me marked B contains a true and just account of all sums of money received and paid by me since the 16th of October, 1876, down to the 6th of July instant. 6. My income is derived from a salary of 1607. per annum, which I receive from my employers Messrs. D. & C., and such income has not for the last two years exceeded the sum of 1607. per annum. Formal parts: see supra, Form 315. 1. I am settled on the list of contributories of the above-named com- Form 531. pany in respect of 30 shares in the said company. 2. The said shares were purchased and held by me in my own right and not as trustee on behalf of any other person whomsoever. 3. The paper writing now produced and shown to me marked A contains a full and true statement of all the property and effects, real and personal, which I possessed or in which I had any share or interest in possession, reversion, or expectancy at the time of the commencement of the winding-up of the said company on the and of all such parts of my said property as have since been sold or contracted to be sold, and the price at which such sales or contracts have been made. 3. I have no property, &c. 4. I have not made away, &c. of 5. My income is derived from my occupation as a commercial traveller, and amounts to the sum of 4007. per annum and no more, which sum it has not exceeded for two years last past. Out of the said sum I have to apply the sum of 50l. per annum in paying the premium on a policy for 1,000l. effected on my life in the year 6. My said income is barely sufficient for the support of myself and my family, consisting of my wife and three children, and I have no other means of support, and have no property in possession, reversion, remainder, or expectancy, or any prospect of coming into any money or income from the death of friends or otherwise other than that mentioned in the said paper writing marked A. 7. I owe for money borrowed some years ago 5007, and have no means of paying the same. Another. |