Francis Beaufort Palmer.

Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

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together with any bills of exchange or other securities held by you ;
and if you do not attend personally you must fiU up and sign the sub-
joined forms of Receipt and Authority, when a cheque payable to your
order will be delivered to the bearer.

To . (Signed) G. H. [Liqr.]



Receipt.



Received of



the sum of



pounds



189—.
shillings and —



pence, being the amount payable to in respect of the dividend

of ■ in the £ on claim against this estate.

£ . Signature.



Sir,



Axithority .



Please deliver to



(Insert the name of the person who is to receive the cheque, or the
words ' ' me by post, ' ' if you wish the cheque sent to you in that
way.)

the cheque for the dividend payable to in this matter.

To . Creditor's Signature.

As to this notice, see R. 122 of 1890, supra.

As to filing proofs before payment of a dividend, see Rr. 116 — 118 of 1890, supra.



Order for
payment of
crerlitor's
dividends to
otlier
persons.



Form 440. Upon the applicon of the A. Coy, Limtd, and of X., of , and

upon hearing the solors for the applicants and for the C. L., and for
W., the off liqr of the above-named corporation, and upon reading the
orders dated, &c., It is ordered that, notwithstanding the sd orders
dated &c., all dividends now payable and to become payable to the sd
C. L., whose claim against the estate of the sd corporation has been

allowed by the Chief Clerk's sd certificates at the sum of 1., be pd

to the ajiplicants, the sd A. Coy, Limtd, instead of to the sd C. L. ;
And it is ordered that the applicants do pay to the sd off liqr the sum
of 11. 2s., and to the sd C. L. the sum of 21. 2s., for their agreed costs
occasioned by and incident to this applicon. Oriental Rank Corpora-
tion, Chitty, J., 10th May, 1886.

A creditor's claim against a company is a chose in action, and is assignable in
equity. Milan Tramivai/s Co., 25 C. D. 571. And notice to the liquidator perfects
tlio assignment as against subsequent assignees. Wra^ge's case, 5 Eq. 284.



CREDITORS. 393

Upon the applicon of N., &c., order that the off recr and llqr do pay Form 440a.
to the applicant, the sd N., out of the assets of the above-named coy, Order to pay

the sum of 1., heing part of the dividend of 7.9. 6r/. in the £ declared dividend to

on the amount of the debt of tlie sd C. in respect of the amount due to ^ ^"^oce.
the applicant under a charge executed in his favour by the sd C upon
the debt of the sd 0. And [^order on off rccr to pay costs']. Royal Trusts
Assets, Sfc. Corporation, 1892, E. 0149. Eeg. 7 Dec. 1893.

{Address, date, and title.) Form 441.



I am desired by the off recr in cos liquidation to inform you that Notice of in-
notice has been received that you have, by a written instrument dated te^ition to pay

, charged or assigned all your interest in the principal sum of assignee of

1, due to you in the above-named matter, to . This assign- '^®"*'

ment is registered subject to the payment already made of a



dividend of ■ in the £, amoimting to 1, on the admitted claim of

1. I hereby give you notice that after the expiration of seven days

from the above date the off recr intends henceforth to pay all dividends
on the above-mentioned debt to . I am, your obedient Servant,



Take notice, that a final dividend is intended to be declared in the Form 442.



above matter, and that if you do not establish your claim to the satis- Notice to
faction of the Ct on or before the day of , 189 — , or such persons claim-
later day as the Ct may fix, your claim will be expunged, and I creditors of
shall proceed to make a final dividend without regard to such claim. intention to

Dated this day of , 189 — . dividend.

G. H., Liqr, Form 70 of

To X. Y. [_address~\. 1890.

Upon the applicon of [oflt] liqrs, &c., Order that the sd [off] liqrs Form 443.
do pay out of the assets of the sd coy to the respective creditors whose Order to pay
names are set out in the first schedule to the chief clerk's certificate, dividend,
dated 21st July, 1879, a dividend of 2s. Qd. in the pound on the amount
of their respective debts appearing by the sd certificate to be resply
due to them. And it is further ordered that the [off] liqrs do retain
in hand the respective dividends due to B. and other persons found by
the sd certificate to be contributories of the sd association, and the
calls upon whose shares in the sd association are unpaid, until the sd
B., &c. shall resply have j)d the calls by the sd orders of the 17th June,
1880, and 8th March, 1880, ordered to be pd by them. Trust Associa-
tion, M. E., 27th May, 1880. B. 983.

A contributory wlio is a creditor is entitled to receive dividends on his debt
pari passu -with the other creditors, provided he duly pays any calls actually made.
GrisseWs case, 1 Ch. 528.



394



WINDING-UP BY THE COURT. [ChAP. XXXVII.



Form 444. Upon the applicon of "W., the liqr, and upon hearing counsel for

T ., , , the liqr and for B. and C, the plfFs in an action of, &c., Order that,

pay dividend, notwithstanding the claim of the plffs in the sd action against the coy,

making ^-^^ j^-^^ ^^ ^^ liberty to declare and pay a first dividend not exceeding

disputed 8*. in the pound upon the debts and claims against the coy which

claims. have been allowed by him at the date of this order, amounting to

67,92H. 16s. 9c?. : Provided that the applicant do reserve out of the

assets of the coy a sum sufficient for the payment of a like dividend

upon the sum of 37,714/. referred to in his sd afft, and upon the sum

of 1, in respect of the claim of the sd B. ; Kqr to be at liberty to

retain his costs out of assets ; costs of B. and plffs to be reserved until
further order. Hojjkins, Gilkes 8f Co., M. E., 10th Dec. 1879. A.
2415.



Form 445.

Order to pay
dividend.



Preferential Debts.

Upon the applicon of T. and C, the prov off liqrs of the above-
named bank, and upon hearing the solors for the applicants and for
the sd bank and for her Majesty's Postmaster-Greneral, and upon
reading, &c., Order that the applicants, as such prov liqrs, forthwith
out of any assets in their hands pay to her Majesty the Queen or her
duly authorized agents the sum of 369/. 15s., such sum having been in
the hands or control of the sd bank at the date of its susjDension, and
in respect of which writs of immediate extent have been issued, and
which sum is made up as follows : —

100/., Being twenty 5/. notes of the West of England, «&c. Bank held
by her Majesty's Postmaster-General when the sd bank
stopped payment.
200/., Being for three bills of the sd bank for 120/., 50/., and 30/.
respectively, held by her Majesty's Postmaster-General when
the sd bank stopped payment.
69/. 15s., other moneys of her Majesty. And order that the costs of
the sd prov liqrs and of the sd bank of this applicon and incident
thereto be costs in the winding-up. West of England, Sfc. Bank,
Malins, Y.-C, 20th Dec. 1878. B. 2118.

For order directing payment to her Majesty of County Coui't moneys deposited in
same bank, sec ibid.



Liberty to
pay rates.



Form 446. Upon the applicon of the liqr, &c., and upon hearing the solors for
the applicant and for the overseers of Darlington, and upon reading an
oi'dcrin tlicso matters, dated 7th July, 1877, Order that the sd liqr be at
liberty, out of the assets of tlie sd coy, to pay to the overseers of
Darlington the sum of 212/. 7s. 2\d., being the amount of the poor
rate made and allowed on tlio Ist of May, 1877, in respect of the coy's
promises (retained in beneficial occupation of the liqr), and that the sd



CREDITORS. 395

liqr be allowed the same in liis accounts of receipts and payments.
And order that the sd liqr pay the sum of 21. 2s. to L., the solrs of the
sd overseers of D., being the amount of their ascertained costs of this
application. Sotiih Durham Iron Co., Ilall, V.-C, 3rd August, 1877.
B. 1476. See similar order by Pearson, J., in Bernard v. Jocehjn, and
Newmarket Co., 18th Dec. 1883. A. 1973. See note to Form 392c,
supra.

Secured Creditors.
See supra, p. 373.
Tor affidavit of proof by secui-ed creditors, see Form 413.

Upon motion this day made unto this Ct by counsel for the H. Bank, Form 447.

whose registered office is in , and upon hearing counsel for S., the Order allow-

off recr and liqr of the above coy, Henry Lister and Son, Limtd, and ing- amend-
upon reading an order dated, &c., two affts, &c.. This Ct doth order JJ'/secured™*^*
that the applicants be at liberty to amend the proof of the debt put in creditor.
on their behalf at the meeting of the creditors of the sd coy, Henry
Lister and Son, Limtd, held on Monday, the 29th day of Feb. 1892,
by inserting in such proof a statement of the particulars of a certain
security held by the applicants, being transfer of a mortgage of a
certain leasehold mill and premises known as, &c., situate at, &c.,
dated, &c., and referred to in the sd affts of, &c., and by further insert-
ing in such proof the value at which the applicants assess the sd

security ; And it is ordered that the applicants, the Bank, do pay

to the sd S. his costs of this applicon, and occasioned by the sd amend-
ment (such costs to be taxed by the taxing master as between solor and
client). Henry Lister and Son, North, J., 6th May, 1892. A. 845.
See report in (1892) 2 Ch. 419.

Upon the applicon of W., the liqr of the coy, &c., Order that an Form 448.

inquiry be made as to what securities have from time to time been Inquiry a,s to

given by the sd coy, and when, and to whom, and for what amounts, ^^^^ ^®°^'
., 1P11 •• rities given.

and how much remained due upon each of the sd securities for principal

and interest up to 17th Sept. 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

respve rights of the secured creditors to be found and certified as afsd.

Hamilton^ Windsor Iromoorks Co., Malins, V.-C, 21st Dec. 1878.

A. 2340. See also 27 W. E. 827.



Upon the applicon of D., the [o££] liqr, &c.. Order that the sd D., Form 44i7.
out of 3,315/. and other sums of money which may be payable to him Orderf

in respect of the sale of the Tavern, pay to Messrs. "W. & Co. the payment of

sum of 1,835/., being the amount due to them for ppal, and secured ^^oi'tgagees.



396



WINDING-UP BY THE COURT. [ChAP. XXXVII.



by a certain indenture, &c., together with 126^. 25. id., the amount of
interest thereon at 5 p.c. p. a., to 15th May, 1878; and also the sum
of 10/. 19s. 3d. for goods supplied by them to the sd coy ; and II. I6s.
for insurance of the premises belonging to the sd coy, together with
the sum of 27/. 5s. lOd., the ascertained costs of the sd Messrs. W.,
making together the sum of 2,001/. 4s. And order that [^similar order
as to two subsequent incumhrancers^. And order that the sd liqr there-
out also pay to Messrs. C. F. «& Co., the former solors of the sd coy,
the sum of 110/. in full satisfaction of their costs, charges, and expenses
against the sd coy, amounting to the sum of 189/. 6s. 8f/. And order

that the sd Messrs. and , forthwith cause satisfaction

to be entered upon the Middlesex Register of the amount of their
respective mortgages. Hammersmith Town Hall Co., M. E.., 7th May,
1878. A. 869.



Form 450.

■ Liberty to
pay off mort-
gage out of
proceeds of
sale.



Upon the appHcon of the liqr, and upon hearing the solors for the
applicant and for F. M., the creditors' representative, appointed by
order dated, t&c, and for W. and S., the mortgagees of the coy's stock,
and upon reading, &c.. Order that the liqr be at liberty to pay to the
sd S., out of the proceeds of the property in mortgage to him, the sum
of 4,326/. 8s., due to him for ppal, interest, and commission, upon
mortgage dated, &:c., given by the sd coy to the sd S. And order that
the liqr pay to the sd S. the sum of 48/. 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, 20th May, 1878.



Form'451. Upon the applicon of M., of, &c., and upon reading an afft of the
Order for ^^ -^^-j fil^d, &c., and upon hearing counsel for the applicant, and for

release of the sd ofi liqr. And the applicant by his counsel undertaking with

redemption *^® ^^ ^^^ *° P^J ^^® costs of the off liqr of this applicon, and of such
to mortgagee, release or conveyance and releases or conveyances as are hnftr mentd,
and of such discovery as is hnftr mentd, such costs to be taxed between

solor and client in case the parties differ, and to be pd to Messrs. , his

solors, And the sd off liqr by his counsel undertaking to execute such
release or conveyance, and releases or conveyances as are hnftr mentd,
and also to give to the applicant, such discovery of title deeds and
other documents, matters and things as is hnftr mentd. This Ct doth
order that tlio sd off liqr do execute to the applicant, or as he may
direct a proper roleaso or conveyance of the right or equity of redemp-
tion of the coy of, and in all and singular the lands and properties
comprised in the legal mortgage dated the 9th Feb. 187], in the sd
first mentd afft of the sd M. mentd. And also a proper roleaso and
convoyanco of tho right, title, interest and equity of redemption of the



CREDITORS. 397

coy, of aud in all and singular the lands and properties comprised in.
tlie equitable mortgage in the same afft also referred to with discovery
of deeds and other documents of title, matters and things necessary in
that behalf, such release or conveyance, and releases or conveyances,
to be resply prepared by the applicant, and tendered for the perusal
and approval to the sd off liqr, and to be resply settled by this
Honourable Ct in case the parties shall not agree as to the form or
forms thof resply, And any party is to be at liberty to apply as he
may be advised. Ex parte Trading Co., Stirling, J., 21st July, 1892.
A. 1045.

See, further, as to debenture holders, Chap. XXXVIII.



Upon the apjilicon by originating summons, dated 24th July, 1891, Form 451a.

of the plaintiffs the Bank of Africa for an order to have an account taken X~^ ^

J- , , _ ... Order eniorc-

of what is due to the plaintiffs for principal, interest, and costs under ing charging

and by virtue of a charge created by an order, dated the 23rd Jan., ?i'der obtained
•^ . . . ... 11 Queen s

1891, and made in an action in the Queen's Bench Division of the Bench

High Court of Justice of The Bank of Africa, Limtd v. Claude Theodore I^^vision.

James Vautin (sued as Claude Vautin), 1890, B. 4945, by which the

defendant's interest in 5,212 shares of \l. each in the N. Coy, Limtd,

was charged with the payment of a judgment debt of 1,570/. Is. 3f/.

with interest thereon, and in default of payment of what should be

found due on taking the sd account to have the sd charge enforced by

foreclosure or sale of the sd shares so charged as afsd, and also in the

meantime to have a receiver of the dividends and interest payable on

the sd shares appointed by the Ct, and upon hearing the solors for

the applicant and for the defendant, and upon reading the judgment,

dated the 30th Dec, 1890, in the sd action in the Queen's Bench

Division, the charging order of 23rd Jan., 1891, and an afft of D.,

filed 6th Aug., 1891, and it appearing by such afft that there is now

due and owing to the plaintiff Bank 1,570/. Is. od. with interest

thereon at the rate of £4 per cent, per annum from 30th Dec, 1890,

It is ordered that the sd 5,212 shares fully pd up of £1 each in the N.

Coy, Limtd, be sold by the plaintiffs out of Ct, and that the proceeds

of such sale be pd into Ct to the credit of this action. Bank of Africa,

Limtd Y. Vautin, North, J., 6th Aug., 1891. A. 1203.

A charging order must be enforced in a separate action commenced by writ or
originating summons. Legc/ott v. Western, 12 Q. B. D. 287 ; Riclietts v. R., (1891)
W. N. 29 ; K. S. C. Ord. LV. r. 5a.



Preferential Debts.

The Preferential Payments in Bankruptcy Act, 1888 (51 & 52 Vict. c. 62, s. 1),
enacts as follows : —

1, — (1) In the distribution of the property of a bankrupt, and in the distribution



398 WINDING-UP BY THE COURT. [ChAP. XXXVII.

of the assets of any company being wound up under the Companies Act, 1862,
and the Acts amending the same, there shall be paid in priority to all other
debts —

(a) All parochial or other local rates due from the bankrupt or the company at the

date of the receiving order, or as the case may be, the commencement of
the winding-up, and having become due and payable within twelve months
next before that time, and all assessed taxes, land tax, property or income
tax assessed on the bankrupt or the company up to the 5th day of April
next before the date of the receiving order, or as the case may be, the
commencement of the winding-up, and not exceeding in the whole one
year's assessment ;

(b) All wages or salary of any clerk or servant in respect of services rendered to

the bankrupt or the company during four months before the date of the
receiving order, or as the case may be, the commencement of the winding-
up, not exceeding fifty pounds ; and

(c) All wages of any labourer or workman, not exceeding twenty-five pounds,

whether payable for time or for piece-work, in respect of services r.endered
to the bankrupt or the company during two months before the date of the
receiving order, or as the case may be, the commencement of the winding-
up. Provided that where any labourer in husbandry has entered into a
contract for the payment of a portion of his wages in a lump sum at the
end of the year of hiring, he shall have priority in respect of the whole of
such sum, or a part thereof, as the Court may decide to be due under the
contract, proiDortionate to the time of service up to the date of the receiving
order, or as the case may be, the commencement of the winding-up.

(2) The foregoing debts shall rank equally between themselves, and shall be paid
in full unless the property of the bankrupt is, or the assets of the company are,
insufiicient to meet them, in which case they shall abate in equal proportions between
themselves.

(3) Subject to the retention of such siims as may be necessary for the costs of
administration or otherwise the said foregoing debts be discharged forthwith so far
as the proi^erty of the debtor or the assets of the company, as the case may be, is
or are sufficient to meet them.

(4) In the event of a landlord or other person distraining or having distrained on
any goods or effects of a bankrupt or a company being wound up within three
months next before the date of the receiving order or the winding-up order respec-
tively, the debts to which priority is given by this section shall be a first charge on
the goods or effects so distrained on or the proceeds of the sale thereof.

Provided that in respect of any money paid under any such charge the landlord
or other person shall have the same rights of priority as the person to whom such
payment is made.

{.')) This section, so far as it relates to the property of a bankrupt, shall have
effect us part of section forty of the Bankruiitcy Act, 1883. (6) See Appendix.

But a modifying Bill now (Ap. 1897) pending for an Act intituled the Preferential
Payments in Bankruptcy Act, 1897, seems likely to pass. Sec Appendix, p. 863.

2. — (1) Nothing in this Act shall alter the effect of section five of the Act
twenty-eight and twenty-nine Victoria, chapter eighty- six, "To amend the law
of partnership," or shall prejudice the provisions of the Friendly Societies Act,
1875, or shall affect the priority given to the payment of funeral and testamentary
expenses by section one hundred and twenty-five of the Bankruptcy Act, 1883.
{He Miller, (1893) 1 Q. B. 327.]

(2) Nothing in tliis Act shall affect the provisions of the Stannaries Act, 1887.

3. This Act shall apply only in the case of receiving orders and orders for the



CREDITORS. 399

aclministration of the estates of deceased debtors accordiug to the law of bank-
ruptcy made and windinga-iip commenced after the commencement of this Act.

4. This Act shall not apply to Ireland.

5. This Act shall commence and come into operation from and immediately after
the last day of December, one thousand eight hundred and eighty-eight.

G. Repealed. See Appendix.

7. This Act may be cited as the Preferential Payments in Bankruptcy Act, 1888.

The above Act only deals with the api)lication of the assets of the company, and
in no way prejudices the rights of secured creditors. Richards \. Overseers of Kid-
dermimter, (1896) 2 Ch. 212 ; Lhnjd v. David Lloyd (?• Co., 6 C. D. 339.

The following Regulations under the Act of 1888 have been approved by the
Board of Trade and the Commissioners of Inland Revenue as to the Queen's taxes
assessed on companies wound up by the Court, and were published in January, 1893: —

1. "Where a winding-up order is made on or after the 1st December in the year
of assessment, or the official receiver or liquidator remains in possession of the
premises in respect of which Queen's taxes are assessed under a winding-up order
made prior to the first December until the 1st Jan. next following, the collector
shall be entitled to prove for the said taxes, viz., the income tax (Schedule "A."),
inhabited house duty, and land tax assessed on the company up to the 5th April next
following the date of the winding-up order, and such proof shall rank for dividend.

2. Where a winding-up order is made prior to the 1st December in the year of
assessment, the Inland Revenue authorities will make no claim on the official
receiver or liquidator for income tax (Schedule " A."), inhabited house duty, and
land tax for the year ending 5th April next following the date of the winding-up
order, unless the official receiver or liquidator remains in possession of the premises
in respect of which the taxes are assessed until the following 1st January.

3. Where the official receiver or liquidator disposes of a business as a going con-
cera, he will allow to the purchaser the proportion of the income tax (Schedule "A.")
and land tax for the current year to the date of the completion of the purchase, and
the purchaser shall become liable to the Inland Revenue authorities for the tax in
question for the whole year.

4. Provided always that nothing in these regulations shall be deemed to interfere
with the right of the Crown to enforce payment of income tax (Schedule "A.")
and land tax actually due and payable by distress levied on the property of the
company. These taxes for the year ending 5th April next following the date of
the winding-up order should therefore be dealt with on the footing of " secured"
debts, and be paid by the official receiver or liquidator on demand without any
proof on the part of the collector if on or after the 1st January in the year of
assessment there are on the premises sufficient goods belonging to the company on
which the collector might levy, and notice of any such claim should be given to the
official receiver or liquidator by the collector forthwith upon the making of the
winding-up order. If at such time there are no goods upon which distress can be
levied, proof of the debt may be made by the collector as dii-ected in paragraph 1,
and such proof shall, if found correct, be admitted and rank for dividend.

In like manner any income tax (Schedule A.) and land tax assessed on the
company up to the oth April next before the date of the winding-up order should
be dealt with as secured debts if there are at the time of the collector's demand
sufficient goods on the premises on which he might levy. If there are no such
goods, proof of the debt may be made by the collector, and such proof shall, if
found correct, be admitted as a professional claim in so far as it relates to taxes
payable in full under sect. 1 (la) of the Preferential Payments in Banla-uptcy Act,
1888, and as ranking for dividend for any part thereof not so payable in full.

5. Where income tax is outstanding under Schedules B., D. or E., the inland



400



WINDING-UP BY THE COURT. [ChAP. XXXVII.



Form 452.

Model form
of claim for
relief from,
payment of
income tax.
Schedules B.,
D., and E.



revenue authorities will, on receipt of an affidavit by tlie secretary or other officer
of the company, with a certificate by the official receiver or liquidator, settiug out



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 54 of 134)