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Frederick Prideaux.

Prideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) online

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NOW THIS INDENTUEE WITNESSETH as follows:—

1. In consideration of the release hereinafter contained the
Debtor and the Surety hereby jointly and severally covenant with
the Creditors and with each of them to pay to them resj)ectively
a sum equal to five shillings in the jjomid on their respective

debts on the day of next, and a further sum of money

equal to five shillings in the pound on their respective debts on

the day of next [or to deliver to them respectively the

joint and several promissory notes of the Debtor and the Surety
for the payment to each creditor of a sum of money equal to five
shillings in the pound on the debt owang to that creditor, on

the day of next, and of a further sum of money equal

to five shillings in the pound on the same debt on the day

of next].

2 AND 3. {As in last Precedent.)



In witness, &c.



The Schedule above referred to (as in 2nd
Schedule to Prcc. I.).



No. V.

RELEASE hi/ Creditors on receiving Promissory Notes
for a Composition on their Debts from the Debtor and
a Surety.



Parties



Eecital of
agreement for
composition.



THIS INDENTURE, made the day of , Between the

several j)ersons and firms whose hands and seals are hereunto
subscribed and' affixed (hereinafter called the Creditors), being
creditors of A. B., of, &c. (hereinafter called the Debtor), of the
one part, and the Debtor, of the other part :

Whereas at a meeting lately held of the Creditors it was
agreed that the Creditors should accept a composition of ten
shillings in the pound on their respective debts, payable by two

equal instalments on the — — day of and the day of

, to be secured by the joint and several promissory notes of

the Debtor, and of C. D., of, &c., as his surety ; And it was also



STATUTORY COVENANT FOR COMPOSmON. 1171

agreed that as regards the debt of any creditor secured by any
niortgage or charge upon any property of the Debtor the security
should be valued and such creditor should be entitled to the
composition in respect only of the balance of tlie debt over and
above the value of the security :

And whereas the names of the Creditors, the amounts of their Cieditoia
respective debts, and, in the case of secured debts, the amount sXduie
at which the securities for the same have been valued, are
respectively mentioned in the Schedule hereto :

And whereas in pursuance of the aforesaid agreement the That pi-omis-
Debtor and the said C. I), have delivered to the Creditors respec- Debto^fnd^
tively joint and several promissory notes for the payment to surety have

/ 1 , T 1 e , e „ ' , heen given

tnem on the day of next of sums of money equal to to all the

five shillings in the pound, and on the day of next of

sums of money equal to five shillings more in the pound on
their respective debts, or, in the case of secured debts, on the
balance of those debts respectively after deducting the value of
the securities for the same, as the Creditors hereby respectively
acknowledge :



Creditors.



NOW THIS INDENTUEE WITNESSETH that in considera- wHnessi.g
tion of the delivery to them of the said promissory notes, the ^""'*'
Creditors and each of them hereby respectively release the Creditms'?
Debtor from all debts, claims, and demands whatsoever :

Provided always, that this release shall not prejudice any Release not to
right or remedy which any creditor may have against any person aSSst"''*^'*
other than the Debtor in respect of any debt hereby expressed sureties, &c.
to be released ; and any creditor having a mortgage or charge
on any property of the Debtor shall be entitled to enforce the
same for the amount stated to be the value thereof in the third
column of the Schedule hereto and no more.

In witness. Sec.

The Schedule arove referred to.




74—2



1172



Parties.



Eecital of

bankruptcy

petition

and order

appointing

receiver.



That a com-
f)Osition liaa
teen accepted
and approved
by Court, to
be guaranteed
by a surety.



Joint and
several cove-
nants by
Debtor and
Surety with
trustee to pay
composition.



(precedents) arrangements with creditors.

No. VI.

DEED of Covenant hy a Debtor and his Surety to secure
a Composition of Ten Shillings in the Pound hij
Instalments imrsuant to Section 3 of the Bankruptcy
Act, 1890 (i^).



THIS INDENTUEE, made the



day of



Between



A. B., of, &c. (hereinafter called the Debtor), of the 1st part,
C. D., of, &c. (hereinafter called the Surety), of the 2nd part, and
E. F., of, &c. (hereinafter called the Trustee), of the 3rd part:

Whereas a bankruptcy petition against the Debtor was lately
presented to the High Court of Justice [or the County Court of
], and by an Order of the said Court, made upon such peti-
tion on the • day of , 19 — , the official receiver of the

Court was constituted receiver of the estate of the Debtor :

And whereas a composition in satisfaction of the debts owing
from the Debtor in the terms mentioned in the Schedule hereto
has been duly accepted and ajDproved b}^ the creditors, and has
been sanctioned by the said Court :

And whereas it is one of the terms of the composition that the
payment thereof shall be guaranteed by the Surety, and that the
Trustee shall be the trustee to receive and distribute the same :

NOW THIS INDENTURE WITNESSETH, that in considera-
tion of the premises the Debtor and the Surety hereby jointly
and severally covenant with the Trustee, as such trustee as afore-
said, that the Debtor and Surety, or one of them, will duly pay

[p) This section authorises a majority in number representing three-
fourths in value of all the creditors to accept at a meeting a proposal for
a composition or a scheme of arrangement of the debtor's affairs, and the
composition or scheme, when approved by the Court, is binding on all the
creditors, see Re E. A. B., 1902, 1 K. B. 457 ; 71 L. J. K. B. 356; Re PiUinij,
1903, 2 K. B. 50; 72 L. J. K. B. 392; also Re Ketf, 1905, 2 K B. 666; 74
L. J. K. B. 694.

In the above Precedent it is supposed that the creditors are -willing to
accept the personal securitj' of the debtor and a surety without a cessio
honvrum. If there had been no surety, the resolution of the creditors
embodying the terms of the composition, and the order of the Court
approving it, would have been sufficient, but a separate instrument is
necessary to bind the suretj^; see Ex p. Mirahita (1875), L. E. 20 Eq. 772;
44 L. J. Bk, 119.



STATUTORY COVENANT FOR COMPOSITION. 1173

all money from time to time payable by tbe Debtor according to
tbe terms of the composition mentioned in the Schedule hereto as
and ^Yhen the same respectively shall become payable.
In witness, &c.

The Schedule above referred to.

Terms of Composition.

1. The Debtor is to pay in full and in j)riority to all others Preferential
those debts which are by statute directed to be so paid in the paid first,
distribution of the property of a bankrupt (q).

2. The Debtor is to pay a composition of ten shillings in the a composition
pound on all his debts (other than such preferential debts as to beV^d on
aforesaid) in satisfaction of such debts, by three equal instal- histahuents^^
ments at the times following {State the days on ichieh the instal-
ments are to he paid).

'6. The Debtor is to pay all the costs, charges, and expenses Costs to be

incurred in and about the proceedings in bankruptcy, including D^btoJ.
the costs of and incident to this composition.

4. All debts provable in bankruptcy shall be deemed debts what shall be

„,. .. -, .. deemed debts.

tor the purpose ot this composition, and the composition shall
be jjayable in respect of such amount as would have been so
provable.

6. Nothing herein contained shall j)rejudice any right or Provision as
remedy which any creditor may have against any other person creditors.
than the Debtor, nor prejudice or afiect any mortgage, lien, or
security which any creditor may have on any property or effects
of the Debtor, or of any other person ; but a creditor holding
any such mortgage, lien, or security shall be entitled to receive
the said composition in respect only of the amount of the debts
owing to him after realizing or giving credit for the value of such
mortgage, lien, or security, in like manner as he would have had
to realize or* give credit for the same in order to obtain a dividend
in case of bankruptcy.

6. The composition is to be guaranteed by the Surety. Surety.

7. The Trustee shall be the trustee to receive and distribute Trustee,
the composition.

(</) See note {<■) to p. 1160, sk}). as to preferential payments.



1174



(precedents) powers of attorney.



DIVISION XVIII.

POWERS OF ATTORNEY.



Definition of a
power of
attorney and
its liability to
revocation.



The Conv.
Act, 1881.



The Conv.
Act, 1882.



The Trustee
Act, 1893.



Form of
execution by
attorney.



No. I.

GENERAL Power of Attorney (a).

KNOW ALL MEN BY THESE PRESENTS, that I, A. B., of,
&c., being about to leave England and to reside abroad for some

(o) A power of attorney is an authority given in due form of law hj one
i:)erson to another to act for him. By common law, a power of attorney is
revocable by the grantor at any time, unless given for valuable considera-
tion : WaJnh V. Wltitciimh, 2 Esp. Ca. 565; Smart v. Haudars (184T), 5 C. B
916; 17 L. J. C. V. 2o8 ; and it determines on his death: Watson v. KItkj
(1815), 4 Camp. 272; Wnlkue \\ Coolc, o Esp. 117. The law in this respect
has been modified in favour of piirchasers, trustees, and others b}' the
following statutory 23rovisions.

Under the Conv. Act, 1881, s. 47, no person acting in good faith in
pursuance of a power of attorney is liable for so acting, although unknown
to such person the princijjal has revoked the power, or has died or become a
lunatic or a bankrupt.

Under the Conv. Act, 1882, ss. 8, 9, acts done under a power of attorney
given /(*?• raliiahle consideration, and in the instrument creating the power
expressed to be irrevocable, are valid in favour of purchasers, notwithstand-
ing the death, lunacy, marriage, bankruptcy, or any act of the donor of the
power, and notwithstanding that the purchaser or the donee of the power
has notice of such death, &c. Such a power is as effectual as a conveyance
unless the attorney dies without exercising it. Acts done under any power
of attorney, ivliether (jiven for valuable consideration or not and in the instrument
creating the power expressed to he irrevocable for a specified time not exceedimj one
year from the date thereof, are valid in favour of purchasers, and the power
is irrevocable during that fixed time, notwithstanding the death, marriage,
lunacy, bankruptcy, or any act of the donor of the power, and notwithstand-
i]ig that the purchaser or the donee of the power has notice of such
death, &c.

Under the Trustee Act, 1893, s. 23, a trustee acting or paying money in
good faith under a power of attorney is not liable for such act or i:)ayment,
if the power has been revoked unknown to him by the death or some act
of the donor of the power.

Formerly an attorney was obliged to execute his power in the name of
the principal, and this is still the more correct form to observe, excej^t
where a company is the attorney. However, under the Conv. Act, 1881,
s. 46, an attorney may execute any instrument in and with his own name,
signature, and seal.

Generally, as to a power of attorney, see Wolst. Conv. Acts, 9th ed.



GENERAL POWER OF ATTORNEY. 1175

time do this day of , hereby ai)]ioint C. D., of, Sec, and Appointment

, , , , -, , of attorney.

E. F., of, Szc, and each of them, to be my attorneys and attorney
for the purposes hereinafter mentioned (A), (that is to say) : —

1. To receive the rents and profits of and manage all the To manage
messuages, farms, lands, and hereditaments of whatever tenure
and of any share or interest therein of or to which I now
am, or at any time or times hereafter shall or may become
seised, possessed, or entitled for any estate or interest whatso-
ever, with liberty in the course of such management to let
or demise the said premises, or any part thereof, either from
year to year or for any term or number of years, or for any
less period than a 3'ear, at such rents, and either with or
without an}' fine or premium, and subject to such covenants and
conditions as my said Attorneys or Attorney shall think fit ; and
with liberty also to accept surrenders of leases or tenancies, to
make allowances to and arrangements with lessees, tenants, and
others, to cut timber and other trees, whether for repairs, sale,
or otherwise, to repair and rebuild houses or other buildings,
and to insure the same against damage by fire, tempest, or
otherwise, to repair fences, to drain or otherwise improve the
premises, or any part thereof, to appoint and employ bailifis,
game-keepers, agents, servants, and others to assist in the
management of the premises, and to remove them and
appoint others in their place, and to pay and allow to the
persons to be so employed as aforesaid such salaries, wages, or
other remuneration as my said Attorneys or Attorney shall
think fit ; And with power also to give effectual receipts and
discharges for the rents and profits of the premises, and on
non-payment of any rent or the breach of any covenant, agree-
ment, or condition which ought to be observed or performed by
any lessee or tenant, to take such proceedings by distress, action,

For stamps on a power of attorney, see Alpe, 11th ed., 155.

Instruments containing powers of attorney may be deposited in the instruments

Central Ofltice of the Supreme Court, and office copies of instruments so containing

deposited are sufficient evidence of theii* contents : Conv. Act, 1881, s. 48. iittomey may

III the case of registered kind the ptnver should be deposited at the Laud l>e deposited in
-r, • , Central Office

I^egistry. ^^.L^^^^^

As to execution by joint attorneys, see 54 SoL J. 148. Registry.

(/)) The power should of course be adapted to the actual property of the
grantor, and to the extent of the authority which he wishes to entrust to his
attorney. The above power is more comprehensive than wouhl generallj-
be required. For more limited powers, see next Precedent.



1176



(precedents) powers of attorney.



To exercise

fiduciary

powers.



To recover
money, &c.



To settle and

compromise,

&c.



To deal
with real
or personal
property.



To exercise
S. L. Act
j)owers.



or otherwise for recovering such rent or in respect of such breach
as my said Attorneys or Attorney shall think fit ; And generally
to do all such acts or things in or about the management of the
premises as my said Attorneys or Attorney might do if they or
he were or was the absolute owners or owner thereof ; Also to use
and take all lawful ways and means for recovering any messuages,
lands, or hereditaments belonging or supposed to belong to me.

2. To exercise all powers and trusts conferred on me by statute
or by any instrument whether as tenant for life, trustee, personal
representative or otherwise, but so that in all cases involving the
exercise of any discretion my said Attorneys or Attorney shall
before exercising the poM^er or trust communicate with me by
cablegram or otherwise to obtain my instructions and may act
on any reply cablegram appearing to be sent by me, but no
purchaser, lessee, mortgagee or other person dealing in good
faith for money or moneys worth shall be concerned to see that I
have been communicated with as to any instructions given by me.

3. To ask, demand, sue for, recover and receive all sums of
money, goods, effects, and things (whether real or personal)
now or hereafter owing, or payable, or belonging to me, by virtue
of any security, or upon any balance of accounts or otherwise,
howsoever, and to give, sign, and execute receipts, releases, and
other discharges for any property or thing in action whatsoever.

4. To settle, adjust, compound, submit to arbitration, and com-
promise all proceedings, accounts, claims, and demands whatso-
ever, which now are or hereafter shall be deijending between me
and any person or persons whomsoever, in such manner as my
said Attorneys or Attorney shall think fit.

5. To sell or otherwise dispose of or deal with any real or
personal property (whether in possession or reversion) now or
hereafter belonging to me, or which I have or shall have power
to dispose of under any general power or as a mortgagee or
otherwise (e), and to sell either by public auction or private
contract, and subject to any conditions as to title or otherwise,
with power to buy in or to rescind any contract for sale and to
resell.

6. Without prejudice to the generality of the foregoing powers
to exercise in reference to any real estate and chattels real all
the powers which are by the Settled Land Acts, 1882 to 1890,
conferred on a tenant for life in possession of land.



(c) See Re Dowson and JenJcins, 1904, 2 Ch. 219; 73 L. J. Ch. GSi.



GENERAL POWER OF ATTORNEY. 1177

7. To appear for me in any court of justice in any action or To defend
other proceeding which maybe instituted against me, and to '
defend the same or suffer judgment to go against me, and to
commence and prosecute any action or proceeding, or act
otherwise in any matter as my said Attorneys or Attorney shall

be advised or think proper.

8. To apply any money which may come to the hands of my To pay costs
said Attorneys or Attorney under these presents in payment of &c.

all costs and expenses incurred by them or him in or about the
execution of the powers herein contained or to raise the same by
way of mortgage or otherwise.

9. To deposit any money not required for costs and expenses To deposit

'^ "^ , , . money m

as aforesaid at any bank either in the names or name of my said bank,&c.
Attorneys or Attorney or in my name, and to withdraw the same
from time to time and to open or close any current account and
to draw and sign cheques.

10. To invest any money either in the names or name of my To invest.
said Attorneys or Attorney' or in my name in any investments
(whether being investments authorised by law for the investment

of trust money or not) or in the purchase or on the security of
any property real or personal, which the}^ or he may think proper,
and to vary the investments from time to time.

11. To execute and do in my name or otherwise all such deeds To execute

deeds, &c.

covenants, agreements and thnigs as my said Attorneys or
Attorney may think proper for the purpose of giving effect to
the powers hereby conferred.

12. Generally to manage all my concerns and affairs of every Generally to
description at their absolute discretion, and as fully and effectu- affairs.
ally as I could do if I were present and acting in my proper

person and without being liable to account for an}^ act or default
done or committed in good faith.

13. I DECLARE that each of my said Attorneys max act in the
several powers and authorities hereby conferred separately and

apart from the other of them And I authorise my Attornej^s, ^"^^^^.[^^"/to
and each of them, from time to time to apiDoint one or more appoint

,,. ij-jiji 1 p 11 substitutes,

substitute or substitutes to do, execute, and periorm all or any and to remove
such matters and things as aforesaid ; and the same substitute pieasm-e.
or substitutes at pleasure to remove, and to appoint another or
others, in his or their i^lace or places.

14. All and whatsoever my Attorneys, or either of them or
their or his substitute or substitutes, shall do or cause to be



1178



precedents) powers of attorney



done in or about the premises, I hereby covenant with my said
Attorneys, and with each of them, to allow, ratify, and confirm.

15. I DECLARE that this power shall be irrevocable for one year
from the date hereof (e).

In witness, &c.



No. II.



To receive
rents,

make arrange-
ments with
tenants,
and take
proceedings.



To sell and

convey landed

estate,

and to manage

until sale,

with visual

X^owers.



POWER of Attorney for Particular Purposes.

KNOW ALL MEN BY THESE PRESENTS that I., A. B.,

of. Sec, do this day of hereby appoint C. D., of, &c.,

to be my attorney [_(>)■ C. I)., of, A-c, and E. F., of, &c., and each
of them to be my attorneys and attorney] for me and in my
name and on my behalf or otherwise. (Add siiclt one or more of
the following clauses as may he required.)

1. To ask, demand, sue for, recover and receive of and from
all tenants and other persons who ought to pay the same, all
rents and sums of money which are now, or hereafter shall
become due or payable from or in respect of all or any of my messu-
ages, lands, and hereditaments situated in the Parish of , in

the County of , short particulars of which' are contained

in the Schedule hereto, and upon receipt thereof to give
good and sufficient receipts and discharges for the same ; And
also, if my said Attorney [Attorneys or Attorney] shall think fit,
to make abatements and allowances of rent to any of the tenants
of the premises, and to allow deductions for ground rents, land
tax, repairs, and other matters, and to settle and adjust all
accounts, claims, and demands in relation thereto, and also,
upon non-payment of the said rents or any of them, or other
money, or any part or parts thereof^ to take such proceedings by
distress, action, or otherwise, to recover the same as my said
Attorney [Attorneys or Attorney] shall think fit.

2. To sell at such time or times as my said Attorney [Attorneys
or Attorney] shall think fit, all or any of my messuages, lands,

and hereditaments situated in the Parish of , in the County

of , short particulars whereof are contained in the Schedule

hereto, and also any other hereditaments which may belong to
me during the continuance of this power, either together or in
lots, and either by public auction or private contract, and either

(e) This must not exceed one year: Conv. Act, 1882, s. 9.



SPECIAL POWER OF ATTORNEY. Uyg

^yitll or without special conditions as to title or otherwise, with
liberty to buy in at any sale l)y auction, to rescind or' vary
contracts for sale, and to resell without being answerable for
any loss arising thereby : And also to execute such deed or
deeds as may be required for conveying the premises to any
purchaser or purchasers thereof, and to give effectual receipts
and discharges for the purchase-money : And also in the mean-
time and until such sale to receive the rents and profits of the
premises, and to recover the same when in arrear by action
or distress, and generally to manage the premises, with liberty
in the course of such management to let or demise the said
premises or any part thereof either from year to year or for
any term of years not exceeding twenty-one years to take effect
in possession at and under such rents and covenants as my said
Attorney [Attorneys or Attorney] shall think fit, and with liberty
also to make allowances to and arrangements with tenants, to
cut timber and other trees for repairs, sale or otherwise, to expend
money in repairs and improvements and insurances against loss
or damage by fire, tempest or otherwise, and to do such other
acts and things in or about the management of the premises as
my said Attorney [Attorneys or Attorney] shall think fit.

3. To purchase from time to time any lands and hereditaments To purchase
which ni the opinion of my said Attorney [Attorneys or Attorney] '^"''^'•

may be convenient to be held with my estate at such price

or prices, and subject to such conditions as he [they or he] shall
think fit, and to sign any contract or contracts for that purpose,
and to pay any deposit which may be required to be paid by the
terms of the contract : Also to investigate the title to any heri-
ditaments agreed to l)e purchased, and to make requisitions and
objections in respect of the title, and to insist on or waive the
same : Also to take any proceedings for specific performance of
any such contract, or defend any proceedings which mav })e
taken by the vendor to enforce the same, and to settle by refer-
ence to arbitration or otherwise any questions which may arise
ni relation to the contract or the title or evidence of title "to the
property: Also, on completion of the purchase, to pay the
purchase-money or the remainder thereof, and to execute any
deed or deeds (whether containing covenants by me or not) which
may be thought necessary or proper, and generally to act in



Online LibraryFrederick PrideauxPrideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) → online text (page 129 of 138)