claim to be entled to prove in the winding up of the sd co for the sum Form 539. ofl., being the balance of the sd sum of 10007. and the interest thereon after deducting the sd sum of 6007. As to valuing security, see infra, p. 480; and Moor v. Anglo-Italian Bank, 10 C. D. 681; Re Western District Bank, 23 S. J. 880; Kit Hill Tunnel, 16 C. Div. 590; Williams v. Hopkins, 18 C. Div. 370. Rejection of secured creditor's proof remits him to his rights as mortgagee; S. C. 31 W. R. 495; 48 L. T. 513. Upon the applicon of R. of, &c., and hearing the solors for the ap- Form 540. plicant and for the above-named co, Let the time within which the ap- Order giving plicant may file affts in reply to the affts filed by the off. liq. of sd co in time to file opposition to the claim of the applicant be extended to 23 July, 1877. Coal Consumers' Association, M. R., 13 July, 1877. A. 1327. Where a creditor has been required to come in and prove his debt, he sometimes applies for further time to file his evidence, and if at the time fixed for adjudicating on the claim the evidence on either side is not complete, the matter is usually adjourned, but in such case the chief clerk generally fixes a time for closing the evidence. However, where this has been done, applications to extend the time may subsequently be made, and will be granted if reasonable grounds are shown. evidence. Upon the applicon of the off. liq., &c., and upon hearing the solors Form 541. for the applicant and for T. H., Let the time for the applicant to file Another. evidence in answer to the evidence in support of the claim of the sd T. H. be extended to the 25th of October next. Limtd., M. R., 3 August, 1878. 1548 B. Orrell Colliery Co., ticulars of claim. Upon the applicon of the above-named co and upon hearing the solors Form 542. for the applicants and for the sd S., Let the sd S. within 7 days after Order for the service of this order deliver to the applicant further and better better parparlars with dates and items of the claim of the sd S. in these matters; And order that the time within which the applicants are to file evidence in opposition to such claim be extended to 21 days after the delivery of the afsd parlars; And that the time within which the sd S. is to file evidence in reply be extended for 7 days after the evidence in opposition has been filed; And order that the costs of this applicon be costs in the matter of the sd claim. Retford Waggon Co., Limtd., M. R. 18 May, 1878. 1020 B. This order was made in a voluntary winding-up, but similar orders are sometimes made in compulsory liquidation. Summons to admit. Sometimes if there appears to be unnecessary delay in admitting a claim, or if a claimant desires to bring matters to a speedy issue, it is considered desirable to take out a summons as follows: Formal parts: see supra, Form 381. On the pt of N. of that the off. liq. of the above-named co Form 543. may be ordered forthwith to admit the applicant as a creditor of the sd Summons to co for [ 1.]. admit. Form 543. Form 544. [Or, for such an amount as shall be ascertained to be the damages sustained by the applicant by reason of the non-delivery, &c., and that all necessary inquiries for the purpose of ascertaining such damages may be directed.] See Ebbw Vale Co.'s claim, 8 Eq. 14. The following order was made on such a summons: Upon the applicon of Messrs. W. H. Smith & Son, &c., Order that Order to admit, the claim of the sd W. H. Smith & Son be allowed at the sum of 250l. together with 107. 10s. 6d., the ascertained costs of proving the same. South Wales Atlantic, &c., Co., M. R., 24 Jan. 1878. B. 171. to admit. Form 545. The applicon of the Bank of L., &c., adjourned into Ct and now Another order coming on, &c., Order that the applicants be allowed as creditors of the sd co for the sd sum of 24697. 11s. 6d., And let the costs of the Bank of L. of this applicon and of the adjournmt thereof into Ct be allowed out of the assets of the sd co, such costs to be taxed, &c., in case the parties differ. General South American Co., Malins, V.-C., 24 Nov. 1877. A. 2222. See 7 C. D. 637. Form 546. Order to vary certificate. Form 547. Another. Form 548. Order giving Certificate of Debts and Claims. Rule 28 provides that the result of the adjudication upon debts and claims is to be stated in a certificate to be made by the chief clerk, and that certificates as to any of such debts and claims may be made from time to time. For form of certificate, see No. 22 in Schedule to Rules. A claimant whose claim is disallowed, can appeal without waiting for the certificate. Re Clagett, 20 C. Div. 134. Until certificate a secured creditor has a locus pœnitentiæ. Williams v. Upon the applicon of W. to vary the chief clerk's certificate, filed, &c., Let the chief clerk's sd certificate be varied by striking out of the 4th column of the 1st schedule thereto the figures 1567. 58. Od., as the amount of the debt of the applicant, and inserting the sum of 2967. 58. 6d. in lieu thereof, and by striking out, &c., And let the sd off. liq. be allowed his costs of this applicon and of the adjournmt thereof into Ct out of the assets of the sd co. Hockley Hall Collieries Co., Malins, V.-C., 8 Dec. 1877, A. 2185. Upon the applicon of the off. liq., &c., Let the debt or sum of 4057. 128. 10d. claimed by the sd L. and allowed by the sd certificate be expunged from the sd certificate and disallowed on the ground that the sd L. has received monies of the co more than equal to the amount of the sd debt, And let the off. liq. be at libty to prove against the estate of the sd L. for the balance of the sd sum of 10007. received by him with interest at 4 p. c. p. a. from 21 April, 1873, after deducting the sd sum of 4057. 12s. 10d., And costs of off. liq. of applicon to be costs in the winding-up. Air Gas, &c., Co., Hall, V.-C., 11 March, 1878. A. 475. Upon the applicon of M., F. & W., persons named in the list of contribs in these matters, and upon reading, &c., Order that the applicants be at libty to give notice of motion in these matters that so much of the Form 548. sd certificate of the chief clerk, dated the 15th and filed the 22nd of contributories Feb., 1877, as certifies the allowance of a debt of C. of solor, may liberty to move be varied by disallowing the sd debt, And that the costs of this applicon certificate. be dealt with on the sd motion. Severn Junction Railway Co., 22 June, 1877. B. 1140. On the pt of A. of to vary that notwithstanding the time limtd for Form 549. making claims has expired he may be at libty to make and establish his claim as a creditor of the sd co for the sum of —1. A creditor or claimant who does not come in at the proper time must explain his conduct, e. g., by showing that he did not see the advertisements, or know of the winding-up; but if he can give some reasonable explanation, the Court will allow him to come in and take a dividend out of the undivided assets. See as to the practice in such cases in administration actions, Dan. Pr. 1096 ; Morgan, 140. In re Mitcalfe, 13 C. Div. 236. Re Kit Hill Tunnel, 16 C. D. 590. The application should be supported by affidavit. Summons for liberty to prove after time expired. after time expired. Upon the applicon of W., that notwithstanding the chief clerk's cer- Form 550. tificate as to debts and claims in these matters has been made, the debt Order giving or claim of the sd W. against the co be now allowed at the sum of liberty to prove 867. 138. 4d. as a debt not carrying interest, and upon hearing the solors for the applicant and for N. the off. liq. of co, and upon reading, &c., Order that notwithstanding the sd chief clerk's certificate the applicant be allowed to stand as a creditor of the sd co for the sum of 801., a debt owing to him by the sd co not carrying interest, but in any further distribution of the assets of the sd co among the creditors and before any paymt is to be made to the applicant in respect of the debt allowed as afsd, regard is to be had to the fact that the applicant is now subject to liability as a contrib of the sd co, And let the applicant pay to the sd N. as such off. liq. the sum of 27. 2s. Od. for his costs of the applicon. Monte Loreto Gold, &c., Co., Hall, V.-C., 8 May, 1877. B. 1049. And see Kit Hill Co., Ex parte Williams, 16 C. D. 590. On the pt of the off. liq. of the above-named co that he may be at Form 551. libty to pay, &c. [as in Forms 552, et seq. infra]. When the chief clerk's certificate has been filed, and the time for applying to vary the same has passed, the official liquidator will, if and when he has sufficient funds in hand, apply for liberty to pay a dividend to the creditors. The application should be supported by the official liquidator's affidavit, which should show that the assets are more than sufficient to pay the proposed dividend, and to provide for the costs of the winding-up. Liberty to pay a dividend is sometimes given where some claims still remain in dispute, but in such case the liquidator must show that the assets retained will be more than sufficient to pay the dividend on the disputed claims as well as the costs of winding-up. It would seem that if a secured creditor does not abandon his security or value it [see infra, p. 480], and come in and prove for the balance, the official liquidator is not bound to make a reserve to meet any claim that may subsequently be made by him. Ex parte Good, In re Lee, 14 C. Div. 82; Kit Hill Tunnel, 16 C. Div. 590. Summons for liberty to pay dividend to creditors. Form 551. Form 552. Order giving liberty to pay dividend. Form 553. Another. Form 554. Another. Separate cheques for sums under 20s. will not be signed, but one cheque will be drawn in favour of the liquidator for the amount; he undertaking to pay. Sometimes leave to pay in full debts under 20s. is given. Upon the applicon of the off. liq. of co, and upon hearing the solors for the applicant, and upon reading an order, &c., the chief clerk's certificate dated, &c., an afft of the off. liq. filed, &c., and the exhibit A. therein referred to, Let the off. liq., out of the assets of the sd co, pay to the several persons named in the 1st column of the schedule hto, being creditors of the sd co named in the sd chief clerk's certificate, filed the of, the several sums of money set opposite their respive names in the 4th column of the sd schedule: such sums being a dividend of 10s. and five-eighths of a penny in the pound upon the amount of the debts due to such respive creditors as mentd in the 3rd column of the sd schedule. [Add schedule showing (1), No. in chief clerk's certificate; (2), name of creditor; (3), amount certified to be due; (4), amount of dividend.] Brighton Clarendon Hotel Co., M. R., 5 Aug. 1878. A. 1570. Upon the applicon of C., the off. liq., &c., Let the applicant, out of the assets of the sd co, pay a dividend of 1s. in the pound to the several creditors named in the 1st and 2nd pts of the 1st schedue to the chief clerk's certificate dated, &c., upon the amounts of their respive debts therein mentd. General Sewage & Manure Co., M. R., 7 May, 1878. A. 931. Upon the applicon of the off. liq., &c., Let the sd off. liq. pay to the several creditors named in the chief clerk's certificate dated 15 Feb. 1876, and in the schedule hto, out of the assets of the sd co, the sums set opposite to their respive names in the sd schedule in the 7th column thereof, being the amount of the final dividend and interest due to them in respect of their sd debts. Form 555. Holywell Level Silver Co., Malins, V.-C., 6 June, 1877. A. 1124. Upon the applicon of A., the off. liq. of the above-named co, and upon reading an afft of the sd A., filed the 20 July, 1881, an order Form 555. dated 30 July, 1881, the chief clerk's certificate dated the 30 July, 1881, And upon hearing the solors for the applicant it is ordered that the sd off. liq. be at libty to declare and pay out of the assets of the co an interim dividend of 4s. in the pound to all the creditors of the co whose debts have been allowed by the sd chief clerk's certificate, dated 30 July. 1881, except Count Mokronoski. Upon the applicon of W., the liq, and upon hearing counsel for the Form 556. liq and for B. & C. the plts in an action of, &c., Order that notwithLiberty to pay standing the claim of the plts in the sd action against the co, the liq be at dividend making reserve libty to declare and pay a first dividend not exceeding Ss. in the pound for disputed upon the debts and claims against the co which have been allowed by claims. him at the date of this order, amounting to 67,9217. 16s. 9d.: Provided that the applicant do reserve out of the assets of the co a sum sufficient for the paymt of a like dividend upon the sum of 37,7147. referred to in his sd afft and upon the sum of -7. in respect of the claim of the sd B., Liq to be at libty to retain his costs out of assets; Costs of B. and plts to be reserved until further order. Hopkins, Gilkes, & Co., M. R., 10 Dec., 1879. A. 2415. 1. I have been requested by Messrs. D. to pay them the sum of --. Form 557. in respect of services rendered by them to the sd co whilst in liquidon, Affidavit the parlars of which are set forth in the paper writing now produced by official liquidator. and shown to me and marked A. 2. I have examined the above claim, and to the best of my judgmt it is just and ought to be pd in full out of the assets of the sd co. In the course of a winding-up, debts are from time to time incurred which ought to be paid in full, e. g., valuations, repairs, rent, materials supplied, costs, &c., and where no general order has been made giving the requisite authority, the liquidator must from time to time apply for liberty to pay such debts. In many cases no order is drawn up on such applications, but the summons is indorsed with a note that the liquidator may pay, and is to be allowed the amount in his next account. As to payment in full of creditors entitled to levy execution or distrain, see infra, Forms 608, 610. Sometimes, instead of directing payment, such persons are permitted to issue execution or distrain. Ibid. Liberty to pay Upon the applicon of the off. liq., &c., Let the sd off. liq. out of the Form 558. assets of the sd co pay to the sd V. the sum of 1,0291. 48. 3d., the amount of rent and royalties due to him on the 31st March, 1877, in rent. respect of ppty leased to the sd co situate at, &c. Darlaston Steel & Iron Co., M. R., 16 June, 1877. A. 1127. For order giving official liquidators liberty to pay the salaries of the clerks employed at the different branches of the company for the purposes of the winding-up, see West of England, &c., Bank, Fry, J., 7 July, 1879. B. 1421; and see supra, p. 469. Form 559. Upon the applicon of F. the liq of co by summons dated 30 July, Liberty to pay rates. |