mercial firm, in which one would expect books to be kept with much more exactness than in a case of this kind. The onus was upon the contestant to shew either that there were no books, or if there were books in what respects they were defective. The insolvent says he kept no regular books of account, but he says he kept a day book. What this book contained is not shewn. It should not be presumed in the absence of evidence that it was not possible to ascertain from the entries in it his receipts and disbursements, and the case therefore would seem to fall within sec. 57, in which negligence in keeping the books is imputable to the insolvent. I do not consider that an objection of this nature comes with a good grace from a creditor who signed the deed, and has been paid his composition. I express no opinion as to the position of the assignee in giving up the property under the provisions of a deed which has never been confirmed. I am dealing now only with the insolvent's discharge, and I do not think any sufficient grounds have been shewn for interfering with the order of the Court below. The appeal is therefore dismissed, with costs. Appeal dismissed, with costs. RE UNION FIRE INSURANCE COMPANY. Winding up Act-Practice-Security on appeal-Insurance company. An appeal under the Act respecting the winding up of Joint Stock Companies, 41 Vic. ch. 5, sec. 27, O., cannot be entertained when security has not been given within eight days from the rendering of the final order or judgment appealed from. 66 Where a bond good in form with proper sureties was filed with the clerk of the County Court, on the last of the eight days, though not allowed by the Judge: Held, to be within the words, given security before a Judge," and a sufficient compliance with the Act, though a person thus filing a bond without allowance risks being deprived of his right of appeal in the event of the bond proving defective. The Act applies to an Insurance Company incorporated by the Province of Ontario, notwithstanding that ch. 160, R. S. O., provides a separate mode of distributing the deposit made by the company with the Provincial Treasurer. An order for compulsory winding up, may be made under section 5, notwithstanding a resolution had been passed by the shareholders of the company, providing for the voluntary winding up of the affairs thereof under the supervision of the Directors of the company, and a committee of shareholders appointed by them for that purpose. This not being an extraordinary resolution under sec. 4, sub-s. 3, under the circumstances appearing in the judgment: Held, that the discretion of the Judge appealed from had not been improperly exercised. APPEAL from the order of the Judge of the County Court of York (MacKenzie), directing the winding up of this company, which came on to be argued before Burton, J. A., on the 14th June, 1882. Before the order had been obtained, the company passed a resolution providing for a voluntary winding up of its affairs, by the Directors of the Company and a committee of the shareholders of the company, appointed by the directors for that purpose. The other facts and the points involved, appear sufficiently in the judgment. Bain, in support of the appeal. June 30, 1882. BURTON, J. A.-This is an appeal from an order made by the learned Judge of the County Court of York for the compulsory winding up of this company under the Ontario Act for the winding up of joint stock companies. A preliminary objection was taken on the ground that the security required by the 27th section was not given within the eight days named in that section, to which it was answered that that question had been disposed of by Mr. Justice Morrison on a motion to strike out the appeal. I have conferred with my learned brother, and find that he abstained from any opinion upon the question, simply declining to strike out the appeal, but leaving the respondents at liberty to raise the question on the argument of the appeal. It appeared to me upon the argument, and I still retain the opinion, that if the security had not been given until after the eight days, this Court could not have entertained the appeal. The terms of the Act of Parliament are prohibitory, and leave no discretion in the Court, and it may be questionable, as was suggested in Retemeyer v. Obermuller, 2 Moo. P. C. C. 99, whether the omission could be cured by any waiver or implied consent on the part of the respondents. In the present case a bond, with sureties admittedly sufficient, was filed with the clerk of the Court on the last of the eight days, and I am called upon to place a construction upon the words, "given security before a Judge," which have unfortunately been imported into our Ontario statute from the Insolvent Act, terms which perhaps have a well understood meaning in the Province of Quebec, but which are not familiar to us in this Province. I should have supposed that they meant allowed by the Judge; but in view of the shortness of the time allowed, and the frequent absence from the county town of the Judge in the discharge of his judicial duties, I feel disinclined, unless compelled to do so, to place so strict a construction upon the language employed, although I think it is to be regretted that words more readily understood had not been used. RE UNION FIRE INSURANCE COMPANY. 785 I think I must hold that a bond which is now shewn to be good in form, and executed by sureties admitted to be sufficient, was good at the time it was filed in the proper Court, and was sufficiently before the Judge for this purpose, although it is needless to add that a party so acting, without getting the bond allowed by the Judge before filing, is exposed to the risk of being deprived of his right to appeal in the event of the bond proving ultimately defective in any particular. I proceed, then, to consider the case on the merits. Mr. Bain contends that notwithstanding the generality of the second section, this Act was not intended to apply to insurance companies, basing his contention chiefly upon its inconsistency with the 21st section of the Insurance Act, R. S. O. ch. 160, which provides for the administration of the deposit with the Government required by that Act in the mode there pointed out by the Court of Chancery. It does not strike me that there is much force in the objection, although there is room perhaps for legislative action so as to render it unnecessary to resort to two tribunals when a company is in liquidation. The petition for the winding up in this case was presented on the 24th of November, to be heard on the 30th of the same month, and in the interval a policy-holder filed a bill in Chancery seeking to administer the fund in the hands of the Provincial Treasurer, upon which a consent decree was obtained, and an order appointing a receiver made on the 29th. It was filed by parties claiming to be contributories, and said to represent a fifth of the whole stock, and it is opposed on two grounds: 1st. That in view of the proceedings now going on in Chancery it is not "just and equitable" that the order for winding up compulsorily should be made; and 2nd. That there was no power in the learned Judge to make the order, inasmuch as the right to wind up compulsorily only arises where no such resolution as is before referred to in the Act has been passed. 99-VOL. VII A. R. 786 ONTARIO APPEAL REPORTS. It may be well to deal with the last objection first, as if well founded it will be unnecessary to consider the other. Section 4 of the Act contains the provisions which declare when companies may be wound up. Sub-section 1 provides that where the period fixed for the duration of the company by its charter has expired, or the event has occurred, upon the happening of which it is provided by the charter that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up, neither of which contingencies has arisen in this case. Sub-sec. 2: Where the company has passed a special resolution that is to say, a resolution passed by a majority of not less than three-fourths of such members of the company for the time being entitled to vote as may be present in person or by proxy at any general meeting, of which notice specifying the intention to propose such resolution has been duly given, and having been passed has been confirmed by a majority of the members entitled to vote at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less. than fourteen days, nor more than a month from the date of the meeting at which the resolution was first passed requiring the company to be wound up. And sub-section 3: Where the company (though it may be solvent as respects creditors) has passed an extraordinary resolution that is to say, a resolution passed in the manner above referred to as necessary for a special resolution, though without the confirmation necessary for it, 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. It is not pretended that any special resolution was passed under sub-sec. 2, and it cannot be successfully contended that the resolution which was passed was an extraordinary resolution within sub-sec. 3, or to the effect there mentioned. It is clear, therefore, that the learned Judge had power |