Compromise. Assignee from Com. pany. All the powers vested in the Court by the Act of 1862 are cumulative, and go in aid of all the other powers subsisting at law or in equity. By sect. 160 power is given to the official liquidator, with the sanction of the Court, to compromise any debt, call, or liability. (See Chap. XVII.) After an order to wind up, and during the vacancy of the office of official liquidator, all the property of the Company is to be deemed to be in the custody of the Court. (Sect. 92.) Attention should here be drawn to sect. 157, which provides as follows: --- 157. Any person to whom any thing in action belonging to the Company is assigned in pursuance of this Act may bring or defend any action or suit relating to such thing in action in his own name. The power for Companies to refer to arbitration under the Railway Companies Arbitration Act, 1859, may possibly come into use on the winding up. (See sects. 72 and 73.) A copy of the Act is set out at the end of this work. CHAPTER XVII. COMPROMISE OF DEBTS OR CALLS, ETC. The official liquidator may, with the sanction of the Court, settle a general scheme of liquidation, or compromise any debts or calls. See the following sections of the Act. may be sanc. tioned. Sect. 159. The liquidators may, with, the sanction of the Scheme of Court, where the Company is being wound up by the liquidation 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, pay any classes of creditors in full, or make such compromise or other arrangement as the liquidators may deem expedient with creditors or persons claiming to be creditors, or persons having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the Company, or whereby the Company may be rendered liable. compromise. 160. The liquidators may, with the sanction of the Court, Power to 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 Sanction of 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. Rule 49. Every application for the sanction of the Judge to a compromise with any contributory or other person indebted to the Company, shall be supported by the affidavit of the official liquidator that he has investigated the affairs of such contributory or person, and stating his belief that the proposed compromise will be beneficial to the Company, and his reasons for such belief; and the sanction of the Judge thereto shall be testified by a memorandum, signed by the chief clerk of the Judge, on the agreement of compromise, unless any party shall desire to appeal from the decision of the Judge, in which case an order shall be drawn up for that purpose. 50. The direction or sanction of the Judge for any other proceeding or act to be done by the official liquidator shall be obtained upon summons, and an order shall be drawn up thereon unless the Judge shall otherwise direct. The exercise of the power to pay any classes of creditors in full or arrange with them will depend upon general questions affecting either their right to payment, the state and character of their debts, or the assets of the Company. Any compromise with a creditor or person claiming to be a creditor, or the contributories, however, will be governed by the particular circumstances of each case. Every compromise or arrangement must have the sanction of the Court, to be obtained on a summons supported by affidavit. In the case of disputed claims, the circumstances attendant upon such claims will be the desiderata governing the compromise, but where the debtor or contributory is indebted beyond question, then any compromise will depend upon the state of the pecuniary affairs of the debtor or contributory. Where a compromise is submitted to the official liquidator, he will require it to be supported by an affidavit of the debtor or contributory setting out the particulars of his property and his liabilities should he allege himself to be unable to pay. A sketch of this affidavit will be found in the Appendix. The official liquidator may cross-examine upon this affidavit within fourteen days from the filing thereof, but if he is satisfied that the proposal is beneficial to the Company, an agreement to compromise is entered into subject to the approval of the Judge. (See Form.) A summons for liberty to compromise is then taken out by the official liquidator, and is supported by an affidavit by the official liquidator. (Rule 49.) The Court, in considering the application, acts upon the principle that a fair and just offer, having regard to the state of the liabilities of the debtor, ought to be accepted, and that it is not bound to extract the last shilling from the debtor for the sake of benefitting the Company at the expence of his other creditors, or at the risk of driving the debtor into bankruptcy. It will be sufficient for the sanction of the Judge Memoran to the agreement for compromise to be signified by a memorandum in writing on the agreement (see Form). No order is necessary unless any dum. |