were secured by a floating charge on all the property of the company. There was a condition that the company should not be at liberty to create any charge upon its freehold or leasehold property in priority to the debentures. The title-deeds of such property were left in the possession of the company, and were, subsequently to the issue of the debentures, deposited with the company's bank to secure an overdraft. The bank had then no notice of the existence of the charge created by the debentures. In the liquidation of the company the bank claimed to have a prior charge, and to retain the title-deeds until their debt was paid.

Held, that though, as between equitable incumbrancers, the general rule is that, where other equities are equal, the first in time has priority, that in the present case, having regard to the possession of the title-deeds and other circumstances, the bank had the better equity, and were entitled to priority for their charge.-CASTELL & BROWN, RE, UNION BANK OF LONDON, EX PARTE, Ch.D. Romer, J., 248.

8. Debentures-Redemption—" Redeemable" sinking fund-Prospectus.-Debentures issued by a company provided that the company should carry to the credit of a sinking fund in each half-year the sum of £2,500 which should be applied in redeeming at a specified premium, on the 1st of January and the 1st of July in each year, so many of the debentures issued as the sum from time to time standing to the credit of the sinking fund should suffice to pay off, the particular debentures to be redeemed on each occasion being determined by half-yearly drawings. The prospectus which the company had previously issued, inviting subscriptions for the debentures, stated that they were to be redeemable within seventeen years by halfyearly drawings on the 1st of January and the 1st July in each year by the application of a sinking fund of £5,000 per annum.'

Held, that, even if the prospectus could be looked at in order to ascertain the contract between the company and the debenture-holders, the word "redeemable" meant only that the debentures were to be liable to redemption during the seventeen years, but that there was no obligation upon the company that they should all be redeemed within that period.

Semble, however, that the debentures contained the whole contract between the company and the debenture-holders, and that the prospectus could not be looked at for the purpose of interpreting the contract.-CHICAGO GRANARIES Co., RE, MORRISON v. SAME, Ch.D. North, J.

9. Debenture-holders-Floating security-Execution creditor-Sheriff—Priority.—A trading company issued first mortgage debentures payable on the 31st of December, 1898. They were secured by a floating charge upon all the property of the company. Indorsed on the debentures was the provision that they should become payable "if an order is made, or an effective resolution is passed, for winding up the company"; also, "whenever the trustee of the within-mentioned trust deed shall have entered upon the mortgaged premises comprised in the trust deed, or appointed a receiver or receivers under the provisions therein contained." A further condition was that no part of the property subject to the security should be dealt with except in the ordinary course of business of the company.

The debenture-holders were entitled to the benefits and subject to the conditions of the said trust deed, which vested in a trustee for the benefit of the debenture-holders the leasehold property and

the uncalled capital of the company, and gave to such trustee the right to call upon the company to vest in him all the property of the company, but the company was left free-until the trustee or the debenture-holders took action on the happening of any of certain events contemplated by the deed, one of which was "If any execution, sequestration, extent, or other process of any court or authority is sued out against the property of the company for any sum whatsoever," or until the happening of any of the events contemplated by the terms of the debentures-to carry on the business and deal, but only in the ordinary course of business, with the assets of the company.

The plaintiffs obtained judgment against the company for a sum of money, and a writ of fi. fa. was issued, under which the sheriff seized certain goods in the possession of the company which were charged by the debentures. The claimant then, for himself and the other debenture-holders, claimed the goods as theirs under the debenture securities. The sheriff thereupon interpleaded. The due date of the debentures had not then arrived, nor had any winding-up resolution been passed. No receiver had been appointed, nor had the trustee put in force his powers under the trust deed.

Held, that the rights of the debenture-holders prevailed against those of the execution creditor. The seizure under the execution on the judgment was not a dealing by the company in the ordinary course of business within the condition indorsed on the debentures. The security had become enforceable by reason of the fact that an execution had been sued out against the company. The goods seized were charged with the payment of the amount of the debentures, which exceeded the value of the goods, and the judgment debtor had therefore no interest in the property seized available to satisfy the judgment debt.--DAVEY V. WILLIAMSON, Q.B.D., 571.

10. Directors-Breach of trust-Ultra viresParties to sue-Laches-Statute of Limitations— Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 8—Manchester, Sheffield, and Lincoln (Various Powers) Act, 1891 (54 & 55 Vict. c. cxiv.), 88. 45, 47.-In July, 1890, the plaintiffs contracted with the Railways and General Co. (Limited) for the sale of certain stock in the Wrexham, Mold, and Connah's Quay Railway. The real purchaser, however, was the Manchester, Sheffield, and Lincoln Railway, and the money was paid by that company in two sums, the larger on the 5th of August, and the smaller on the 10th of October, 1890. These payments were then ultra vires. But by their Act of 1891 they were authorized to subscribe towards the undertaking of the Wrexham Co., and to hold shares therein, and a resolution authorizing the Manchester Co. to so subscribe was agreed to the day after the Act passed. The books of the Manchester Co. did not accurately represent the facts. The writ was issued on the 6th of August, 1896. claiming against three of the directors repayment to the company of these sums.

Held, (1) that the purchase was not a subscription within the meaning of the Act of 1891, and was therefore ultra vires.

(2) That, as to the larger sum, the writ not having been issued within six years and no fraud being alleged, the Statute of Limitations afforded a good defence.

(3) That, as to the smaller sum, the evidence showed that the plaintiffs had purchased shares to enable them to bring the action, and that they

were aware of the purchase by the Manchester Co. before October, 1890, and that, under the circumstances, therefore, the action ought to have been brought by the company and not by the plaintiffs.-WHITWAM v. WATKIN, Ch.D. Stirling, J.

11. Directors Qualification - Casual vacancy — Calls on shares-Invalidity.--A clause in the articles of association of the A. Co. provided that any acts done at any meeting of the directors should, notwithstanding that it should be afterwards discovered that there was some defect in the appointment of such directors, or that they were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director.

N., who had been duly appointed a director of the A. Co., transferred all his shares, and for a few days was without a director's qualification. After re-acquiring his qualification he, without being formally re-elected, acted as a director, and, in conjunction with his co-directors, made a call on the shares.

Held (reversing Ridley, J.), that the acts done. by N. in his capacity of a director were validated by the clause in the articles of association (as above set out).

Further, the clause operates not only as between the company and its members, but also as between the company and third parties.

Howbeach Coal Co. v. Teague, 8 W. R. 264, 5 H. & N. 151, explained.—Dawson v. AFRICAN TRADING CO., C.A., 132.

12. Mortgage-Receiver - Principal and agentLiability for goods ordered.-By an indenture of second mortgage all the land and property, and all the business and undertaking of a limited company were conveyed to the appellant as trustee for the second debenture-holders. By this deed it was provided that the trustee might appoint a receiver of the mortgaged premises, who should have power to enter into possession and carry on the business, and that the person so appointed should be the agent of the company, who alone should be liable for his acts and defaults. The trustee appointed K. receiver, the instrument appointing him containing certain regulations as to payment of money received into the appellant's bank, and that cheques drawn by him should be countersigned by the appellant's solicitor, who was also chairman of the company. Immediately after his appointment the receiver entered into possession and carried on the business, and goods were ordered by him signed in the company's name, with the addition "K., Receiver." Soon after the appointment of the receiver, an order was made for the compulsory winding up of the company, and a liquidator was appointed, who, however, did not displace the receiver. K. continued to carry on the business, and, in the course of doing so, ordered goods from the respondents in the abovementioned form.

Held, in an action brought by the respondents against the trustee for the price of the goods supplied to the receiver's order, that the receiver was agent for the mortgagors (the company), and that the trustee was under no liability.

Decision of the Court of Appeal ([1896] 1 Q. B. 669) reversed.—Gosling v. GASKELL, II.L., 208.

13. Reduction of capital-Capital lost or unrepresented by available assets—Arrears of dividends on preference shares-Inequality of reduction-Conversion of preference into ordinary shares.—An incorporated society whose articles of association did

not give power to modify rights, or to subdivide shares, or to reduce capital, having issued both preference and ordinary shares of £5 each, finding that, owing partly to the defalcations and mismanagement of a former manager and partly to depreciation of property, its capital had been lost or was unrepresented by available assets to the extent of a large amount, and also that the arrears of dividends on the preference shares amounted to a considerable sum, added to its articles of association articles for the above-mentioned purposes, and then prepared a scheme which was approved by a majority of each class of shareholders, under which some ordinary shares which had been transferred to the society were cancelled, the preference shares were reduced to £2 shares and then divided into £1 shares, the ordinary shares were reduced to shares of 10s. each and then consolidated into £1 shares, the arrears of dividends on the preference shares were cancelled, and the preference shares were made to rank pari passu with and to have only the rights and privileges of ordinary shares.

The society then petitioned the court to confirm the reduction of its capital and to approve minutes for registration. The petition was unopposed.

The court confirmed the reduction and approved the minutes.-NATIONAL DWELLINGS SOCIETY, RE, Ch.D. North, J.

14. Register-Inspection-Right to take extractsCompanies Act, 1862 (25 & 26 Vict. c. 89), s. 32.The right of inspection under section 32 of the Companies Act, 1862, includes the right of taking copies of the register.-BoORD v. AFRICAN CONSOLIDATED LAND Co., Ch.D. North, J., 150.

15. Sale of undertaking-Bonus to directorsUltra vires-Notice of purpose of extraordinary meeting-Sufficiency of notice-Companies Clauses Act, 1845 (8 Vict. c. 16), ss. 71, 85, 86.-The directors of the C. Co. entered into a provisional agreement for the sale of their undertaking and assets to the T. Co. One of the terms of the agreement was that a lump sum should be paid to the directors and secretary of the C. Co. as compensation for loss of office. The agreement was conditional upon its adoption by the shareholders of the C. Co. in general meeting. The notice convening the meeting stated that the purpose of the meeting was to consider and, if advisable, approve the terms of the agreement.

Held, (1) that the agreement was not ultra vires on account of the compensation to be paid to the directors and secretary; but (2) that the notice convening the meeting did not sufficiently disclose the nature of the business to be considered at the meeting, and did not, therefore, comply with the provisions of section 71 of the Companies Clauses Act,

1845.

Southall v. British Mutual Life Assurance Society, 19 W. R. 865, L. R. 6 Ch. App. 614, discussed.

Hutton v. West Cork Railway Co., 31 W. R. 827, 23 Ch. D. 654, distinguished.-KAYE v. CROYDON TRAMWAYS Co., C.A., 405.

16. Shares-Contract-Conditional application for shares-Repudiation--Opposing winding up petitionVoid contract.-A conditional applicant for shares in a company before allotment, to whom shares are allotted, may repudiate his shares if the conditions specified in his application are not fulfilled, as there is no conseusus ad idem, and therefore there is no contract between the company and the applicant.

This right of repudiation is not taken away by his appearance on a petition to wind up the com

pany as a contributory opposing such a petition.BRINSMEAD & Co., RE, TOMLIN'S CASE, Ch.D. Wright, J., 171.

17. Shares- Contract - Fully paid-up shares Registration of subsidiary contract only- Companies Act, 1867 (30 & 31 Vict. c. 131), s. 25.-The contract to be registered under section 25 of the Companies Act, 1867, prior to the issue of shares as fully paid must, in order to comply with that section, set forth all the material terms of such contract.

Therefore, where a subsidiary agreement only was filed, which recited merely that by another specified agreement, "for the considerations therein mentioned," it was agreed that certain shares should be allotted as fully paid up,

Held, that such registration was insufficient to protect the allottees.-KARASKHOMA SYNDICATE, RE, C.A., 37.

18. Shares Contract - Fully paid-up shares Statement of consideration-Particularity-Rectification of register-Order—Companies Act, 1867 (30 & 31 Vict. c. 131), s. 25.-The contract to be registered under section 25 of the Companies Act, 1867, prior to the issue of shares as fully paid, must, in order to comply with that section, describe with some degree of particularity the consideration given for the shares. A mere recital in the filed contract to the effect that, by a previous unfiled agreement, it was agreed to allot the shares in consideration of the sale to the company of "the businesses and property mentioned in the first part of the schedule" to the previous agreement and "the leasehold hereditaments, short particulars of which are set out in the second part" of the same schedule, does not describe the consideration with sufficient particularity.

Form of order for rectification of register.MAYNARDS, RE, Ch.D. Kekewich, J., 346.

19. Shares-Contract-Option of taking sharesVoluntary liquidation-Damages for breach of contract.-The fact that a company has given to any person the option of taking its unissued shares at a future date at an agreed price does not fetter the company in any way in the conduct of its business in the interval, and it may exercise all the powers conferred upon it by the memorandum of articles of association, and either dispose of its business to another company or agree to a voluntary liquidation.

After liquidation proceedings have commenced a person holding an option of taking shares is entitled, if he chooses to exercise his option, to have shares issued to him and to be put on the list of contributories, and if the liquidators refuse to do so, the measure of his damages is his share in the existing assets of the company after deducting the price he had agreed to pay for the shares.HIRSCH v. BURNS, H.L.

20. Trade-name-Similarity-Name of new company incorporating name of existing company — Companies Act, 1862 (25 & 26 Vict. c. 89), s. 20.-In 1888 the M. Co. and the N. Co. were carrying on business as separate limited companies, and continued to do so until 1897. In the latter year the N. Co. sold its business to R., who converted it into a company under the registered title of the N. and M. Co. The M. Co. having brought an action against the N. and M. Co. claiming an injunction,

Held, that the N. and M. Co. must be restrained from using a name which included the name of the M. Co., and so nearly resembled the same as to be calculated to deceive the public, or induce the

belief that the business carried on by the defendant company was the same as the business carried on by the M. Co., or in any way connected therewith.

The registration of the name of a limited company which includes the name of a town or place gives no monopoly to that company of the particular name so as to prevent its use by any other limited company, provided such use is not calculated to deceive the public.-MANCHESTER BREWERY CO. v. NORTH CHESHIRE AND MANCHESTER BREWERY Co., C.A., 515.

21. Winding up-Arrears of interest-Statutory powers-Specialty debt-Statute of Limitations (21 Jac. 1, c. 16)-Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27), 8. 3-Companies Clauses Act, 1863 (26 & 27 Vict. c. 118), 88. 22, 23.-Section 27 of the Companies Clauses Act, 1863, provides for the recovery of interest in arrear by action or suit against the company. The issue of warrants for arrears of interest does not operate as a satisfaction of the claims for interest. The cause of action is therefore in respect of a specialty debt, and is not within the Statute of Limitations, but of the Real Property Limitation Act, 1833, and the period of limitation is therefore twenty years and not six.CORNWALL MINERALS RAILWAY Co., RE, Ch.D. Vaughan Williams, J., 5.

22. Winding up-Companies Arrangement Act, 1870 (33 & 34 Vict. c. 104)-Colonial creditor— Pleading-Foreign court.-Although the Companies Arrangement Act, 1870, extends to all creditors when their rights are in question in the courts of the United Kingdom, that Act does not extend to the Colonies; and therefore the proceedings in our courts cannot be pleaded in Victoria as a defence to an action by a Victorian creditor.

Gibbs v. Société des Métaux, 25 Q. B. D. 399, 39 W. R. Dig. 57, approved.-NEW ZEALAND LOAN AGENCY v. MORRISON, P.C., 239.

23. Winding up-Contributory-Removal of name -Fraud-Mistake as to identity of company.— Where a person is fraudulently induced to take shares in a company by reason of the misrepresentation that it is another company of very similar name, there is no contract at all, and he is entitled to have his name removed from the list of contributories in the winding up, though he has taken no steps to repudiate his shares before the company was wound up.

Cundy v. Lindsay, 26 W. R. 406, 3 App. Cas. 459, followed. - INTERNATIONAL SOCIETY OF AUCTIONEERS, RE, BAILLIE'S CASE, Ch.D. Wright, J., 187.

23A. Winding up-County court-JurisdictionStatement of affairs-Refusal of director to submit statement Companies (Winding up) Act, 1890, s. 7. -Where a company is wound up in a county court, and the official receiver has required a director of the company to submit a statement of affairs of the company under section 7 of the Companies (Winding up) Act, 1890, if the director refuses, the county court judge has jurisdiction, notwithstanding sub-section of section 7, to make an order directing the director to submit the statement.-NEW PAR CONSOLS, RE (No. 2), Q.B.D.

24. Winding up-Debentures-Floating charge Preferential payment - Retrospective - Preferential Payments in Bankruptcy Act, 1888 (51 & 52 Vict. o. 62)-Preferential Payments in Bankruptcy Amend ment Act, 1897 (60 & 61 Vict. c. 19).-The Preferential Payments in Bankruptcy Act, 1897, is not retrospective in its action, so that those persons

who, under the Act, are given priority for their wages, &c., over the debenture-holders are not entitled to the benefit of the Act where a receiver was appointed by the debenture-holders before the date when the Act came into force.-WAVERLEY TYPEWRITER, RE, D'ESTERRE v. WAVERLEY TYPEWRITER, Ch.D. Wright, J., 685.

the

25. Winding up-Defunct company-Petition— Advertisement Companies Act, 1880, s. 7-Companies Winding-up Rules, 1890, r. 35.-Where Registrar of Joint-Stock Companies has struck the name of a defunct company off the register under section 7 of the Companies Act, 1880, the proper remedy of a creditor is to petition for a winding-up order. In such a case, special directions as to service of the petition must be obtained, as neither rule 35 of the Companies Winding-up Rules, 1890, nor the provisions as to service in the Act of 1880, apply. ANGLO-AMERICAN EXPLORATION Co., RE, Ch.D. Vaughan Williams, J.

26. Winding up · Directors' fees — Creditors Articles of association-Fixed remuneration-Companies Act, 1862 (25 & 26 Vict. c. 89), s. 38 (7).— Where articles of association fix the fees of directors at a specific sum they are entitled to prove in the winding up with other creditors for such fees as were due at the date of the liquidation; for the fees being fixed by the articles, they were impliedly part of the contract between the company and the directors when they accepted their office. The directors therefore stand in the position of ordinary creditors, and not of members of the company, in regard to those fees; and section 38, subsection 7, of the Companies Act, 1862, does not apply.

Ex parte Cannon, In re Leicester Club Racecourse Co., 34 W. R. 14, 30 Ch. D. 629, distinguished.

In re Dale and Plant, 38 W. R. 409, 43 Ch. D. 255, followed. NEW BRITISH IRON Co., RE, BECKWITH, EX PARTE, Ch.D. Wright, J., 376.

tribution

articles

27. Winding up-Distribution of surplus assetsArticles of association-Repayment-Unequal conthe – Equalization. — If of association of a company provide that, in the event of winding up, if the surplus assets (after payment of all debts and liabilities) shall be insufficient to repay the whole of its paid-up capital, such surplus assets shall be distributed so that, as nearly as can be, the losses shall be borne by members in proportion to the capital paid, or which ought to have been paid, at the commencement of the winding up other than amounts paid in advance of calls, and if at the commencement of the winding up some of the shares are fully and some partly paid up, the amounts paid up on the shares must be equalized by a call, actual or in account, on such partly-paid shareholders, and when the amounts paid by all the shareholders is thus made equal, the surplus assets are to be distributed equally.-ANGLO-AUSTALIAN CORPORATION OF WEST AUSTRALIA, RE, Ch.D. Wright, J.,

413.

28. Winding up-Distribution of surplus capitalFully paid and partly paid shares-Nominal amount of shares-Equalization--Unlimited liability.-In the case of a company not constituted under the Companies Acts, reference must be made to the deed or instrument under which it is constituted as to the distribution of surplus assets in the winding up. If the deed or instrument contains any provision with regard to the surplus, effect must be given to it; but a provision governing dividends ought not of itself to govern a distribution of surplus. If the

capital of the company is limited by shares of an equal or commensurable amount, the same consequences ought to follow as if it were so limited under the Companies Acts.

Thus, where a company was constituted under a deed of settlement in 1835, and one of the clauses of that deed provided that upon a winding up, the residue, after payment of debts, &c., "was to be divided among the several proprietors for the time being in proportion to their respective shares," and part of the shareholders had paid for their shares in full, and others in part only: on the winding up of the company after payment of all debts and return of the paid-up capital, the surplus should be distributed in proportion to the nominal amount of the shares without regard to the manner in which dividends were payable or had been paid.

Somes v. Currie, 1 K. & J. 605, 3 W. R. Dig. 76, and Sheppard v. Scinde, Punjaub, and Delhi Railway Co., 36 W. R. 1, distinguished.-DRIFFIELD GAS Co., RE, Ch.D. Wright, J., 411.

29. Winding up-Memorandum of association— Ancillary clauses Substratum gone. "Just and equitable"-Companies Act, 1862, (25 & 26 Vict. c. 89), s. 79, sub-section 5.-A company formed to carry on a temporary business as its main object, but whose memorandum of association also stated other object clauses, not as defining a succession of objects different to the main object, but as referring to matters incidental to it, should be wound up and its surplus assets distributed among the shareholders by its directors, when the temporary business which was its main object has been accomplished, for it would be ultra vires to carry on any other business mentioned in the ancillary clauses.

Where, however, the directors propose to carry on such ancillary business instead of winding up the company, the court, on a shareholder's petition, will make a compulsory_order.

Ex parte Fox, 18 W. R. 1083, L. R. 6 Ch. App. 176, distinguished.—AMALGAMATED SYNDICATE, RE, Ch.D. Vaughan Williams, J., 75.

30. Winding up Misfeasance PromotersDirectors-Secret profit-Companies (Winding-up) Act, 1890 (53 & 54 Vict. c. 63), s. 10.-In January, 1893, a syndicate of thirty-three members, of whom four were the founders and trustees as well as members, was formed to purchase the property known as "Olympia," then belonging to a company in liquidation, with a view to the resale thereof, either to a company to be registered under the Companies Acts, or to some other purchaser. Each member signed a form of agreement which, after reciting the object of the syndicate, provided that each subscriber was to subscribe a certain amount, paying a deposit on signing the agreement, and that the trustees were to do their best to purchase "Olympia" on behalf of the syndicate, and to resell it at such reasonable advance in price as would cover the charges and expenses and yield a bonus for division amongst the subscribers. The trustees also had power to purchase as an interim investment, any first mortgage bonds of the company in liquidation; and the syndicate accordingly purchased certain debentures for £100,000, and a second mortgage for £10,000, on the property, at very low prices. In February, 1893, "Olympia' was sold by auction by the chief clerk in the debenture-holders' action against the company in liquidation, to one of the trustees of the syndicate, acting for the others, for the sum of £140,000, which was sufficient, after. paying the expenses of the liquidation, to pay in

respect of the debentures and mortgage a sum giving a profit of over £20,000. By an agreement of March, 1893, entered into between the trustees of the syndicate and a trustee for an intended company (registered on the same day as Olympia (Limited)), the property was sold to the company for £180,000. One of the objects of Olympia (Limited), as stated in its memorandum of association, was to adopt and carry into effect the agreement of March, 1893, which was afterwards adopted by the company; and in a prospectus issued to the public, inviting subscriptions for shares and debentures, the fact was disclosed that the directors were also the vendors. The price paid by them for the property, and the price to be paid by the company was also disclosed, and the date and names of the parties to the agreement of March, 1893, were stated; but the profit made out of the debentures and mortgage was not stated. A summons was taken out by the official receiver and liquidator asking for a declaration that the four syndicate trustees were guilty of misfeasance or breach of trust in that they, being promoters and directors of the company, had secretly obtained and retained for their own use out of the purchasemoney paid by the company for Olympia the sum of £6,341 (being the share of the four syndicate trustees in the profit of £20,000 made out of the debentures and mortgage); and that they might be ordered to pay that sum with interest.

Held, that the four syndicate trustees owed a duty to the company to inform the company of the profits which the four syndicate trustees had made at the expense of the company; that the fact that the company which had thus been kept in the dark as to these profits could not now rescind was no bar to relief; and that the four syndicate trustees were jointly and severally liable to replace the sum of £6,341.-OLYMPIA, RE, C.A.

31. Winding up-Mortgage of uncalled capitalDebenture-holders-Unsecured creditors-PriorityCompanies Act, 1879 (42 & 43 Vict. c. 76), s. 5.—The M. Co. had power under its memorandum and articles of association to borrow money and issue debentures charged on (inter alia) its uncalled capital. Before this power was exercised the company, by special resolution, declared that a portion of the uncalled capital should "not be capable of being called up except in the event of and for the purpose of the company being wound up in accordance with the provisions of the Companies Act, 1879." The directors afterwards created and issued debentures charged on the company's undertaking and property, "including its uncalled capital for the time being." company having gone into liquidation, and a winding-up order having been made, the liquidator called on the contributories for payment of that portion of the capital (the reserve capital) to be called up only in the event of a winding up.

The

The assets of the company, including the reserve capital, not being sufficient to pay the costs of the winding up and the creditors of the company, the debenture-holders claimed to have a valid first charge on the reserve capital, and to be entitled to be paid in priority to the other creditors and to the costs of the winding up.

Held, that the company had no power to create any charge on that portion of its capital which could only be called up in the event of and for the purpose of the company being wound up.

In re Pyle Works, 38 W. R. 674, 44 Ch. D. 534, distinguished.

Decision of Wright, J., ante, p. 199, affirmed.

MAYFAIR PROPERTY CO., RE, BARTLETT v. MAYFAIR PROPERTY Co., C.A., 465.

32. Winding up-Practice-Statutory affidavitSupplemental affidavits-Notice of filing-Companies (Winding up) Rules, 1890, r. 36-Rules of March, 1893.-It is not necessary to give notice of the filing of the statutory affidavit in support of a winding-up petition, but such notice should be given in respect of the filing of additional or avoid supplemental affidavits to unnecessary adjournments being made in order to answer such affidavits.

In re New Weighing Machine Co. (Limited), 101 L. T. 8, [1896] W. N. 48, explained.-BRITISH CYCLE MANUFACTURING CO., RE, Ch.D. Wright, J.

33. Winding up-Promoter-Liability to account or make compensation" Moneys or property of the company"-Money had and received to the use of the company-Companies (Winding up) Act, 1890 (53 & 54 Vict. c. 63), s. 10.-Where it was sought to make a promoter of a company account to the company, under section 10 of the Companies (Winding up) Act, 1890, for promotion money received by him from the vendor,

Held, on the facts (reversing the decision of Wright. J., ante, p. 314), that the defendant was under no obligation to acccunt to the company.

Semble, money had and received to the use of the company, but not its property till received by the promoter, is included in the term moneys or property of the company" in section 10 of the Winding up Act, 1890.-SALE HOTEL CO., RE, HESKETH'S CASE, C.A., 617.

34. Winding up-Scheme sanctioned by the courtSurplus assets-Management expenses-" Undistributed assets"--Joint-Stock Companies Arrangement Act, 1870 (33 & 34 Vict. c. 104), s. 2—Companies (Winding up) Act, 1890 (53 & 54 Vict. c. 63), s. 15 (3).-Where a scheme of arrangement, which had been sanctioned by the court, under section 2 of the Joint-Stock Companies Arrangement Act, 1870, provided that the liquidator should employ any surplus he had from calls, after paying a dividend on the debentures, in payments necessary or expedient for keeping up the company's property, &c., such surplus should be retained in the hands of the liquidator for the purposes named in the scheme; and the Board of Trade is not entitled to demand that he should pay such surplus into the Companies Liquidation Account under section 15 of the Companies (Winding up) Act, 1890, for the special legislation provided by the scheme is not to be overridden by the general legislation of that section, this surplus not being "undistributed assets" within the meaning of the section.-LAND MORTGAGE BANK OF FLORIDA, RE, Ch.D. Wright, 333.

J.,

35. Winding up-Set off-Insolvent company holding shares-Set off of debt against calls-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 38-Companies Act, 1862 (25 & 26 Vict. c. 89), 88. 16, 38, 101Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10.— The G. Co. (Limited) held shares in the A. Co. (Limited), and before either company went into liquidation calls were made on the shares, and the A. Co. became indebted to the G. Co. for money lent.

The A. Co. was ordered to be wound up by the court, and the G. Co., being insolvent, passed an extraordinary resolution for voluntary winding up.

Held, that section 10 of the Judicature Act, 1875, did not enable the liquidator of the G. Co. to set