Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

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up and sign the subjoined forms of Receipt and Authority ^ vfhea a
cheque or money order payable to your order will be delivered in
accordance with the authority.

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

Note. — ^The receipt or authority shoold in the caae of a fixm be signed in the
firm's name.

Receipt, ig

Received of in this matter the sum of pounds

shillings and pence, being the amount payable to ^ in

respect of the dividend of in the ^ on ^ claim against

this company.

£ . [Payee's Signature.]

«. Authority for Delivery.

Please deliver to. [insert the name of the person who is to
receive the cheque or money order, or the words " ^ by post at ^
risk," if you wish it sent to you in that way] the cheque or money
order for the dividend payable to ^ in this matter.

[Payee's Signature.]
To the [Official Receiver and] Liquidator. Date , 19 — .

As to this notice, see R. 119 of 1903, supra.

As to filing proofs before payment of a dividend, see Rr. 113 to 115of 1903,
Bnpra.



Form 489a. (^*^^ «* •" ^^^ ^0

Authority to To the [Off Recr and Liquidator],
liquidator to j

pay dividends Sir, — ;^ hby authorize and request you to pay to M , of

to another ^^ specimen of whose signature is given below), all dividends as they
Form 72 of ^^ declared in the above-named matter, and which may become due
1903. and payable to ^ in respect of the proof of debt for the sum of /.

against the above-named coy, made [by Mr. ] on -^ behalf.

And ~ further request that the cheque or cheques drawn in respect

of such dividends may be made payable to the order of the sd M ^

whose receipt shall be sufficient authority to you for the issue of such

cheque or cheques in his name.



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CBEDITOBS. ^'^

It is understood that tliis authority is to remain in force until
revoked by -^ in writing.

Signatures .

Witness to the signature of . .

Witness to the signature of . Date .

Specimen of signature of person appointed as above.

Witness to the signature of .

Witness to the signature of person appointed as above.

The above form has been very commonly uaed in winding-up, both when the proving
creditor desires his banker or solicitor, or other agent, to receive the dividends, and
also when he has assigned the debt and the assig^nee is to receive the dividends.
The form is now sanctioned bj (7) of R. 119 of 1903. See note to next form.

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

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

allowed by the chief clerk's said certificates at the sum of /., be

pd to the applicants, the said A. Coy, Limtd, instead of to the said
0. L. ; And it is ordered that the applicants do pay to the sd off liqr
the sum of 2/. 28,, and to the sd 0. L. the sum of 21. 2«., for their
agreed costs occasioned by and incident to this applicon. Oriental
Bank Corporation, Chitty, J., 10th May, 1886.

A creditor's claim against a company is a chose in action, and is assignable.
Milan Tramwaya Cq,^ 25 C. D. 571. If the assignment is made before proof the
assignee can prove in his own name, whether the assignment is one to which
sect. 25 (b) of the Judicature Act, 1873, applies, or is only an equitable assignment.
^ parte CoV>ome and Strawbridge, 1 1 Eq. 478. And notice to the liquidator perfects
the assignment as against subsequent assig^nees. Wragg^t ease^ 5 Eq. 284. Where
an assignment is made after proof the assignee can take a revocable authority, as
in Form 439a, or he can obtain an order as in Form 440, above. Large numbers of
such orders were made by Chitty, J., in The Oriental Bank Corporation, and by
Pearson, J., in IT^e West of England Bank, and the orders then made were in accord-
ance with the settled practice in winding-up. It has, however, now been suggested
that these repeated decisions should be disregarded, because it has been held that
in bankruptcy the assignee of a creditor who has proved is not entitled to such an
order. Be Frost, (1899) 2 Q. B. 50. In that case creditors whose proofs had been
admitted by the trustee in bankruptcy assigned their debts to the bankrupt's \N-ife,
and she obtained from the County Court registrar an order under sect. 63 of the
Bankruptcy Act, 1883, for the trustee to pay to her the dividends on the assigned
debts. On appeal to a Divisional Court this order was set aside. Wright, J., said :
** The whole framework and intention of the Act and Rules is, that payment of
dividends in the bankruptcy shall be made to the persons ascertained to be creditors
in and by the bankruptcy proceeding^, and the Board of Trade [the trustee was the
official receiver] is not to be called upon to recognise any persons except those who



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488



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



are bo aeoertained. . . . The true view seems to me to be that the aas^niee, in a
case like the present, should be allowed to prove, and to have his proof substituted
for that of the assignor. ... I think it lies upon him to take that step unless he
can get the assignor to sign an authority to the trustee to pay." Bigham, J., said
the assigfnee was not entitled to recover the dividends **bj requiring the official
receiver to make out cheques for those dividends in her favour. ... I think the
case is entirely governed by sect. 58, sub-sect. I [of the Bankruptcy Act, 1883],
which points out how dividends are to be distributed, namely, * amongst the oreditOTS
who have proved their debts.' '*

But sect. 68 of the Bankruptcy Act, 1883, is not, by sect. 10 of the Jodioatnre
Act, 1873, or otherwise, made applicable in winding-up, and the Winding-up Acts
and Itules do not contain any provision in similar terms, and the decision in Re
Frost cannot overrule the settled practice in winding-up as established by repeated
orders.

A charging order on dividends in hankruptey cannot be made in respect of the
costs of the solicitor of a judgment creditor of the bankrupt. Be Cook, Ex parte
Orippt, (1899) 1 Q. B. 863.



Order to pay
dividend to
chargee.



Form 440a. Upon the applioon of N., &c., Order that the off recr and liqr do pay
to the applicant, the sd N., out of the assets of the above-named ooy,

the sum of /., being part of the dividend of 7«. 6(f. in the £

declared on the amount of the debt of the sd C. in respect of the
amount due to the applicant under a charge executed iji his favour by
the sd C. upon the debt of the sd C. And [order on off recr to pay cogts].
Royal Trusts Assets^ Sfc. Corporation^ 1892, R. 0149. Eeg., 7 Dec. 1893.

See note to Form 439a.



{Address^ date, and title,)

Form 441. I am desired by the off recr in cos liquidation to inform you that
notice has been reed that you have, by a written instrument dated

, charged or assigned all your interest in the principal sxmi of

1. due to you in the above-named matter to . This assign-



Notice of in-
tention to pay
dividend to
assigfnee of
debt.



ment is registered subject to the payment already made of a

dividend of in the £, amoimting to /. on the admitted daim

of /. I hby 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-mentd debt to .

I am, your obedient Servant,



Form 442.

Notice to
persons claim-
ing to be
creditors of
inteDtioD to
declare final
dividend.
Form 70 of
1903.



Take notice that a final dividend is intended to be declared in the
above matter, and that if you do not establish your claim to the satis-
faction of the Ct on or before the day of , 19 — , or such

later day as the Gt may fix, your claim will be expunged, and I shall
proceed to make a final dividend without regard to such claim.

Dated this day of , 19 — .

G. H., Liqr.

To X. Y. [address'].



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CREDITOKS. 489

Upon the applicon of [off] 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 Ordtr to pay
names are set out in the first schedule to the chief clerk's certificate, dividend.
dated 2lBt July, 1879, a dividend of 2s. 6d. in the £ on the amount
of their respive 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 respive 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 said association are unpedd, until the sd
B., &o, shall resply have pd the calls by the sd orders of the 17th Jime,
1880, and 8th March, 1880, ordered to be pd by them. Trust Asso-
ciation, M. E., 27th May, 1880. B. 983.

A oontribntory who is a creditor is entitled to receive dividends on bis debt
pari ptutu witb tbe other creditors, provided he doly pays any calls actually made.
GrisselTi ease, 1 Ch. 628.



Upon the applicon of W., the liqr, and upon hearing counsel for Form 444.
the liqr and for B. and C, the pits in an action of, &c., Order that, Liberty^to
notwithstanding the claim of the pits in the sd action against the coy, pay dividend,
the liqr be at liberty to declare and pay a first dividend not exceeding J^rv^for
8«. in the £ upon the debts and claims against the coy which disputed
have been allowed by him at the date of this order, amounting to ^ ™*'
67,921/. 16«. 9d, : 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 /. in respect of the claim of the sd B. ; liqr to be at liberty to

retain his costs out of assets ; costs of B. and pits to be reserved until
further order. Hopkins, Gilkes Sf Co,, M. E., 10th Dec. 1879. A.
2415.

Preferential Debts.

Upon the applicon of T. and C, the prov oQ liqrs of the above- Form 445.
named bank, and upon hearing the solors for the applicants and for Order to pay
the sd bank and for her Majesty's Postmaster-General, and upon dividend,
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 authorised agents the sum of 369/. 15«., such sum having been in
the hands or control of the sd 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 : —

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.



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490 WINDING-UP BY THE COVRT. [ChAP. XXXVII.

200/., being for three bills of the sd bank for 120/., 50/., and 30/.
resply, held by her Majesty's Postmaster-General when
the sd bank stopped payment.
69/. I5s., other moneys of her Majesty.

And order that the costs of the sd prov liqrs and of the sd bcuik of
this applicon and incident thereto be costs in the winding-up. West
of England, 8fc. Bank, Malins, V.-C, 20th Dec. 1878. B. 2118.

For order directing payment to her Majesty of County Court moneys deposited in
same bank, see ihid.



Form 446.

Liberty to
pay rates.



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 order in these matters, dated 7th July, 1877, Order that the sd liqr
be at liberty, out of the assets of the sd coy, to pay to the overseers of
Darlington the sum of 212/. Is, 2^{/., being the amoimt of the poor
rate made and allowed on the 1st of May, 1877, in respect of the coy's
premises (retained in beneficial occupation of the liqr), and that the sd
liqr be allowed the same in his accoxmts of receipts and payments.
And order that the sd liqr pay the sum of 2/. 2«. to L., the solors of
the sd overseers of D., being the amount of their ascertained costs
of this applicon. South Durham Iron Co., Hall, V.-C, 3rd August,
1877. B. 1476. See similar order by Pearson, J., in Bernard v.
Jocelyny and Newmarket Co., 18th Dec. 1883. A. 1973. See note to
Form 392c, supra.



SECfUKED CrEDITOBS.
See supra^ pp. 441, 444.
For affidavit of proof by secured oreditors, see Form 413.



Form 447.

Order allow-
ing amend-
ment of proof
of secured
creditor.



Upon motion this day made unto this Ot by counsel for the H. Bank,

whose registered office is in , and upon hearing counsel for 8., the

off recr and liqr of the above coy, Henry Lister and Son, Limtd, and
upon reading an order dated, &c., two affts, &c.. This Court doth order
that the applicants be at liberty to amend the proof of the debt put in
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



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CREDITORS. 491

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 as to
given by the sd coy, and when, and to whom, and for what amounts, what secu-
and how much remained due upon each of the sd securities for principal " ^ given*
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
respive rights of the secured creditors to be found and certified as afsd.
HamUton^s Windsor Ironworks Co., Malins, V.-C, 21st Dec., 1878.
A. 2340. See also 27 W. E. 827.



Upon the applicon of D., the [off] liqr, &c., Order that the sd D., Form 449.
out of 3,315/. and other sums of money which may be payable to him OrdeTfor

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

sum of 1,885/., being the amount due to them for principal, and secured
by a certain indenture, &c., together with 126/. 2s, 4d, the amount of
interest thereon at 5 p.c.p.a. to 15th May, 1878; and also the sum
of 10/. I9s. Sd. for goods supplied by them to the sd coy; and 1/. 16«.
for insurance of the premises belonging to the sd coy, together with
the sum of 27/. 6s, 10(/., 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 incumbrancers']. 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 1 10/. in full satisfaction of their costs, charges, and expenses
against the sd coy, amounting to the sum of 189/. 6s. Sd. And order

that the sd Messrs. and forthwith cause satisfaction

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



Upon the applicon of the liqr, and upon hearing the solors for the Form 460.
applicant and for F. M., the creditor's representative, appointed by liberty to
order dated, &c., and for W. and S., the mortgagees of the coy's stock, P*y ^^ mort-
and upon reading, &c., Order that the liqr be at liberty to pay to the ^^^^ of

sale.



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492 WINDING-UP BY THE CX)UBT. [ChAP. XXXVU.

said S,, out of the proceeds of the property in mortgage to him, the sum
of 4,326/. Ss, due to him for principal, interest and commission, upon
mortgage dated, &c., given by the sd coj to the sd 8. And order that
the liqr pay to the sd 8. the sum of 48/. I4s., at which the costs of the
sd 8. have been agreed, such costs including the costs of this applioon.
Japanese Curtains Co,, Malins, V.-C, 20th May, 1878.



Form 461. Upon the applicon of M., of, &c., and upon reading an afft of the
Order for ^ ^'^ filed, &c., and upon heariog coimsel for the applicant, and for

rele«8e<^ the sd off liqr. And the applicant by his counsel imdertakiDg with

redemptum to *^® ®^ ^^^ ^ P^^ *^® ^®^ ^^ ^^ ^^ ^^^ ^^ *^^® applioon, and of such

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

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

Bolors, And the sd off liqr by his counsel undertaking to execute such
release or conveyance, and releases or conveyances as cure 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 Ot doth
order that the sd off liqr do execute to the applicant, or as he may
direct, a proper release 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., 1871, in the sd
first-mentd afft of the sd M. mentd, And also a proper release and
conveyance of the right, title, interest and equity of redemption of the
coy, of and in all and singular the lands and properties comprised in
the 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 perusal
and approval to the sd off liqr, and to be resply settled by this
Honourable Ot 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,, 8tirling, J., 21st July, 1892.
A. 1045.



Form 461a. Upon the applicon by summons, dated, &c., of B., the off recr and
Lbertvto ^V ^^ ^® above-named coy, and upon hearing, &c., and upon reading,
distribute &c., Order that the sd B. be at liberty to distribute the 2,000 shares of
**^** '"oniTBt ^^* ®^^^ ^^ ^® ®' ^^y amongst the creditors of the above-named coy,
creditors. in proportion to the amount of their debts. Asia, Limtd, 002 of 1896,
Hope, Eeg., July 12, 1898.



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CREDITOR?.



493



Upon the applicon bj originating summons, dated 24th July, 1891, Form 451b.
of the pits the Bank of Africa for an order to have an account taken Order enforc-
of what is due to the pits for principal, interest, and costs under and ing charging
by virtue of a charge created by an order, dated the 23rd Jan., 1891, i^ Queen's
and made in an action in the Queen's Bench Division of the High Ct ^ph
of Justice of The Bank of Africa, Limtd. v. Claude Theodore James ^^^^'
Vautin (sued as Claude Vautin), 1890, B. 4945, by which the deft's
interest in 5,212 shares of 1/. each in the N. Coy, Limtd, was charged
with the payment of a judgment debt of 1,570/. Is. Sd, 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 dft, 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 appear-
u^g by such afft that there is now due and owing to the pit bank
1,570/. Is, Sd, with interest thereon at the rate of 4/. p.c.p.a. 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 pita out of Ct, and that
the proceeds of such sale be pd into Ct to the credit of this action.
Bank of Africa, Limtd, v. Fauiin, North, J., 6th Aug., 1891. A. 1203.

A charging order must be enforced in a separate action commenced by writ or
originatdng eummonfl. Zeffpott v. Western, 12 Q. B. D. 287 ; Riek$tU v. 22., W. N.
(1891) 29 ; R. 8. 0. Ord. LV. r. 6a.



Preferential Debts.

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

l.~(l) In the distribation of the property of a bankrupt, and in the distribution
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) AU parochial or other local rates due from the bankrupt or the company at

the date of the reoeiviug 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 aU assessed taxes, land tax, property or
income tax assessed on the bankrupt or the company up to the 6th 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 ; [Poor rate and highway and general district rates
are included. Re Hey wood, (1897) 2 Ch. 693. As to water rate payable
according to meter, see Mannesmann Ttdbe Co., (1901) 2 Gh. 93.]

(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 oraer, or as the case may be, the commencement of the winding-
up, not exceeding fifty pounds ; [wages are within the Act, although not
fixed, but depending on results. EarWs Shipbuildingy fc. Co., W, N.
(1901) 78. A managing director is not a clerk or servant. Newspaper Fro'
prUtary Syndicate, (1900) 2 Ch. 349] ; and



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494 WINDING-UP BY THE COUET. [ChAP. XXXVII.

(o) All wages of any labourer or workmaD, not exceeding twenty-five pounds,
whe&er payable for time or for piece-work, in respect of sendoee rendered
to the banloTupt or the company during two months before the date of the
reoeiying 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, proportionate to the time of service up to the date of the receiving
order or, as tne case may be, the commencement of the winding-up.

(2) The f oregfoing 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,
insufficient to meet them, in which case they shall abate in equal proportiana
between themselves.

(3) Subject to the retention of sucb sums as may be necessary for the oosta of
administration or otherwise, the foregoing debts shall be discharged forthwith so far
as the property 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 eifects 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 gfiven 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 right of priority as the person to whom such
payment is made.

(5) This section, so far as it relates to tbe property of a bankrupt, shall have
effect as part of section forty of the Bankruptcy Act, 1883.

(6) See Appendix.

But a modifying Act intituled the Preferential Payments in Bankruptcy Amend-



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 64 of 152)