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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left in the chambers of the Eegistrar Cos (Winding-up) and your
name is included therein as the holder of \_state how many~\ first {or as

may be) debentures numbered , and all dated the 189 — {or

as may be) for 1., each bearing interest at 1, p.c. p. a.

\_Sef out (he numbers and dates of the dehentures.~\

From the sd list it also appears that interest is due on jowv sd deben-
tures {or as may he) from the 189 — down to -which date all

interest is believed to have been pd.

If you are such holder it will bo necessary in order that you may
participate in the benefit of the sd judgment [order] that your deben-
tures {or as may be) should bo produced before the Eegistrar Cos

(Winding-up) and day the day of 189 — at o'clock

in the noon, is appointed for this purpose, when you must attend



DEBENTURES AND DEBENTURE STOCK. 423

either personally or hy your solor or agent at the chambers of the sd
registrar situate at Bankruptcy Buildings, Carey Street, London, W.O.,
and produce your debentures {or as may he).

If you are no longer the holder of the debentures {or as may he) or
any of them jow are requested to at once let me know the names and
addresses of the person or persons to whom you transferred such of the
sd debentures {or as may he) as are no longer held by you.

Pit's Solor.

Dated, &c.

[iVame, address, description.']

The Schedttle.

[^Here insert material parts of judgment or order. \



Upon the applicon of the pit, &c., order that M., whose name Form 464a

appears in the register of debenture stockholders of dft coy, and E. ; — ; —

(one of the j)arties claiming an interest in the debenture stock for stockholders °
2,000/. appearing in the sd register of debenture stockholders, as not served
standing in the name of the dft T.), upon whom resply service of the ment. °'
sd judgment dated 3rd April, 1895, has been dispensed with, be and
they are hby resply bound by the sd judgment as if served therewith.
Maricick v. Thurlow, Eomer, J., 8th June, 1896.



Upon applicon of the pits, order that in addition to the account Form 464b.

directed by the judge in this action dated 21st July, 1893, the follow- 7r~, — : tt'

. , , , . ... Order to add

mg inquiry be made, that is to say : — An inquiry who are the inquiry to

persons entitled to participate in the benefit of the debenture in the J^^'^D'^ent.

judgment mentd, and to what extent and in what order of priority

resply, and in what shares or proportion the monej's to be recovered

under the sd debenture ought to be divided amongst such persons.

Magniac v. Arbitrage and Finance, Vaughan Williams, J., 16th Jan.,

1896.

See R. S. C, 1883, Ord. XVI., r. 40, as to poAver to add to judgment.



Upon the applicon of L., by summons dated, «S:c., and hearing the Form 465.
solors for the applicant and for the pits, and reading, &c., and it being



alleged that the sd applicant is a mortgagee of the dft coy, and that attend to
the pit on the 22nd April, 1891, obtained an order for inquiries and debenture
account, that the applicant hath not been served with a copy of the sd
order [and is desirous of having liberty to attend the proceedings under
the same], and upon reading the sd order, It is ordered that the sd L.
be at liberty at his own expense to attend the proceedings under the



424



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



Liberty for
purchaser of
plaintiff's
debentures to
conduct the
action.



sd order dated, &c, Manchester, Sfc. Banking Co. v. Paragon Works,
Lvntcl, Kekewicla, J., at Chambers, 15th July, 1892. B. 919.

Having regard to the above-mentioned directions (see notes to Form 463), the
words in brackets are now omitted.

Form 466. Upon the applicon of P., of &c., and upon hearing counsel for the
applicant and for A., and the solors for the pit and the dft coy, and
upon reading &c., and A. to -whom by the sd order dated &c., the
conduct of this action was committed, except as to the conduct of the
sale or realization of the ppty of the dft coy by their counsel admitting

that the applicant has pd to them the sum of £ for principal and

interest due upon the debenture held by the sd A., and is now the
transferee thof, and the applicant undertaking to pay forthwith to
the sd A. 150?. and such further sum (if any) as may be allowed them,
on taxation of their costs of this action and of this applicon and as
mortgage debenture holders, and the sd A. undertaking to refund to
the applicant such part (if any) of the 150?. as may be the difference
between 150?. and their taxed costs as afsd. It is ordered that the sd
P. be at liberty to attend the proceedings in the action in the place of
the sd A. And it is ordered that the conduct of this action be com-
mitted to the applicant in the place of the sd A., except as to the
conduct of the sale or realization of the ppty of the dft coy, which is
to be conducted by B., the liqr of the dft coy, and this order is to be
without prejudice to the question as to whether the applicant is
eventually to be allowed out of the assets of the above-named coy
any part of the costs of the sd A. Harland v. Hull Street Tramivays
Co., Chitty, J., at Chambers, 2nd May, 1892. A. 669.

For form of liberty to debenture holders to bid, see Part I., p. 882.
For forms of notices of judgment, see lb. p. 886.



Advertise-
ment pur-
suant to order



Form 467. PUESUANT to a judgment of the High Ct of Justice, Chancery
Division, dated the 22nd of July, 1896, made in an action Brown,
Jansnn &)- Co. v. The Queen's Birthday United Gold Mities, Limtd., and
others, 1895 B., No. 2,429, whereby it was ordered {inter alia) that an
inquiry be made what (if any) debentures issued by the dft, the
Queen's, &c. Co., Limtd., and entitled to the benefit of the indenture
dated, kc. in the sd judgment mentd are now outstanding and impd,
and who are now the respive holders thof, and that an account may be
taken of what (if anything) is due to the pits and all others the
holders of tlio sd dobonturos for principal and interest in respect of
their sd debentures resply. Notice is hby given that all persons
claiming to bo holders of sucli debentures are required on or before
the 5th day of March, 1896, to send their names, addresses, and
descriptions, and the particulars of their claims as such debenture



DEBENTURES AND DEBENTURE STOCK. 425

holders for principal and interest, and also the full particulars of the
debentures held by them, together -with the names and addresses of

their solors (if any), to , of , the solor for the pit in the sd

action, and if so required by notice in writing such debenture holders
are to come in and prove their claims at such time and place as shall
be specified in such notice.

Monday, the 15th day of March, 1897, at 2.15 o'clock in the after-
noon, at the Chambers of the Eegistrar, Cos AVinding-up, Bankruptcy
Buildings, Carey Street, London, is appointed for adjudicating upon
the claims.

Dated this 26th day of Jan., 1897.

\_Si(/na(ure of lieffisfrar.'j
\_Sig7iature of A. i?.], solor for the pits.

As to adrortisements, see R. S. C, 1883, Ord. LV., r. 47. The words until lately
inserted in such advertisements, " or in default thereof they ■will be peremptorily
excluded from the benefit of the said order," were apparently inoperative, at any
rate they could not take away a debenture holder's security, and, accordingly, the
words are now usually omitted.

Upon motion this day made unto this Ct by counsel on behalf of the 111



above-named pit, and upon hearing counsel for the deft coy, and Order ap-
upon reading the -writ of summons issued in this action on the 8th ceiver tmd "
Jan., 1896, the afft of W. and the affl of I., both filed the 21st Jan., manager.
1896, and the exhibits in the last-mentd afft referred to, And the pit
E., by his counsel, undertaking to be answerable for what H. the recr
and manager hnftr named may receive under this order until he shall
have given security as hnftr directed, This Ct doth hby appoint H. of

, chartered accountant, recr on behalf of the pit and the other

debenture holders of the dft coy of all the undertaking, capital, stock,
goods, chattels, effects, and other real and personal ppty of the dft
coy, comprised in or subject to the security and charge created by the
debentures issued by the dft coy to the pit and the other debenture
holders and to manage the business of the dft coy, the sd H. to act at
once but not to a.ct as manager beyond the 29th April, 1896, without
the further order of the Ct. And it is ordered that the sd H. do, ou
or before the 29th Feb., 1896, give security pursuant to Ord. L., r. 16.

And it is ordered that the dfts the Coy, Limtd, do deliver over to

the sd H., as such recr and manager, all stock, goods, chattels, and
effects belonging to the sd dfts and all books, leases, deeds, papers,
and documents relating thereto. And it is ordered that the sd H. do,
within such time as shall be fixed by the certificate of the Eegistrar
Cos (Winding-up) of his having given security, leave in the chambers
of the sd registrar his accounts as such recr and manager, and do within
fourteen days after the date of the certificate of the allowance of
every such account pay the balance which shall be certified to be due



426



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



from him, or eucli part thof as shall be certified to be payable into Ct
as directed in the Lodgment Schedule hereto.

Lodgment Schedule : Ist column, " Balance to be from time to time
certified on passing his accounts or such part thof as shall be certified
to be payable;" 2nd column, " H., receiver." Riidge on behalf, Sfc. v.
Worcestershire Preserving Coy, Litntd. Vaughan Williams, J., 29th
Jan., 1896.



Form 469.

Order to
continue
manasrer.



Upon the applicon by summons, &c. of the pltfs, order that S., the
recr appointed by the sd order of the 22nd Dec, 1894, be continued
until the 6th July, 1 895, as manager, to manage and work the business
of the df t coy, with liberty to make the payments necessary to keep the
business going ; but the sd S. is not to act as such manager beyond
the sd 6th July, 1895, without further leave of the Ct. Eomer, J., 20th
June, 1895.



Form 469a.

Appointment
of recoiv'er
and manager
for six

months, •with
leave to
borrow and
charge
amount in
priority to
debentures.



L'pon motion this day made unto this Ct by counsel for the pltf, and
xipon hearing counsel for the defts, and upon reading the writ of
summons issued in this action on the 16th day of June, 1892, and an
affdt, &c., and the exhibit AV.l therein referred to, being a debenture
dated the 1st July, 1887, under seal of the deft coy, and the defts by
their counsel submitting to the following order, and the pltf by his
counsel undertaking to be responsible for anything to be received
by the recr next hereinafter appointed pursuant to this order, until
he shall have given security as hnftr provided, this Ct doth hereby
appoint Mr. E. S., of, «&:c., accountant, recr and manager on behalf
of the pltf and other debenture holders of the deft coy, of all
real and personal property now or at any time hereafter belonging
to the said deft coy comprised in or subject to the security and
charge created by the said debenture dated the 1st July, 1887, being
the said exhibit marked AV. 1 .

And it is ordered that the said E. S. do on or before the 8th day of
July, 1892, give security as such recr and manager to the satisfaction
of the judge in Chambers. And it is ordered that the appointment of
the sd E. S. as manager as afsd shall not extend beyond six months
from the date of this order without leave of the judge at Chambers
being first obtained. And it is ordered that the sd E. S. be at liberty
to borrow in the whole 350/. at the rate of 51. p. c. p. a. by way of
charge on the real and personal property of the deft coy, to have
priority over the debentures issued by the deft coy. And it is ordered
that the said E. S. do from time to time pass his accounts and pay the
balance which shall be certified to be duo from him as the judge shall
direct. And it is ordered that the defts [name of coy) do deliver over
to the said E. S. as such recr and manager, all books, leases, deeds,



DEBENTURES AND DEBENTURE STOCK. 427

papers, and documents relating to the said real and personal property
comprised in the sd debenture. Crowley v. William Ashby ^- Sun, Ld.,
Chitty, J., IGth June, 1892. A. 844.

It may now be considered sottkd law that, where requisite, the Court will autho-
rize a receiver to give a charge in priority to the debentures. Greenwood v. Alge-
siras Railway, (1894) 2 Ch. 205.

As to limiting the time for which a manager is appointed, see Form 468.

As to specially directing possession to be taken, see Marruirje^ Keave ^- Co.y (1896)
2 Ch. GG:3.

Upon motion, &c. : Let all the hereds and premes comprised in the Form 470.

indenture, dated, &c., and all the chattels or things upon or connected Z~,

o 1 Sale on

with such hereds and prems and contd in the sd indre be sold with motion,
the approbation of the judge. And let the proceeds of such sale be pd
into Court to the credit of this action, &.Q., or orwise as the judge
shall direct. And the plaintiff by his counsel adopting the agmt
hereinar mentd, Let the agmt dated 31st Oct. 1877, and made, &c.,
for the sale of the sd hereds, known as the Own estate, at the price of
16,000/., be carried into effect, and let the moneys to arise from the
sale of the last-mentd hereds bo pd into Court to the cx-edit of this
action, &c., or orwise as the judge shall direct. Davis v. Ashicin, Hall,
V.-C, 27th Nov. 1877. A. 3552. See also the report in 26 W. E. 139.

The above order was made under the old practice, but see now R. S. C, Ord. LI.,
r. lb (Nov., 1893), Ann. Pr. (1897) 950.

An order for sale is sometimes made before the hearing and sometimes at the
hearing, and in other cases after the hearing. Very commonly the judgment gives
liberty to apply in chambers as to sale. See Form 459.

When there is a debenture trust deed the conduct of the sale is to be given to the
trustees, unless the Court otherwise directs. See R. S. C, Ord. L., r. 10 ; lJi(u». v.
Mersey Eubber Co., Romer, J., at Chambers, 189G.

Upon motion this day made, &c., and upon hearing, &c., and upon Form 470a.

reading order dated 23rd June, 1896, &c. Order that the undertaking 7 7^ ; T^

of the dft coy and all the ppty whatsoever and wheresoever comprised for s;ile as

in the above-mentd debentures be sold as a o-oing: concern, with the 8'"^°=

° o ' concern.

approbation of the judge in chambers, and that the moneys to arise
by such sale be pd into Ct to the credit of this action. Costs of motion
to be costs in action. Liberty to aj^jDly as to such sale. Re Olympia,
Limtd., Peacock v. Olympia, Limtd., subject to further order. Yaughan
Williams, J., 3rd July, 1896.



Upon motion for judgment, &c. [^declaration of charye, accounts, and porm 470b

inquiries'], and order that real and personal ppty comprised in the sd

deed, and the business of the coy, be sold as a going concern with gaie as "-oino-
the approbation of the judge, and let the money to arise by such sale concern.



428 WINDING-UP BY THE COURT. [ChAP. XXXVIII.

be pd into Ct to the credit of this action, &c. Perry on behalf, 8fc. v.
Glutton, Malins, V.-C, 7th July, 1876, P. 139. See Part I., Form 542,
followed by Kekewich, J., Hall v. Goij, L'lmtd., (1891) H. 3,315, and
by Yaughan Williams, J., Crawford v. Gamgee, S^c. Limtd., (1892)
C. 3,091.

Form 470c. Order this pjaty of the coy at M., and all other the real and personal
Liberty to VV^J °^ ^^^ ^^^ resply comprised in the fii'st and second debentures, to
debenture -[^g gQ^^j ^j^]^ ^j^q approbation of the judge. W. [the Uqr'] to have the
conduct of such sale, uith liberty to the pits and all other debenture
holders and other parties to the action to bid at the sd sale. Order
that money to arise from sale be pd to the sd W., and that he do
within fourteen days after receipt thof pay same (the amount and date
of receipt to be verified by afft) into Ct, &c. Smith, Ward ^' Co., on
behalf ^^c. v. Eastern Sugar Co., and M., on behalf, ^'c, Jessel, M.E.,
2nd April, 1881, B. 1,079. See Part I., Porm 546.

In another case the judgment ordered "that the property now comprised in and
subject to the said debentures or the said deeds or either of them be sold forthwith,
with the approbation of the judge, and that the moneys produced thereby be paid
into Court, &c. , and any party not having the conduct of the sale is to be at liberty
to bid thereat." Johnson v. Aberdare, Chitty, J., 23rd January, 1896, Part I.,
Form 551. And for order giving debenture holders liberty to bid and to set off a
large percentage of their debcntiu-es against purchase-money, see or&evm. Douglas \.
Surrey, ^-c. Co. of Chitty, J., 13th Jan., 1883, set out in Part I., p. 894.

As to liberty to bid.— As a general rule, a party to the action is not allowed to bid
and purchase without obtaining previous leave. Ehcorthy v. Billing, 10 Sim. 98 ;
and, in general, leave to bid is not given to the party having the conduct of the
action. Domville v. Berrington, 2 Y. & C. 723. See, further, Seton, 295.

Form 471. Upon the applicon of the plaintiff and hearing the respective solicitors
fT'-. 7" T for the sd plaintiff and the defendants, and upon reading the judgment
of company's dated the 9th day of April, 1886, and the order dated the 25th day of
patent, May, 1886, appointing H. P. K. receiver herein :

deberituic It is ordered that the English and foreign letters patent belonging

holder to bid. ^^ ^]^g defendant coy bo sold by tender, with the approbation of the

judge, such tender or tenders to be sent in to the chief clerk.

And by consent it is ordered that the plaintiff and Frederick "William

Varley, a debre holder, be at liberty to tender for and become the

pcliasor or pchasors of the sd letters patent.

And it is ordered that the money to arise from such sale be pd into

Court to the credit of this action. Beale v. Varley, 1886, B. 1548.

Bacon, V.-C, 22nd Jan. 1886.

Form 472. Upon iho applicon of the pit, and upon the hearing the solors for
Ordtr for HaTc *^® applicant for the [oil] liqr of the deft coy for the following parties
of tramway.



DEBENTURES AND DEBENTURE STOCK. 429

having liberty to attend, namely, S., K., T., and G-., and upon reading
an order for sale dated 25th March, 1891, two affts, &c.

It is ordered that the sd agreement, dated the 25th July, 1891, made
between the rear and manager of the undertaking of the deft coy and the

pit of the one part, and tho Coy of the other part, for the sale and

purchase of the deft coy's undertaking, dated the 25th July, 1891, as
modified by the supplemental agreement dated the 28th July, 1891, be
carried into elfect. Lowe v. North London, ^t. Co.; hi re same Co.,
North, J., at Chambers, 31st July, 1891. B. 1130.



Upon applicon of the pits and upon hearing, &c. Form 473.



Another.



It is ordered that the said conditional agreement, dated, &c., and
made between the deft coy by the sd D., the recr and manager of the
undertaking of the deft coy of the one part, and B. of the other part, for
the sale of the undertaking and property of the deft coy, be confirmed
and carried into efltect. City of London Contract Corporation v.
Coventry, Sfc. Co., Chitty, J., at Chambers, 16th May, 1892. A. 722.



Upon the applicon of pit, &c., and upon, &c., order that a condi- Form 473a.
tional agreemnt dated 12th May, 1896, and made between the L. Co., Order con-
Limtd., of the one part, and K. and T. of the other part, for the sale firmino: sale of

to the sd K. and T. at the sum of 1, of certain freehold land payment into

situate at , upon the terms and conditions referred to in the sd Court.

contract, be carried into effect, and the sd K. and T., by their solors
declaring themselves content with the title to the sd freehold land
already purchased by them, order that the sd W. (the receiver and
liqr) and the sd K. and T. do on or before the 30th Aug., 1896, make
the respive lodgments in Ct as directed in the lodgment schedule
hereto, and that upon such payments being made the sd K. and T. be
let into possession of the sd freehold land, and order that all proper
parties are to join in and execute a proper conveyance of the sd
freehold land to the sd K. and T., or as they may direct, such convey-
ance to be settled by the Court in case the parties differ, and order

that the sd "VV. be at Hberty to pay the sum of /., to Messrs. ,

as commission for negotiating the sd sale. [The lodgment schedule

provided for lodgment of " deposit on sale of freehold land at , to

K. and T., under agreemt dated the 12th of May, 1896, by W.," and

also for lodgment of " balance of 1, purchase-money under the sd

agreemt by K. and T." "The above funds not to be transferred or
otherwise dealt with without notice to K. and T., the purchasers."]
Somerset v. Land Securities Co., Limtd., Yaughan Williams, J., 3rd
June, 1896.



430



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



Form 474. Upon the applicon of pit, &c., order that A., B. and C, the receivers
Q , T appointed in this action, may raise and borrow a sum not exceeding
rizing receiver 2,000^. upon the security of and as a charge upon the ppty, assets, and
to borrow. undertaking of the dft association, comprised in or subject to the
securities and charge created by the debentures issued by the dft
association to the pit and all other debenture holders in priority over
the sd debentures, and on the terms that the same shall not be repay-
able to the lenders except at the option of the borrowers until Slst
July, 1895, and at a rate of interest not exceeding 6 p.c.p.a. and 1 p.c.
commission, together with the projier costs of the lenders of and
incident to the sd loan, and which interest, commission and costs are
to constitute a charge upon the sd ppty, and to be pd by the receivers.
Black V. Williams, Vaughan Williams, J,, 15th March, 1895.

Upon tlie application, &c. order tliat F. [the receiver and nuowger'] be at liberty to
borrow, at a rate of interest not exceeding one per cent, above the bank rate, the
sum of 2,000^. for the purposes mentioned in his said affidavit filed the 13th day of
Nov., 1891. And it is ordered that the said sum of 2,000?., when borrowed, be a
charge upon the property and undertaking of the defendant company, in priority
to the issue of 50,OOOZ. First Mortgage Debentures of the defendant company.
English, %c. Trust -v. J. Nitnnelay S, Co., Chitty, J., 23rd November, 1891.

Upon motion, &c. [_07-dcr for sale'], and order that the said M.,thereceiver and manager
appointed by the said order, be at liberty to borrow such further sums of money as
with the sums already borrowed, under the liberty given by that order, will amount
to the sum of 3,000?. in the said order mentioned, and order that the total amount
of such sums borrowed and to be borrowed, and interest on such total amount at
the rate not exceeding 5 per cent, per annum from the respective days on which
such sums have been and such sums shall be borrowed, constitute a first charge upon
the said undertaking, and all the property of the defendant company comprised in
such debentures in priority to the said debentures. Vaughan Williams, J., PeacoeJc
V. Olynipia, Limited, 3rd July, 1896.



Form 475.

Liberty to
receiver and
manager to
borrow and
create firht
charge.



Upon the applicon of the pits, &c., It is ordered that Y., the recr
and manager appointed by the sd order dated the 21st day of Nov.
1890, be at liberty (for the purpose of carrying on the business of the
sd Tivoli, Limited, pursuant to the sd order dated the 26th Jan. 1891)
to raise on mortgage of the assets of tho said coy, and all other the
property and effects included in the debentures issued by the sd coy,
a further sum not exceeding 2,000/. at interest at a rate not exceeding
11. p. c. p. a. from the date of the advance until repayment. And it is
ordered that such money, when raised, and interest be a first charge
upon the assets of the sd coy, and all other the property and effects
included in tho sd debentures subject only to the mortgage of 70,000/.,
and interest at 4 A p. c. p. a. in favour of the defts Charles Hiirter and
Hubert lliirtcr, and to tho mortgage thereon not exceeding 3,000/. and
interest, authorized to bo raised by the sd order dated the 2Cth Jan.



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