Form 450. Order to pay crown debt. Form 451. Declaration of rights of mortgage debenture holders, and order to pay. Payment of Preferential Debts. Upon the application of T. and C., the prov. off. liq. of the abovenamed Bank, and upon hearing the solicitors for the applicants and for the said 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 said 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 57. notes of the West of England, &c. Bank held by H. M's. P. M. Gen. when the said Bank stopped payment. 2007. Os. Od., Being for three bills of the said Bank for 2107., 507., and 301. respectively, held by H. M's. P. M. Gen. when the said Bank stopped payment. 697. 158. Od. other monies of Her Majesty. And order that the costs of the said prov. liqs. and of the said Bank of this application and incident thereto be costs in the winding-up. West of England, &c., Bank, Malins, V.-C., 20 Dec. 1878, B. 2118. 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 451 et seq. Notice to Creditor to attend and receive debt. See Form 23 in Schedule 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 475 et seq. Transfer of actions, see Form 493 et seq. Liberty to creditors to proceed against company, Form 496 et seq. Liberty to attend, Form 459 et seq. 66 Secured Creditors. Upon the application of A. B., &c., &c., being together the holders of all the mortgage debentures of and issued by the above-named company, for the amounts set forth in the schedule hereto opposite the respective names of the said applicants, and all hereinafter referred to as the debenture holders, which, upon hearing the solicitors for the applicants, and for the official liquidator of the above-named company, and for, &c., was adjourned to be heard in Court, coming on the 26th day of February, 1876, and this day to be heard accordingly, and upon hearing, &c. This Court being of opinion that the property, book-debts, credits, Form 451. assets, monies, and other effects, of or to which the above-named company was possessed or entitled at the commencement of the winding-up of the said company, 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 respective amounts due to the applicants for principal and interest in respect of their mortgage debentures, rateably, in proportion to the said respective amounts of such mortgage debentures, in priority to the general or unsecured creditors of the company. It is ordered that the liquidators of the above-named company do, out of the assets of the said company, pay and satisfy the said principal monies due to the said debenture holders, with interest thereon, at the rate of 18 per cent. per annum, down to the day of payment; and do also pay to the said debenture holders their costs of and occasioned by this application, to be taxed by the taxing master, as between solicitor and client, in case the parties differ, including the costs of the summons on the 18th day of June, 1875, taken out by the said liquidators, and all other the costs of the said debenture holders (if any), properly incurred as mortgagees, all such payments to be made in priority to the payment of the costs hereinafter mentioned and of the costs of the liquidators of this application and also previously to any payment to the general and unsecured creditors of the company. And it is ordered that the liquidators do, out of the assets of the company, retain their own costs, and pay the said, &c., their costs of this application and of the said summons, such costs to be taxed by the taxing masters, as between solicitor and client, in case the parties differ." In re General South American Co., Malins, V.-C., 14 March, 1876. A. 459. See 2 C. Div. 337. As to actions by debenture holders, see further supra, Form 238 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 insolvent, s. 10 of the Judicature Act, 1875, applies, 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 428] 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 Rules, 1870, 99, 100, 101. 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, 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. 16 of the Bankruptcy Act, 1870, and Buckley, 294. For affidavit of proof by secured creditor of insolvent company, see Form 428. 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 and 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; In re Hamilton's Windsor Ironworks Co., 27 W. R. 827; see Forms 496 et seq. In other cases the mortgagee sells, with or without the concurrence of the In such cases the secured creditor is entitled to be paid out of the proceeds his Not uncommonly an order is made on the application of the liquidator as in Where a creditor has obtained security by execution levied before the windingup, 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 501. See further as to secured creditors, Buckley, 294 et seq. Form 452 Declaration on rights of debenture holders by Court of Appeal. Upon motion by way of appeal, &c., that the order dated the 24th of June, 1878, made by the V.-C., Sir C. Hall, might be varied, &c., Declare that according to the true construction of the mortgage debentures or obligations issued by the said co. respectively dated the 24th of June, 1868, and numbered 202, &c., amounting together to the sum of 54007., a charge upon the estate property and effects of the said company comprised in the said mortgage debentures or obligations was thereby created; but without prejudice to any question whether land in any foreign country is affected by the said mortgage debentures or obligations, and also without prejudice to any question as to what estate, property and effects of the said company are comprised in the said mortgage debentures or obligations, and without prejudice to any question of priority as between the holders of such mortgage debentures or obliga- Form 452. tions and other mortgagees (if any) of the said co.: And this Court doth accordingly order that the said order dated the 24th of June, 1878, whereby, &c., be discharged: And this Court doth reserve the question. of the costs of the said order and of this application for the consideration of the said Judge. Florence Land and Public Works Co. Ld., Court of Appeal, 18 Dec. 1878. A. 2300. See the report in 10 C. Div. 530. favour of Upon the application of B. [and others]: Declare that the applicants Form 453. 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 entitled 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 appointment of the said K. as prov. off. liq.) subject to any charges on specific parts thereof created previously to that date and then subsisting: And declare that such real and personal estate does not include the 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 said co. and what is due to them for principal and interest. 2. An inquiry what property is comprised in the charge having regard to the above declarations: Applicants' costs of the application to be taxed and paid out of the property comprised in said charge: Liq. to be at liberty to retain his costs of the application 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 said charge against the general estate of co. Liberty for applicants to attend proceedings at their own expense. Colonial Trusts Corporation, M. R., 13 Dec. 1879. A. 2576. W. N. 188, p. 3. See reference to the above order in Hodson v. Tea Company, 14 C. D. 859. For order with consent of P., the mortgagee, that certain leaseholds and plant be sold by auction by the off. liq. 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 off. liq.; 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 off. liq. the costs of the attempt, and add amount to his security, costs of 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. Upon the application of W. the liq. of co., &c., Let an inquiry be Form 454. made as to what securities have from time to time been given by the Inquiry as to said company, and when and to whom and for what amounts and how what securities given. Form 454. much remained due upon each of the said securities for principal and interest up to the 17th of September, 1878, and any party is to be at liberty 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 respective rights of the secured creditors so to be found and certified as aforesaid. Hamilton's Windsor Iron Work, Co. Ld., Malins, V.-C., 21 Dec. 1878. A. 2340. See also, 27 W. R. 827. Form 455. Liberty to pay off mortgage of sale. Upon the application of the liq., and upon hearing the solicitors for the applicant and for F. M. the creditors' representative appointed by order dated, &c., and for W. & S. the mortgagees of the company's out of proceeds stock, and upon reading, &c., Let the liquidator be at liberty to pay to the said S. out of the proceeds of the property in mortgage to him the sum of 43261. 8s., due to him for principal, interest, and commission, upon mortgage dated, &c., given by the said co. to the said A., And let the liquidator pay to the said S. the sum of 487. 14s. at which the costs of the said S. have been agreed, such costs including the costs of this application. Japanese Curtains' Co., Malins, V.-C. 20 May, 1878. Form 456. Order for payment of mortgagees. Upon the application of D. the off. liq., &c., Let the said D. out of 3,3157. and 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 1,8357., being the amount due to them for principal, and secured by a certain indre., &c., together with 1267. 2s. 4d., the amount of interest thereon at 5 per cent. per annum to the 15th of May, 1878, and also the sum of 107. 19s. 3d. for goods supplied by them to the said co. and 17. 16s. for insurance of the premises belonging to the said co., together with the sum of 277. 5s. 10d. the ascertained costs of the said Messrs. W., making together the sum of 2,0017. 4s. : And let [similar order as to two subsequent incumbrancers.] And let the said liq. thereout also pay to Messrs. C. F. & C. the former solicitors of the said company the sum of 1107. in full satisfaction of their costs, charges and expenses against the said company amounting to the sum of 1891. 68. 8d., &c., And let the said Messrs. & forthwith cause satisfaction to be entered upon the Middlesex Register of the amount of their respective mortgages. Hammersmith Town Hall Co., M. R., 7 May, 1878. A. 869. Form 457. Upon the application of S., J. and E., as trustees under an indenture Liberty to give dated, &c., for and on behalf of the debenture holders of the said co., possession of and upon hearing the solicitors for the applicants and for F. W., the liq. of co., &c., Let the said liq. be at liberty to give to the applicants possession of the leasehold lands and premises known as, &c., whereon the said co. carried on its business, together with all the plant, property to trustees for debenture bolders. |