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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DEBENTURES AND DEBENTURE STOCK. 431

1891. Barret fs Breivery, ^'c. Co. v. The TivoU, Limited, Chitty, J., at
Chambers, 26th March, 1891. A. 418.

For forms of liberty to receiver to issue certificates or debentures in respect of
money raised, see Part I., pp. 897, 898.

Upon the appHcon of the pit, and upon hearing the solors for the Form. 476.

applicant and the defts, B. and 11., and for the liqr of the deft coy. Liberty to

and upon reading, &c.. It is ordered that B. and H., the recrs and receiver and

managers appointed in this action, be at liberty to pay off or take a ™ ^ g^.^^

transfer of the mortgages for 6,000^., held by , full particulars of mortgage,

which are set out in the third part of the first schedule to the trust n° ,,° , °^^°""''

'- lur tnat pur-

deed of the 25th March, 1891, mentd in the judgment of the 23rd Jan. pose.

1892, and for that purpose, if necessary, to borrow any sums of money,
not exceeding 6,000/., at interest ; And it is ordered that the principal
moneys so borrowed and interest be charged upon the whole under-
taking, property, and assets of the deft coy, comprised in the security
created by the debentures and trust deed in the sd judgment mentd,
and be a first charge (subject to the mortgage of M.) upon the assets
of the deft coy; And it is ordered that the sd B. and H., as such
recrs and managers, be at liberty to execute a proper instrument or
instruments for perfecting such change ; And it is ordered that the
costs of this applicon, and of carrying out the sd loan, be paid out of
the assets of the deft coy. liutton v. Southampton Naval Works,
Kekewich, J., at Chambers, 28th April, 1892. A. 700.



Upon the applicon of the pits, &c., order that the sd B., as such recr Form 476a.
and manager, be at liberty to carry on the said business for eight weeks Appointment
as from the 30th day of Nov. 1891, and that the sd recr and manager be of receiver, to
at liberty, out of the cash in his hands, to pay out the distress put in by jji_^Qao-er for
the landlord of the coy upon the coy's premises at Maidstone, and eight weeks,
that the sd recr and manager be also at liberty to pay the wages and ^' }. ^^ J^j,
travellers' commission now overdue or to become due during the sd &c.
period of eight weeks. Game, Harrison and Lamer v. LIop Tea Co.,
Kekewich, J. (for North, J.), 4th Dec. 1891. A. 1679.



Upon the applicon of the pit, and upon hearing counsel for the Form 477.
applicant, and the solors for the defts and for the debenture holders Lib^^rtv~to
of the above coy other than the pit, and upon reading, &c., and all receiver to go
the debenture holders of the defendant coy by their solors consenting, ooie^d^in
It is ordered that the recr appointed in this action be at liberty to
proceed to Constantinople, in the Empire of Turkey, with a view to

effecting a sale of the shares in the Co., held by the deft company,

and of entering into a conditional contract for that purpose. And it is



432



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



ordered tlicat the said reor do look after the property of the deft coy,
situate at Constantinople afsd, and report to the judge what should be
done herewith. Johns v. Imperial Ottoman Ice Co.^ Stirling, J., in
Chambers, 3rd Aug. 1891. A. 1203.

For forms of certificate of sale by tender and approval of conditional contract for
sale, see Part I., p. 895.



Form 478.

Liberty to
receiver to
compromise
claim.s with
vendor
abroad.



Upon the applicon of the pltf, and upon hearing counsel for the
applicant and the solicitors for the defts, and upon reading, &c., and
the deft coy by their solors consenting to this order, and the other
defts not objecting, It is ordered that W., the recr appointed by order
of 2nd March, 1892, be at liberty, by his agents in Batavia, to propose
to compromise (and, if accepted, to carry into effect such proposal) the
action now pending against the coy in the Batavian Courts at the suit
of A., upon the terms of relieving the sd A. and his co-vendors, either
wholly or in part, from the guarantee contained in the original
agreement for sale of the 18th July, 1890 (and referred to in the
prospectus of the coy), that the tobacco crop upon the coy's tobacco
estates in Sumatra, for the year 1890, should realize a net profit (after
paying all expenses of planting, cultivation, cutting, and shipment
to Europe, and all other expenses in connection therewith, except the
coy's expenses of administration in London) of at least 13,500^. ;
and in the event of such compromise being effected, It is ordered that
the deft coy deliver up to the vendors or their nominees all the shares
which have been allotted to the vendors or their nominees, and which
have been retained by the coy as security for the sd guarantee, or
the whole of such shares less such number as, under the terms of any
such compromise, it shall be agreed that the coy may retain as security
for the performance of such guarantee in part. And it is ordered that
the costs of this applicon be costs in the action. Heritage v. Delhi
Bedazei, Sfc, Limtd, Chitty, J., at Chambers, 22nd June, 1892. A. 914.



Form 479.

Liberty to



&c



Upon the applicon of the deft coy, and upon hearing the solors for
the applicants and for the pltf and for the remaining deft, and upon
^romote^bill reading, &c., It is ordered that the deft be at liberty to proceed with
in parliament, the bill before the present session of Parliament intituled, "A Bill
to confer further powers upon the Milford Docks Coy and for other
purposes," and that B., the recr appointed by order dated 9th Feb.
1 892, bo at liberty to pay all proper costs, charges, and expenses in
connection therewith, and be allowed same in his account. And it is
ordered that the deft coy be at liberty to issue to the London Trust
Coy Lmtd, debenture stock "A" for 150^., interest due to that coy on
the Ist July, 1891, and a certificate of indebtedness of the deft com-
pany in respect of tho subsequent interest. And it is ordered that the



DEBENTURES AND DEBENTURE STOCK. 433

deft coy be at liberty to issue to holders of debenture stock "A" on
the Ist of July, 1891, who may accept the offer contained in the
circular letters dated the 1st and 20th July, 1891, like debenture stock
in respect of the several amounts of interest due to them. Sheppard v.
Milford Docks Co. (1891, S. No. 3022), Stirling, J., at Chambers, 21st
March, 1892.

Compare Buchham v. Trustees of Whitehaven, 55 L. T. C94.



Upon the applicon of the liqr, &c.. It is ordered that the liqr and Form 479 a.
the recr and manager appointed in th^ above-mentd action be at Liberty to
liberty to intervene in the liquidation proceedings of the above-named liquidator and

•^ ^ *■ *^ rcccivGr to

coy now pending in the High Ct of Griqualand, South Africa, and to intervene
apply to that Ct that the sale of the ppty of the above-named coy may in liquidation
be stayed provisionally pending the reconstruction of the coy, and for abroad. °
this purpose to instruct agents in Kimberley, the expenditure for the

afsd purposes not to exceed 1, without the leave of the Ct.

Liberty to apply. No)-ih Eastern Bultfontein (00246 of 1893), and
Posno V. Lawson (1893, P. 2089), Eeg. 14th Nov. 1893.



Upon the applicon of pits, d'c, order that E., the recr appointed in Form 479b.
this action, be at liberty to take such proceedings as he may be advised Liberty to
in an action now pending in France, before the Civil Tribunal of the take proceed-
Seine, wherein a certain coy called, &c. is pit, and the Latigue Coy is j^ance.
dft. Laio Guarantee^ ^'c. v. Latiyue, ^c. Coy and others, Cave, J., 13th
Oct., 1896.



Upon the applicon, &c. of the dfts N. and S., trustees for the first Form 479c.
mortgage debenture holders of the dft coy, and upon hearing, &c.. Liberty to
order that the applicants be at liberty to appeal against the judgment trustees to
of the Civil Tribunal of the Seine, Paris, in the actions instituted by H.,
referred to in the sd order, dated the 20th Jan., 1896, and that they be
indemnified against any costs, charges, and expenses incurred by them
in connection with such appeal out of any moneys arising from the
realization of the security comprised in the trust deed or in the hands
of P., the recr in this action, or which may be pd into Ct by him, and
order that the funds in Ct be dealt with as directed in the payment
schedule hereto ; the sum of 150^. to be pd to the applicants, being for
the purpose of prosecuting the sd appeal and for paying the further
bill of costs of H., the legal adviser in Prance of the applicants. The
payment schedule provided — " Sell sufficient new consols to raise 150?.
cash, pay proceeds to N. and S. dfts." Wilson v. Martmy, Limtd,
Vaughan AVilliams, J., 2nd July, 1896.

p. F F



434



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



Form 479d.

Liberty to
tinsecured
creditors to
defend deben-
ture actions.



Upon applicon of H. & Co., unsecured creditors of the above-named
coy, &c., order that upon the applicants indemnifying W., the liqr of
the dft coy, against all costs to be incurred by him or •which he may
become liable to pay by reason of this action being defended in the
name of the sd coy, the amount and the form of such indemnity to be
settled by the judge or by the Registrar Cos (Winding-up) in case the
parties differ, the future conduct of the defence in this action, on behalf
of the dft coy, be committed to the sd H. & Co., and order that appli-
cants have ten days from the date of this order within which to deliver
the statement of defence of dft coy, and order that applicants pay to
the dfts, the coy, their costs of this applicon, such costs to be taxed,
and order that appKcants be at liberty to apply to be recouped the
amount they shall pay out of the assets the subject-matter of this
action, and the costs of pit and of the dfts B. and B. of this applicon
are to be their costs in this action. Waiies, on behalf, §'c. v. Hemp
Yarn, ^'c. Co., Vaughan Williams, J., 7th May, 1896.



Form 480.

Liberty to
liquidator to
execute power
of attorney
to collect
arrears of
calls abroad
and manage
property.



\Intitided in Debenture Holder'' s Action and i?i ike Winding-up.~\

Upon the applicon of A., the liqr of the deft coy, and upon hearing the
solors for the applicant and for the pltf, and upon reading the order
dated the 11th Aug. 1890, and an afft, &c.. It is ordered that the
applicant A., as liqr of the deft coy, be at liberty to execute in favour*
of S. a full power or powers of attorney for the management and
realization of the property of the deft coy in the colony of Fiji or
elsewhere in Australasia, including full powers to collect arrears of
calls, and all calls now or hereafter to be made on contributories residing
in Australasia, and to compromise all present and future liability of
such persons as contributories, and with the further power generally
to assume the management of the deft coy's property in Fiji. Black
V. Mortgage Sf Agency Co. of Australasia, and In re Same Co., Vac.
Judge at Chambers, 6th Oct. 1891.



Form 481.

Liberty for
trustees for
debenture -
holders to ap-
point agents
to complete
railway
abroad, and
send them
money.



Upon the applicon of the pltf, and upon hearing the solors for the
applicant and for the defts, and upon reading, &c.. It is ordered that
the defts, W., H., and I., be at liberty to appoint D. and L., the
members of the local board of directors of the deft coy at Buenos
Ayres in the Argentine Republic, as agents of the said defts, to com-
plete the railway and works in accordance with the provisions of the
deed dated 23rd May, 1889, mentioned in the indorsement on the writ,
and that tlio sd defts bo at liberty to remit to such agents, out of the
moneys in tlioir liands, a sum not exceeding 7,000/. for the purpose of
being expended by and under their direction in or towards completing
the said works. Coppinger v. Santa Fc, Sfc. Co., 1891. C. 3802.
Chitty, J., at Chambers, 7th Nov. 1891,



DEBENTURES AND DEBENTURE STOCK. 435

Upon the applicon of the pltf, and upon hearing the solors for the Form 482.
applicant and for the defts, and upon reading, &c., It is ordered that Liberty for
the defts, W., H., and I., be at liberty (notwithstanding that D. and trustees for
L. have not given security as directed by the sd order dated the 5th holders to
March, 1892) out of the moneys in their hands as trustees to remit to make various
the sd D. and L., any sum or sums not exceeding in the whole the sum consignments.
of 3,000/,, to be appHed by them in or towards all or any of the pur-
poses mentd in the sd order dated the 5th March, 1892, and that the
sd defts be at liberty to remit to the sd D. and L. the further sum of
800/. to be expended by them in paying the duty payable on the
registration of the mortgage to secure the First Debenture Stock
of the deft coy on the further lands acquired by the deft coy.
And it is ordered that C, the recr and manager, be at liberty to
give the necessary orders for stores, consisting of duplicate parts of
engines, carriages, and wagons required for working the railway, at a
cost not exceeding 3,200/., including the engineer's fee for inspection
and the cost of shipment to the Argentine EepubHc, and also to order
coal for use on the railway at a cost, including the shipment thof to
the Argentine Republic, of 1,200/., and to consign such material and
coal to the sd D. & L., and to pay sundry small accounts of the coy
amounting together to 177/. 9s. 7M. And it is ordered that the sd
defts be at liberty, out of the moneys in their hands as trustees, to pay
to the said recr and manager the said sum of 177/. 9s. 7Af/. and such
amounts as he may require for the purchase and shipment of the sd
materials and coal and expenses connected therewith, not exceeding the
sums of 3,200/. and 1,200/. above mentd. Coppinger v. Sa7ita Fe, ^c.
Co., Chitty, J., at Chambers, 28th July, 1892. A. 1321.

For an order giving receiver and manager leave to draw cheques for work-
men &c., see Strapp v. Joseph Bull, Sons ^- Co., 1892, S. 1720 ; Reg., 14th Dec.
1892.



Upon the applicon of the pits, and upon hearing, &e., and upon Form 483.

reading, &c., It is ordered that, notwithstanding the orders of the 21st 777

Nov. 1890, and 26th Jan. 1891, Y., the recr and manager of the busi- receiver and

ness of the Tivoli, Limited, appointed by the sd order dated the 21st manager to

close DllSl-

day of Nov. 1890, be at liberty to close the Tivoli, Limited, and the nesses of

businesses thereof, or any of them, at such times as he may, in his company,
absolute discretion, think fit. Barrett^s Brewery, ^-c. Co. v. The
Tivoli, Ld, Chitty, J., at Chambers, 8th April, 1891. A. 413.



Upon the applicon of the pits, and upon hearing, &c., and upon Form 484.

reading, &c.. It is ordered that F., the recr and manager appointed in :, .,

this action, be at Uberty to give up possession or otherwise dispose of close public
the following properties now held by the above-named defendants, ^o^^^^-

F F 2



436



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



J. Nunneley and Company, the trade in which is being carried on at a
loss, viz. : —

1. "The Little Wonder," situate, &c.

2. "The Castle and Falcon," situate at, &c.

3. "The Nottingham Arms," situate at, &c.

4. Maltings, situate at, &c. ; and

5. Stores, at, &e.

And the costs of this applicon are to be costs in this action. Etiglish,
Sfc, Investment Trust v. /. Nunneley 8j- Co. (1891), E. 1253, Chitty, J.,
at Chambers, 23rd Nov. 1891.

For orders giving liberty to send telegrams, surrender lease, &c., see Part I.,
p. 899.



Form 485-6.

Summons for
call.



\_Intituled in Winding-up and in the Action.']

Let A. B. of, &c. the [off recr and] liqr of the above-named coy, and
the deft X. attend, &c. \_see Form 10], on the hearing of an application
of the pltfi C. of, &c., for an order that the sd [off recr and] liqr, upon
being indemnified in such manner as the Com-t shall direct, shall take
such proceedings as may be necessary to call up any uncalled capital
on the shares held by the contributories resply of the sd coy. And
that W., the receiver in the above action, shall be at liberty, in the
name of the sd coy, to bring such actions or take such other proceed-
ings as may be necessary for getting in such call and any other moneys
due and remaining unpaid in respect of shares held by the contribu-
tories resply of the sd coy.



Order 5.
Make calls



Form 487. Upon motion made this day, &c., His honour being of opinion that the
S. Building Society have under the mortgage by the sd coy to the sd F.
and M., the trustees of the sd Society, dated the 3rd day of Nov. 1874, a
first charge on the unpaid capital of the sd coy, and on the proceeds of
all future calls made and to be made on the shares in the sd coy, doth
order that the liqrs of the sd coy do get in the sd unpaid capital under
the direction of the judge, and do place the same and the proceeds of
all future calls to be made on the shares in the sd coy to a separate
account to be entitled "Calls in respect of unpaid capital," and the
sd unpaid capital and the proceeds of any future calls are not to be
dealt with by the sd liqr without notice to the applicants. And it is
ordered that the applicants bo at liberty to add their costs of this
applicon, and of the summons taken out by them in this matter on the
15th day of July, 1875, to their afsd mortgage secui-ity, and that the
costs of the sd liqrs of this applicon and of the sd summons be costs in
the winding-up of the sd coy. Phoenix Bessemer Steel Co.., M. R., 3l8t
July, 1875 J B. 1G55; 44 L. J. Ch. 683.



DEBENTURES ANi:) DEBENTURE STOCK. 437

\_Intituled in the Action and in the Wi^uling-up.'] Form 488.

Upon the applicon of tho pit in the above action by summons, dated, Xnother^
&c., whicli, upon hearing counsel for the applicant and tho solors for
the deft B. and for the oif recr and liqr of tho above-named coy in
Chambers, was adjourned to be heard in Ct, and coming on accord-
ingly, &c. ; And upon hearing counsel for the applicant, for tho deft
B., and for the off recr and liqr of the sd coy, and upon reading, &c.,
It is ordered that upon the off recr and liqr of the above-named coy
being properly indemnified (such indemnity to be settled in the
Chambers of the Registrar in Cos "Winding-up in case the parties
differ) against all costs, charges, and expenses which the off recr and
liqr may be put to or may become liable to j)ay in respect of the pro-
ceedings in the winding-up, and in respect of such actions or other
proceedings as are hnfter referred to, the off recr and liqr of the sd
coy do take such proceedings as may be necessary to call up
any uncalled capital on the shares held by the contributories resply of
the sd coy; And it is ordered that W., the recr in the above action,
be at liberty, in the name of the sd coy, to bring such actions or take
such other proceedings as may be necessary (except in respect of the
shares in the sd coy held by the pit and the deft B.) for getting in such
call and any other moneys due and remaining unpaid in respect of
shares held by the contributories resply of the sd coy ; And it is
ordered that the amoimts due and to become due from the pit and the
deft B. in respect of the shares held by them resply in the sd coy be
set off against the amounts due to them resply in respect of the deben-
tures held by them in the sd coy ; And it is ordered that the applicant,
the pit P., do pay to^the off recr and liqr his costs of this applicon, such
costs to be taxed, but in such taxation the off recr and liqr is to be
allowed no costs of his sd afft, filed, &c. ; And it is ordered that the
costs of the pit and of the deft B. (including in the costs of the pit the
amount hnbefore directed to be paid by him to the off recr and liqr in
respect of his costs of this applicon) be their costs in this action.
FoiolerY. Broad's Patent, Sj-c. Co. (1891), F. 1833 ; In re Broad's Patent
Co., Vaughan Williams, J., 26th Jan. 1893.

As a general rule, another person is not to be allowed to sue in the liquidator's
name: Harrison v. St. Etienne Co., W. N. (1893), p. 108.

For order to get in calls when there is no winding-up, see Counsel v. TFashingitoH
Diamond Co., Stirling, J., 21st Dec, 1891. A. 1730. See Form 489, in the 6th ed.
of this work.

Upon the applicon of D. Corporation, Limtd., the trustees for fii'st Form 489.

mortgage debentures of above coy, &c., order that B., the off recr and Order for

liqr of above-named corporation, do pay over to H. as such recr as liquidator to

afsd, all moneys in his hands or to come to his hands from calls or ^p^enture

otherwise, and forming part of the assets of the above coy, subject to holders' re-
ceiver.



438



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



Form 490.

Eeceiver in
action to give
up possession
to receiver of
first mort-
gagee.



tlie payment thereout to the sd B. as such off recr and Hqr of all his
fees, costs, charges, and expenses incurred by him in the realization
of the assets above referred to. Such costs to be taxed, &c. In
■winding-up of General Phosphate Corporation, Limtd., Vaughan
Williams, J., 13th May, 1896.

Uj)on the applicon of H., of &c. [_^rst mortgagee^, and upon hearing
the solors for the applicant, and for W., the liqr, recr and manager of
the deft coy, and for the pits, and upon reading, &c., It is ordered that
the sd W., as such liqr, recr, and manager, do forthwith deliver up

possession of the messuages and premises, No. — , Lane, in the

City of London, to Gr., of, &c., the recr of the sd ppty appointed by the
applicant as first mortgagee thof. Hicks v. Billiter Street Offices
Co., and In re Same Co., North, J., at Chambers, 18th June, 1892.
A. 900.

See Found, Son and Sutchins, 42 C. D. 402, that the Court will make such order.



Form 491.

Order for
receiver to
hand over
articles to
third party,
who claims
same.



Upon the applicon of the pit by summons, dated, &o., and upon
hearing the solor for the applicant, counsel for C, in the summons
named, and the solors for the defts by their liqr, and upon reading, &:c..
It is ordered that B., the receiver appointed by the sd order, dated the
7th Nov. 1891, do hand over to the sd C. the several articles set forth
in the schedule to her sd af£t, filed the 10th Dec. 1891. And it is
ordered that the costs of the recr of and incidental to this applicon be
allowed to him in his accounts. Robson v. Cattell 8f Co., Chitty, J., at
Chambers, 19th Jan. 1892. B. 211.



Form 491a.

Order for
liquidator to
pay moneys
to credit of
action without
prejudice to
his remunera-
tion, &c.



Upon the appKcon of F., the liqr of coy, &c. Order that all sums
of money which shall be collected by the sd F. as such liqr, being
assets of the above-named coy charged to the debenture holders, when
they aggregate 200/. be pd by him into Ct to the credit of the above
action — '■'■ Akers v. Veuve-Monier, Src, (1895) A. No. 11, liqr's receipts"
— and order that as an additional indemnity to the sd F. all sums got
in by him pd into such account shall stand charged with the payment
of all costs, charges, and expenses, including his remuneration, which
he may incur or become liable to pay or earn in the realization of the
assets of the sd coy, on behalf of the sd receiver in this action, in
priority to the sd receiver and the sd debenture holders. Akers on
hehulj'w. Veuve-Monier, ^'c, Vaughan Williams, J., 27th Feb., 1896. _



Form 491b. Upon applicon by summons dated, &c., of the pit, and of II., the
T ., . . receiver appointed in this action, &c., order that B., the auctioneer

auctioneer to appointed to sell the ppty comprised in the security created by the first



DEBENTURES AND DEBENTURE STOCK. 4^9

mortgage debenture asset of the dft coy, be at liberty out of tlie '"'IP^y ^^Pf*
proceeds of the sale of the sd ppty, other than proceeds of lease- pay rates, &c.
holds, to pay to H. B. T. & Co. the sum of 108/., being the amount

advanced by them to the sd receiver on the , to pay rates due

from the dft coy, and also the sum of L, being the amount

advanced by them to the sd receiver on the day of , to pay

rent and expenses of distress on the dft coy's premises, together with
interest on the sd two sums at the rate of 5 p.c.p.a. fi-om the respive



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