Form 356. by them and the sums claimed in respect thereof, OR in default thereof they will be peremptorily excluded from the benefit of the sd judgmt.. Every person holding any debenture is to produce the same before the Vice-Chancellor Sir R. M., at his chambers, situate, &c., on Tuesday, the 19th day of June, 1877, at 12 o'clock at noon, being the time appointed for adjudicating on the claims.

Form 357.

Receiver and manager.

[Signed by Chief Clerk and Plaintiffs' Solicitors.] Advertisements framed as above have been issued in many cases, although it seems doubtful whether the form is quite regular. See Rules of 1883, 809. In some cases the advertisement has been framed as follows:

"Pursuant to an Order of the Chancery Division of the High Court of Justice, made in an action Mowatt v. The London Co-operative Laundry Company, Limited, 1882, No. 2418, the holders of mortgage debentures issued by the defendant company under and in pursuance of an indenture dated the 11th day of August, 1880, made between the said company of the one part, and the defendants Sir A. F. and H. W. of the other part, are required, on or before the 11th day of January, 1883, to send their names and addresses in full, and the amount claimed by them as such debenture holders for principal and interest, and the names and addresses of their solicitors, if any, to J. W. S., of Street, London, E.C., chartered accountant, the receiver and manager appointed in the said action, and are to produce their debentures at the chambers of Vice-Chancellor Sir James Bacon, in the Royal Courts of Justice, Strand, in the county of Middlesex, on Friday, the 19th day of January, 1883, at 12 o'clock noon. Dated this 12th day of December, 1882.”

Upon motion, &c. Order that a proper person be appointed receiver and manager on behalf of the plt and the other above-named debenture holders until judgmt in this action or until further order of all the ppty and assets of the deft co comprised in or subject to the securities or charges created by the mtge debentures issued by the deft co to the plt and the sd other debenture holders, and also to manage and work the mines and generally to carry on the business of the co comprised in the sd securities. And let such receiver and manager from time to time pass his account as such receiver and pay the balances which shall be certified to be due from him or so much thereof as shall be certified to be proper to be so pd into Ct to the credit of this action, Statham v. London Jagersfontein Diamond Mining Company, Limtd, 1883, S. 2604. Chitty, J., 2 June, 1883.

In this case the mines were situate in South Africa.

In actions to enforce mortgage debentures an early application is commonly made for a receiver, or where there is a business to be carried on, for a receiver and manager, and if the company has made default in the payment of principal or interest there is generally but little difficulty in obtaining the appointment. See Hopkins v. Worcester & Bir. Canal, 6 Eq. 437; Perry v. Oriental Hotels Co., 5 C. 420; Peek v. Trimsaran Co., 2 C. D. 115; Boyle v. Bettws Colliery Co., 2 C. D. 726; and infra, Forms 358 et seq.

Where a company is being wound up by the Court it is generally considered desirable, if there is to be a receiver of any part of the assets, that the same person should be both receiver and liquidator. Accordingly, if when the application for a receiver is made, a liquidator has already been appointed, the liquidator is generally appointed receiver; and where a receiver has been appointed

in the action before the winding up, he is sometimes appointed liquidator by Form 357. the Court. If after the appointment of a receiver a winding-up order is made, the receiver (unless he is appointed liquidator) is usually discharged, and the liquidator appointed in his place.

Thus, in Louth v. The Western of Canada Co. (incidentally mentioned in 17 Eq. 1), a receiver and manager was appointed (Malins, V.-C., 31 July, 1873, B. 2170), and the same person was subsequently appointed official liquidator. The same course was adopted in Peek v. Trimsaran Co., M. R., 12 May, 1876. In D'Oyley v. British Chemical Co., the provisional liquidator was appointed receiver. Bacon, V.-C., 29 June, 1876, A. 1657. In Brown v. Wedgwood Co., the same person was by a single order appointed to both offices. Malins, V.-C., 2 Aug., 1875, B. 257. In Perry v. Oriental Hotels Co., 5 Ch. 420, the liquidator was appointed receiver. The same thing was done in Wethered v. Yniscedwyn Co., M. R., Jan., 1877, and in Slater, on behalf, &c., v. Darlaston Steel Co., M. R., 2 June, 1877, B. 1396; M. R., Jan., 1877. In Campbell v. Compagnie Générale de Bellegarde, 2 C. D. 181, an order was made discharging the receiver and appointing the liquidator receiver. Bacon, V.-C. And see Tottenham v. Swansea Co., W. N. 1884, p. 54.

But where the winding up is voluntary the practice is not always followed; and, in any case, special circumstances as to the presentation of the property will be taken into consideration. Boyle v. Bettws Colliery Co., 2 C. D. 726.

Moreover, in Elkins v. Capital Guarantee Soc., where Chitty, J., had, after a supervision, appointed a person who was not the liquidator to be receiver, the Court of Appeal (Cotton and Fry, LL. J.) refused to disturb the appointment, being of opinion that the judge had a discretion, and that Perry v. Oriental Hotels Co., ubi supra, had not established any general principle.

"Upon motion, &c.: Order that a proper person be, upon his giving Form 358. security, appointed to receive the rents and profits of the defts' real Receiver and estate (include leaseholds), and to manage the defts' colliery business, manager. and get in the outstanding debts and effects belonging to the defts. And let the defts deliver over to such receiver all the stock, plant, machinery, and effects of the defts, and all securities in their hands for such outstanding debts and effects, with all books and papers relating thereto, and in case it shall be necessary to put any of the debts in suit for the recovery thereof, the same to be done with the approval of the judge, and the person so to be appointed is to be at liberty to make use of the names of the plts and defts who are to be indemnified therein out of the premes comprised in the security of the plts in the sd affidavit mentd, and out of the sd stock, plant, machinery, and effects. And order that the person so to be appointed do from time to time pass his accounts, and after retaining in his hands such sums as shall be deemed sufficient to carry on the sd collieries, pay the balances which shall be certified to be due from him, in Ct to the credit of this cause of, &c., and [invest and accumulate]." Peek v. Trimsaran Co., M. R., 10 Feb., 1876, B. 246; 2 C. Div. 115. For the subsequent order see B. 670.

For order by consent appointing receivers and managers without security, plaintiffs undertaking to supply funds not exceeding 15,000l. to carry on the business, see Rodewald v. Wayne's, &c. Iron Works, Malins, V.-C., 25 May, 1876; B. 1524. The order is given in Seton, p. 418.

Upon motion, &c. : Appoint C. the prov. liq. of the deft co receiver Form 359. and manager on behalf of the plt and all other the debenture holders of Provisional

be receiver.

Form 359. the deft co of all the ppty and assets of the deft co comprised in or subliquidator to ject to the securities and charge created by the debentures issued by the deft co to the plt and the other debenture holders as in the sd affidavit mentd: And [pass accounts, pay balances, invest and accumulate]. D'Oyley v. British Chemical Co., Bacon, V.-C., 29 June, 1876, A. 1657. As to appointing liquidator to be receiver, see supra, p. 409.

Form 360.

Clerk of com

pany to be receiver and

out security.

Upon motion, &c.: Appoint H., of, the managing clerk of the deft co without his being required to give security, and at his present salary of 21. 58. per week to manage the real and personal ppty and manager with business of the deft co comprised in the indre dated, &c., in the writ in this action mentd, and to receive the rents and profits and produce of the sd ppty and business until further order of this Ct: And order that the defts The - Co, T., and G., deliver over to the sd H., as such receiver, all securities in the hands of them or any of them, together with all books and papers relating to the real and personl ppty and business of the co. [Accounts. Payment. Investment. Accumulation.] Perry [on behalf of, &c.] v. Clutton Hall Coal Co., Malins, V.-C., 22 June, 1876, B. 1698. See Form 349.

Form 361. Upon motion, &c. Let all the hereds and premes comprised in the Sale on motion, indres dated, &c., and all the chattels and things upon or connected with such hereds and premes, and contd in the sd indre, be sold, with the approbation of the judge: And let the proceeds of such sale be pd into Ct to the credit of this action, &c., or otherwise as the judge shall direct: And the plt by his counsel adopting the agreemt hereinafter mentd, Let the agreemt dated 31 Oct., 1877, and made, &c., for the sale of the sd hereds known as the Cwm estate, at the price of 16,0007., be carried into effect, and, Let the monies to arise from the sale of the last-mentd hereds be pd into Ct to the credit of this action, &c., or otherwise as the judge shall direct. Davis v. Ashwin, Hall, V.-C., 27 Nov., 1877, A. 3552. See also the report in 26 W. R. 139.

Under s. 25 of the Conv. and Law of Property Act, 1881, property can be sold in a foreclosure action upon an interlocutory application. Woolley v. Colman, 21 C. D. 173.

Form 362.

Sale in action and winding up.

Upon the applicon of the plts, and upon hearing the solors for the applicants and for the defts: By consent order that the lands, waterworks, and other works of the sd co situate in and about the city of Cadiz, in Spain, or elsewhere, with the benefit of the concessions granted to or for the sd co, and the engines, plant, and machinery belonging thereto, and all other the premes which by the four indres all made between the sd co of the one pt and the plts of the other pt, were granted and assigned to the plts upon trusts for sale as therein mentd, together with the goodwill of the business and the undertaking of the sd co, and

the stores and materials belonging to the sd co now in the possession of Form 362. the plts at Cadiz or elsewhere in Spain, be sold with the approbation of the judge And let the monies to arise from such sale be pd into Ct to the credit of this action of, &c., as regards so much of the same as shall arise from a sale of the premes comprised in the sd indres to an account intituled "Debenture Fund," and as regards so much of the same as shall arise from the sd goodwill, stores, and materials, and any other parts of the premes sold not comprised in the sd indres, to an account to be intituled "General Assets ;" and in the event of all the premes being sold together at one price, order that the proportion of the pchase monies to be carried to such separate accounts be determined as the judge in chambers shall direct, and the defts and their solors Messrs. B. undertaking to give all proper facilities for completion within 12 months from the date of this order, Declare that all the costs now due and owing from the deft co and the plts respively to the sd Messrs. B. both as solors for the deft co and as solors for the plts, are to be treated as a charge upon the afsd proceeds of the sale by this order directed, And order that the same may be taxed by the taxing-master as between solor and client, and, after paymt of the costs of all parties of and incident to the sd sale, be pd in priority to all other charges and paymts out of the first monies which shall arise from the sale hby directed, but so that the fund comprehended in the account "General Assets" be first applied for that purpose. Chisholm v. Cadiz Waterworks, Malins, V.-C., 11 Nov., A. 2102.

contract for

Upon the applicon of the plt, &c. : Let the conditional contract dated Form 363. 2 Mar., 1878, made between the deft co of the 1st part, E. (the receiver Approval of and manager of the ppty of the sd co) of the second pt, and the defts conditional G. B. and J. E. of the third pt, and the Bishwell Coal & Coke Co., sale. Limtd, of the 4th pt, for the sale to the last mentd co at the sum of 15,000/. of the premes therein described, being the leasehold colleries of the deft co, together with the fixtures, fittings, and plant, machinery, and implemts, and effects used in connection with the sd colliery, directed to be sold by the judgmt dated 15 June, 1877, be carried into effect ; such sum of 15,000l. to be pd and satisfied in the manner set forth in the sd contract. Lee [on behalf, &c.] v. Bower, E., and the Bishwell Colleries, Limtd, 1877, L. 104. Malins, V.-C., 22 Mar. 1878, B. 615.

:

lease.

Upon the applicon of K. and B., the trustees for the mtge debenture Form 364. holders of the above named co, and upon hearing the solors for the Approval of applicants, and for the off. liq. of the sd co, and upon reading an order contract for dated 26 June, 1875 [winding up], an affidavit, &c. Let the applicants be at libty to carry out the conditional contract dated the 8th of May, 1876, made between the applicants of the one pt, and the S. Co of the other pt, for the lease to the sd S. Co of the premes therein mentd and comprised. And let the off. liq. have 14 days from the date of this order

Form 364. to remove all ppty from the premes belonging to the above named co not comprised in the mtge by the sd co to the applicants. The Globe New Patent, &c., Co., 24 March, 1876. And see Forms 482 et seq., infra.

Form 365. Receiver to

Upon the applicon of the plt, and upon hearing the solors for the applicant and for the defts, and upon reading orders of 17 May, 1877, borrow 20007. and of 18 May, 1877 [supervision order]. Order that the receivers and managers of the colliery and effects of the deft co be at libty to borrow a sum of money not exceeding 20007. at interest, at a rate not exceeding 8 p. c. p. a., to be repayable within six years, as a first charge, out of the monies to be realised by sale of the ppty of the sd co, pursuant to the sd order dated 15 June, 1877, and meantime to be a first charge on the sd ppty and effects of the deft co. Lee v. Bower, Malins, V.-C., 5 July, 1877, B. 1280.

Form 366. Liberty to borrow from debenture holders.

Form 367. Liberty to raise money to

pay off prior

incumbrances.

Form 368.

Liberty for receiver to appoint attorney.

Upon the applicon of the plts, and upon hearing, &c. Order that the applicants be at libty, in accordance with the resolutions unanimously passed at a meeting of the 1st bondholders held on the 18th March, 1878, to borrow from such of the 1st bondholders as may be willing to subscribe thereto, a sum of 20007. or any smaller sum, for the ppose of enabling the plts to maintain the co's waterworks at Cadiz in efficiency until the sale ordered by the Ct can be carried out, subject however to the order made in this action on the 12th Nov., 1877. Chisholm v. Cadiz Waterworks, Malins, V.-C., 6 Ap., 1878, A. 770.

Compare these with the orders in winding up, giving liberty to borrow. Form 469, et seq.

Upon the applicon of the plt, &c. Let D. the receiver and manager be at liberty to raise a sum not exceeding 60007. upon the security of the ppty and undertaking of the co, for the ppose of paying off the preferential claims of creditors in Germany, and of discharging the claims of creditors who have obtained orders of sequestration of the ppty of the sd co, but the interest to be pd on the sum borrowed is not to exceed 7 p. c. p. a. Gordon [on behalf, &c.] v. Cassel Tramways Co., Bacon, V.-C., 8 July, 1879, A. 1486.

In accordance with the practice mentioned above, p. 409, D. was by an order of 15 July, 1879 [A. 1558], appointed official liquidator of the company.

Upon the applicon of the plts in the first above-named action, &c. Let the sd S. and R. [the receivers] be at libty to execute and send out to S. R. their agent at Rio Grande, in the empire of Brazil, the power of attorney to act for the sd receivers in carrying out the arrangemts for the sale of the ppty in the pleadings mentd to C. T. P., which power of attorney has been settled by the judge as a proper power of attorney for that ppose, and is identified by the signature of the chief clerk in