Form 559. 1877, and upon hearing the solors for the applicant and for the overseers of Darlington, and upon reading an order in these matters dated 7 July, 1877, Let the sd liq be at libty out of the assets of the sd co to pay to the overseers of Darlington the sum of 2127. 78. 24d., being the amount of the poor-rate made and allowed on the 1st of May, 1877, in respect of the co's premes (retained in beneficial occupation of the liq), and that the sd liq be allowed the same in his accounts of receipts and paymts, And let the sd liq pay the sum of 27. 28. to L. the solors of the sd overscers of D., being the amount of their ascertained costs of this applicon. South Durham Iron Co, Hall, V.-C., 3 Aug., 1877. B. 1476. Form 560. Liberty to pay costs, &c. See Watson, Kipling & Co., 23 C. D. 500. No apportionment. Wearmouth Co., 19 C. D. 640. As to demand of poor-rate, see 31 & 32 Vict. c., 122, s. 40. Upon the applicon of G., the off. liq.. &c., Let the sd G. as such off. liq. be at libty to pay out of the assets of sd co to the several persons named in the 1st column of the schedule to this order the several sums set opposite to their respive names in the third column of the same schedule. Form 561. Order to pay crown debt. Governor and Co of Copper Miners, Hall, V.-C., 20 Dec., 1877, A. 2295. See supra, Note to Form 411. In practice an order is rarely necessary for payment of costs alone: an appointment before the Chief Clerk is obtained: the taxing master's certificate is produced, and directions are given for the preparation of the cheque. Payment of Preferential Debts. Upon the applicon of T. & C., the prov. off. liq. of the above-named Bank, and upon hearing the solors for the applicants and for the sd Bank and for Her Majesty's Postmaster-General, and upon reading, &c.. Let the applicants as such prov. liqs. forthwith out of any assets in their hands pay to Her Majesty the Queen or her duly authorised agents the sum of 3697. 15s. Od.: such sum having been in the hands or control of the sd Bank at the date of its suspension and in respect of which writs of immediate extent have been issued, and which sum is made up as follows:: 1007. Os. Od., Being 20 51. notes of the West of England, &c. Bank held by H. M.'s P. M. Gen. when the sd Bank stopped paymt. 2007. Os. Od., Being for three bills of the sd Bank for 1207., 50l., and Form 561. 307. respively, held by H. M's. P. M. Gen. when the sd Bank stopped paymt. 697. 158. Od. other monies of Her Majesty. And order that the costs of the sd prov. liqs. and of the sd thereto be costs in the winding-up. V.-C., 20 Dec., 1878, B. 2118. Bank of this applicon and incident For order directing payment to Her Majesty of County Court monies deposited in same bank, see Ibid. The Crown not being expressly mentioned in the Act of 1862, 'is entitled to be paid out of the assets in priority to all other creditors. Henley & Co., 9 C. Div. 469; 26 W. R. 885; In re Bonham, 10 C. Div. 595. For orders directing preferential payment to be made to holders of mortgage debentures, and other secured creditors, see infra, Form 562 et seq. As to servants and others, see supra, p. 469. Notice to Creditor to attend and receive debt. See Form 23 in Schedue to Rules. The form can readily be altered so as to suit the case of part payment. Miscellaneous. Staying actions by creditors, see infra, Form 585 et seq. Transfer of actions, see Form 600 et seq. Liberty to creditors to proceed against company, Form 603 et seq. Secured Creditors. mortgage order to pay. "Upon the applicon of A. B., &c., &c., being together the holders of Form 562. all the mtge debentures of and issued by the above-named co, for the Declaration amounts set forth in the schedule hto opposite the respive names of the of rights of sd applicants, and all hereinafter referred to as the debenture holders, debenture which, upon hearing the solors for the applicants, and for the off. liq. of holders, and the above-named co, and for, &c., was adjourned to be heard in Ct, coming on the 26th day of February, 1876, and this day to be heard accordingly, and upon hearing, &c., This Ct being of opinion that the ppty, book-debts, credits, assets, monies, and other effects, of or to which the above-named co was possessed or entled at the commencemt of the winding-up of the sd co, are subject to the debenture securities and charges thereby created in favour of the applicants, and ought to be applied in the first instance to satisfy or provide for, pro tanto, the respive amounts due to the applicants for principal and interest in respect of their mtge debentures, rateably, in proportion to the sd respive amounts of such mtge debentures, in priority to the general or unsecured creditors of the co. Order the liqs of co, out of the assets of the sd co, to pay and satisfy the sd principal monies due to the sd debenture holders, with interest thereon at the rate of 18 p. c. p. a., down to the day of paymt; and also to pay to the sd debenture holders their costs of and occasioned by this applicon, to be taxed by the taxing master, as between solor and client, in case the parties differ, including Form 562. the costs of the summons on 18 day of June, 1875, taken out by the sd liqs, and all other the costs of the sd debenture holders (if any), properly incurred as mtgees, all such paymts to be made in priority to the paymt of the costs hereinafter mentd and of the costs of the liqs of this applicon and also previously to any paymt to the general and unsecured creditors of the co. And order the liqs out of the assets of the co to retain their own costs, and pay the sd, &c., their costs of this applicon and of the sd summons, such costs to be taxed hy the taxing masters, as between solor and client, in case the parties differ." [Schedule.] In re General South American Co., Malins, V.-C., 14 March, 1876. A. 459. See 2 C. Div. 337. As to the validity of a general charge, see supra, p. 258. As to actions by debenture holders, see further supra, Form 349 et seq. In the case of a solvent company a secured creditor may prove for the full amount of his debt, retaining his security till payment. And in the case of an insolvent company, where the winding-up commenced before the passing of the Judicature Act, viz., 1 Nov., 1875, the rule in Kellock's case, 3 Ch. 769, applies, and accordingly a secured creditor may prove for the amount due when his claim is sent in, without regard to securities which have been realised by him between the sending in of his claim and its adjudication. But when the winding-up commenced after 1 Nov., 1875, and the company is insolvent, s. 10 of the Judicature Act, 1875, renders the bankruptcy rules applicable, and accordingly a secured creditor may prove for the whole amount due to him provided he gives up his security, or he may set a value on his security [see Form 539], and prove for the balance: in the latter case the liquidator will have the option, at any time before realisation, of taking over the security at such value for the benefit of the general creditors; and if the creditor subsequently to his proof realises the security, and receives more than the estimated value, he will be bound to pay the surplus to the liquidator. See Bankruptcy Act, 1883, and Rules 9 et seq. Where a security is so valued, the liquidator may redeem it at the assessed value, or if dissatisfied with value, may insist on sale. And the creditor may require a liquidator to elect whether he will redeem; and after six months' default the equity of redemption will vest in the creditor. See further the above mentioned rules. Instead of proving as above, a secured creditor, whether of a solvent or insolvent company, (a) may realise his security if he has the necessary power and prove for the balance (Re Kit Hill Co., 16 C. D. 590), or (b) may, in some cases, obtain leave in the winding-up to sue the company for the enforcement of his security, e. g., by foreclosure, and proceed accordingly, or (c) may have his security realised in the winding-up, and prove for the balance due. The expression, a secured creditor, in s. 10 of the Judicature Act, 1875, means a creditor holding any mortgage charge or lien on the company's property or any part thereof as security for a debt due to him, and includes not only creditors secured by contract, but also creditors who have obtained a security by execution levied before the commencement of the winding-up or otherwise. See s. 168 of the Bankruptcy Act, 1883. The charge must arise before the commencement of the winding up. See s. 163 of the Act of 1862. Ex parte Williams, 7 Ch. 314 (fi. fa., seizure essential); Re Stanhope Silkstone Co., 11 C. Div. 160 (garnishee order nisi, service essential); Haly v. Barry, 3 Ch. 452 (charging order on shares, service essential). As to the limited operation of s. 10 of the Judicature Act, 1875, see Withernsea Co., 16 C. Div. 337 (s. 45 of Bankruptcy Act, 1883, not applicable); Crumlin Viaduct, 11 C. D. 755, order and disposition not applicable. But see Mersey Steel v. Naylor, 9 Q. B. Div. 618 (mutual credit clause applicable), and Re Hopkins, 18 C. Div. 380. See also Re Hopkins, 31 W. R. 498; 48 L. T. 513; In re Maggi, 20 C. D. 545. For affidavit of proof by secured creditor of insolvent company, see p. 472. In the case of a mortgagee or mortgage debenture holder of a company, it is very common to apply to the Court for liberty to bring or proceed with an action to foreclose or realise the security, and a mortgagee has a primâ facie right to such an order. Lloyd v. Lloyd & Co., 6 C. D. 339; Jones v. Swansea Building Society, 29 W. R. 382; In re Hamilton's Windsor Ironworks Co., 27 W. R. 827; see Forms 603 et seq. In other cases the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. And very commonly a secured creditor applies in the winding-up for a declaration of his rights, and a direction to the liquidators to realise the security, and pay him. See Forms 563 et seq. In such cases the secured creditor is entitled to be paid out of the proceeds his principal, interest, and costs, subject only to the costs of the realisation. In re Marine Mansions Co., 4 Eq. 601. See also Oriental Hotels Co., 12 Eq. 126; In re Regent's Canal Co., 3 C. Div. 411. Not uncommonly an order for sale is made on the application of the liquidator, and the mortgagee concurs and obtains payment out of the proceeds. Where a creditor has obtained security by execution levied before the winding-up, and a winding-up commences before sale, it is not uncommon for the creditor to apply for an order for sale by the liquidator as in Form 603. Form 562. favour of Upon the applicon of B. [and others]: Declare that the applicants Form 563. and all other holders of debentures in the same form as those held by Declaration of the applicants of the co are by virtue of such debentures entled pari rights in passu to a charge by way of a floating security [supra, p. 229] on all debenture the real and personal estate of the co as the same existed on 9 Oct., holders. Inquiries. 1878 (the date of the appointmt of the sd K. prov. off. liq.) subject to any charges on specific pts thereof created previously to that date and then subsisting And declare that such real and personal estate does not include then uncalled capital of the co: And let the following inquiries be made : 1. An inquiry who are the holders of the debentures of the sd co and what is due to them for principal and interest. 2. An inquiry what ppty is comprised in the charge having regard to the above declons: Applicants' costs of the applicon to be taxed and pd out of the ppty comprised in sd charge: Liq to be at libty to retain his costs of the applicon and consequent thereon out of the general estate of the co in his hands: And the order to be without prejudice to the applicants' right to prove for the balance of the amount due to them by virtue of the sd charge against the general estate of co. Libty for applicants to attend proceedings at their own expense. Colonial Trusts Corporation, M. R., 13 Dec., 1879. A. 2576. 15 C. D. 465. See reference to the above order in Hodson v Tea Company, 14 C. D. 859, and supra, p. 248. For order with consent of P., the mortgagee, that certain leaseholds and plant be sold by auction by the official liquidator out of Court, proceeds to be applied in payment of expenses and next in payment to P. of 5,000l. and interest and costs as mortgagee, residue to be paid into Bank to account of official liquidator; if proceeds insufficient to pay P. expenses first to be paid, and balance to P., liberty for P. to bid at the sale, order to be without prejudice to rights of P. if sale not effected, and if sale not effected, P. to pay to official liquidator the costs of the attempt, and add amount to his security, costs of I I Form 563. application reserved, costs and expenses before directed to be paid to be taxed in case the parties differ, see Crumlin Viaduct Co., M. R., 1 Aug., 1878. A. 1601. Form 564. Upon the applicon of W. the liq. of co, &c., Let an inquiry be made Inquiry as to as to what securities have from time to time been given by the sd co, and what securities when and to whom and for what amounts and how much remained due given. upon each of the sd securities for principal and interest up to 17 Sept., 1878, and any party is to be at libty to apply in chambers as he may be advised, as soon as the chief clerk shall have made his certificate, on the question of priorities and the respive rights of the secured creditors to be found and certified as afsd. Hamilton's Windsor Ironworks Co., Limtd., Malins, V.-C., 21 Dec., 1878. A. 2340. See also, 27 W. R. 827. Form 565. Liberty to pay off mortgage out of proceeds of sale. Form 566. ment of mortgagees. Upon the applicon of the liq, and upon hearing the solors for the applicant and for F. M. the creditors' representative appointed by order dated, &c., and for W. and S. the mtgees of the co's stock, and upon reading, &c., Let the liq be at libty to pay to the sd S. out of the proceeds of the ppty in mtge to him the sum of 43267. 8s., due to him for principal, interest, and commission, upon mtge dated, &c., given by the sd co to the sd A., And let the liq pay to the sd S. the sum of 487. 14s. at which the costs of the sd S. have been agreed, such costs including the costs of this applicon. Japanese Curtains Co., Malins, V.-C., 20 May, 1878. Upon the applicon of D. the off. liq., &c., Let the sd D. out of 3315/ Order for payand other sums of money which may be payable to him in respect of the sale of the - Tavern, pay to Messrs. W. & Co. the sum of 18357, being the amount due to them for principal, and secured by a certain indre, &c., together with 1267. 28. 4d., the amount of interest thereon at 5 p. c. p. a. to 15 May, 1878, and also the sum of 107. 19s. 3d. for goods supplied by them to the sd co and 17. 16s. for insurance of the premes belonging to the sd co, together with the sum of 277. 5s. 10d. the ascertained costs of the sd Messrs. W., making together the sum of 20017. 48.: And let [similar order as to two subsequent incumbrancers.] And let the sd liq thereout also pay to Messrs. C. F. & C. the former solors of the sd co the sum of 1107. in full satisfon of their costs, charges and expenses against the sd co amounting to the sum of 1897. Cs. 8d., &c., And let the sd Messrs. forthwith cause satisfon to be entered upon the Middlesex Register of the amount of their respive mtges. Hammersmith Town Hall Co., M. R., 7 May, 1878. A. 869. and Form 567. Upon the applicon of S., J., and E., as trustees under an indre Liberty to give dated, &c., for and on behalf of the debenture holders of the sd co, and possession of upon hearing the solors for the applicants and for F. W., the liq of co, &c., Let the said liq be at libty to give to the applicants possession of the leasehold lands and premes known as, &c., whereon the sd co carried on its business, together with all the plant, machinery, tools, property to trustees for debenture holders. |