Form 232. Order for plaintiff company to give security. Upon motion by way of appeal, &c., order that the plts., the co., do procure some sufficient person on their behalf to give security according to the course of the Court by bond [to the Clerk of Records and Writs] in the penalty of 1507., conditioned to answer costs in case any costs shall be awarded to be paid by the plts., and in the meantime the plts. are not as against the defts. to take any further proceedings in this action. And plts. to pay defts. costs of and occasioned by this motion, to be taxed, &c. And costs of application in Court below to be costs in the action. And deft. co. to be at liberty to apply hereafter for further security, as deft. co. may be advised. Northampton Coal, &c., Co. v. Midland Wagon Co., Ct. of Appeal, 16 Jan., 1878, B. 78, See the report, 7 C. Div. 500. In the above case the plt. co. was in voluntary liquidation, and Jessel, M. R., in the Court of Appeal, was of opinion that the fact afforded primâ facie evidence that the assets would be insufficient. According to the Rules of the Supreme Court, April, 1880, Order LV., r. 41, a bond given as security for costs is, unless otherwise directed, to be given to the party or persons requiring the same. Form 233. Another. Fund to be paid into a bank. Upon the application of the deft., &c. By consent, order that the plts. do, on or before 24 Mar., 1879, pay into the Union Bank of London, Chancery Lane Branch, in the joint names of K. and B. [solicitors of plt. and deft.] the sum of 2007., as security for the costs of the deft. in this action in case any should be awarded to him. And order that in default of the plts. making such payment within the time aforesaid this action do stand dismissed out of this Court without further order, with costs to be taxed by the taxing-master and paid by the plts. to the deft. S. And costs of application to be costs in action. South Durham Co. v. Shaw, Hall, V.-C., 1 Mar., 1879, B. 374. Form 234. Declaration. IN ACTIONS RELATING TO DEBENTURES. Upon motion for judgment, &c., and upon hearing counsel for the defendants, and upon reading the plaintiff's statement of claim and a deed of covenant, dated, &c. Declare that the plaintiff and the other holders of mortgage debentures of the above named company issued under and in pursuance of the said deed, are entitled to a charge on all the real and personal property of the company, for securing the repayment of the principal monies and interest in the said mortgage debentures mentioned. And let the following account be taken, namely, an account of what is due to the plaintiff and the other holders of mortgage debentures of the company on the security of the said debentures and the said deed. And let the real and personal property comprised in the said deed and the business of the company be sold as a going concern with the approbation of the judge. And let the money to arise by such sale be paid into bank to the credit of this action of Perry, &c., Form 234. 1876, P. 139. And receiver and injunction continued, and [further consideration adjourned].” Perry [on behalf, &c.] v. Clutton Coal Co., In this case it will be observed that the debentures affected the whole property. See supra, p. 229. 66 Upon motion, &c., for the plaintiffs, and upon hearing counsel for Form 235. the defendants, and upon reading the plaintiffs' statement of claim, and Order for the statement of defence, and an order dated the 29th August, 1876 accounts and inquiries. [for receiver and manager by consent]. Let the following accounts and inquiries be taken and made, that is to say: 1. An account of what is due for principal and interest to the plaintiffs, and the other holders of debentures issued by the defendant company, distinguishing the holders of the A and B debentures in the pleadings referred to. 2. An inquiry of what the property comprised in and charged by the A and B debentures, respectively, consists, and in whom the same is vested. 3. An inquiry what steps ought to be taken for getting in such parts (if any) of the said property as may be outstanding. 4. An inquiry in what way the property comprised in or charged by 5. An inquiry whether any and what contracts have been entered "And further hearing adjourned without requiring the action to be brought on for trial. "And any of the parties, including the holders of any of the said debentures issued by the defendant company, are to be at liberty to apply to the Court or to the judge as they may be advised." Dawson v. Owen, Malins, V.-C., 11 Nov., 1876, A. 1778. Upon, &c., it is ordered that the following accounts and inquiries be Form 236. taken and made, that is to say: Accounts and 1. An inquiry what debentures or mortgage securities have been inquiries. issued or created by the said association or the directors thereof since the registration of the said association. 2. An inquiry which of the debentures are still unpaid or subsisting, and what persons are the holders of the same respectively. Form 236. 3. An inquiry what property, monies, or assets of the association are included in the said several debentures, and the charge or security thereby created. 4. An account of the principal and interest monies secured by or due under or in respect of the said debentures respectively, and to whom the same respectively are due. And it is ordered that the proceedings in the action of Huntingdon v. The Coal Consumers Assoc., Limited, 1876, H. 114, be stayed until further order, with liberty to any party to apply on giving notice to the other parties appearing upon the present application." Malins, 4 Aug., 1876, A. 1928. This order was made in the action and the winding up. For orders in winding up, declaring rights of holders of mortgage debentures, and directing inquiries, &c., see Forms 451 et seq. Form 237. Upon motion for judgment, &c., by counsel for the plt. in firstmentioned action, and upon hearing counsel for the plts. and for the defts. in both the actions, and for the respective committees of the holders of mortgage debentures of the 1st and 2nd series issued by co., and for S. S. and P. holders of debentures of the 1st series, and upon reading the pleadings in these actions, and an order dated 2 Mar., 1877, Declare that the plaintiff and the other holders of the mortgage debentures of the 1st series issued by the defts. co., are entitled to a first charge upon the undertaking monies and property of the deft. co. : and declare that the holders of the mortgage debentures of the 2nd series issued by the deft. co. are entitled to a second charge upon the undertaking monies and property of the defendant co. And order and adjudge that an account be taken of what is due from the deft. co. to the holders of the said debentures of the 1st and 2nd series respectively, for principal and interest on their respective debentures. And let the undertaking property and effects of the deft. co. be sold, with the approbation of the judge, and let the proceeds of sale be paid into court to the credit of Barry, &c. And receivers and managers be continued until further order; and order that Messrs. & and any other members of the committee of the debenture holders of the 1st series, and Messrs. & or any other members of the committee of the debenture holders of the 2nd series, be at liberty to attend the proceedings in these actions (their costs as between solicitor and client as from the dates of their respective appointments being costs in these actions), and that the said S. S. and P. debenture holders of the 1st series be at liberty to attend the proceedings at their own expense: and order that the first above-mentioned action be dismissed as against the defendant Bower with costs, to be taxed as hereinafter mentioned; and order that the costs of the respective plaintiffs and of the above-mentioned respec tive committees of debenture holders, and of the said deft. Bower, up Form 237. to and including judgment, be taxed by the taxing-master as between Foreign prosolicitor and client, and the taxing-master is to include in such taxation perty sale. the costs of the said S. S. and P. of the motion upon which the order of 20 Ap., 1877, was made: and declare that all the aforesaid costs are payable out of the proceeds of the aforesaid sale; but no part of the difference between party and party costs and solicitor and client costs is to be paid out of the surplus monies (if any) which would otherwise be payable to the deft. co. out of the proceeds of such sale. Adjourn further con. Liberty to apply. Barry [on behalf, &c.] v. Sao Pedro Brazil Gas Co., and Upward, &c., v. Same Co., M. R., 20 Ap., 1877, A. 855. In this case the property consisted almost entirely of land, with gasworks thereon, situate in South America. There was no trust deed; the debentures were to bearer, and purported to charge the undertaking, monies, and property of the company. See supra, pp. 227, 230. See also Forms 241 et seq., and 267, infra. For order of M. R., declaring that debentures formed a first charge on the whole of the real and personal property and undertaking of the co., except uncalled capital, directing inquiries, appointing receiver, and ordering sale, see Bower v. Foreign and Colonial Gas Co., 13 Nov., 1877, A. 2064. Case reported in W. N. 1877, 222. This action coming on for trial, &c. Declare that the plaintiff and Form 238. the other holders of mortgage debentures of the deft. co. are entitled to Declaration. a first charge on all the freehold and leasehold hereditaments and Accounts. Subsequent premises comprised in the indenture of mortgage dated the 7th of May, incumbrances. 1874, in the statement of claim mentioned for securing the repayment Trust deed. of the principal monies and interest in the said mortgage debentures mentioned and let the following accounts and inquiries be taken and made (that is to say): 1. An inquiry who are now registered in the books of the deft. co. as the holders of the said mortgage debentures respectively, and how many such debentures every such person holds. 2. An account of what is due and to whom for principal and interest in respect of the said indenture of mortgage dated the 7th of May, 1874, and for costs of this action, to be taxed, &c. 3. An account of what is due to the defts. R. T. and Co., for principal and interest in respect of the indenture of mortgage dated 22 June, 1876, as in the statement of claim mentioned, and for the costs of this action, to be taxed, &c. 4. [Similar inquiry as to another incumbrance.] 5. An inquiry whether all, and if not all then how much, of the purchase money paid or to be paid in respect of the property ordered to be sold by the said order of the 29th day of Nov., 1877, was paid or is to be paid in respect of the said property comprised in the said indenture of mortgage dated the 7th of May, 1874; and receivers and managers continued. Adj. further conson. Lib. to apply. Davis on behalf of himself and all others the holders of mortgage debentures of Form 238. the Brynmawr Coal, &c., Co. v. Ashwin and others, Hall, V.-C., 22 February, 1878, A. 408. Form 239. Trust deed. Form 240. Advertisement for claims. Upon motion for judgment, &c. Declare that the trusts of the indenture of 2 March, 1874, in the statement of claim mentioned, ought to be performed and carried into execution, and order and adjudge the same accordingly: and let, &c. : 1. An account of the trust estate and effects comprised in the said indenture, come to the hands of the defts. F. and R., or either of them, or any other person or persons by the order, or for the use of the said defts. or either of them. 2. An account of what is due to the plts. and all other holders of debentures of defendant co. dated, &c., for principal and interest in respect of their said debentures, distinguishing such of the said debentures as are overdue from such as are outstanding. 3. An account of all monies supplied by the plts. in pursuance of their undertaking contained in the said order of the 25th of May, 1876. Receivers continued. Any of the parties to be at liberty to apply in Chambers as to the sale of the property comprised in the indenture. Adjourn, &c. Liberty to apply. Rodewald and others [on behalf] v. Wayne's, &c., Co., Limited, and others, Malins, V.-C., 23 Mar., 1877, B. 591. For subsequent order in the above action, and in winding up for sale of the assets, subject to the debentures, for 45,0007., with provisions as to distribution of the purchase money, costs, &c., and receivers to be paid and discharged "without passing their accounts," see B. 412, 8 March, 1878. The advertisement for claims in the above action was as follows: PURSUANT to a judgment of the Chancery Division of the High Court of Justice made in an action of R. and others against Wayne's, &c., Company, Limited, and others, 1876, R. 91, the HOLDERS of DEBENTURES in WAYNE'S, &C., COMPANY, LIMITED, dated the 2nd of March, 1874, are, on or before the 11th day of June, 1877, to send by post prepaid to U. of, in the city of London, the solicitor of R. and R., the trustees of a certain indenture dated the 2nd March, 1874, their christian and surnames, addresses, and descriptions, and the full particulars of the debentures held by them and the sums claimed in respect thereof, OR in default thereof they will be peremptorily excluded from the benefit of the said judgment. 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. Dated this 2nd day of May, 1877. EDWARD SHEARME, Chief Clerk. 20, Austin Friars, London. |