MORTGAGES, DEBENTURES AND RECEIVERS 197
justitiae, but the Court has discretion to refuse such an order
in certain circumstances, e.g. if the petition is opposed by the
majority of creditors and the petitioner would derive no
substantial benefit from the order [Western of Canada Oil Co.,
L.R. 17 Eq. 1; Chapel House Colliery Co., 24 C.D. 259].

A fixed charge is usually given upon the immovable property
of the company, whilst a floating charge as a rule covers the
whole of the undertaking and property, including stock,
book debts and cash of the company and all other property
not subject to the fixed charge and including also as a rule
the uncalled capital of the company.

A floating charge leaves the company free to use the pro-
perty the subject of the charge as it pleases until the charge
attaches; that is, it is a charge on the company as a going
concern, which will not attach until the company ceases
to be a going concern [Governments Stock Co. v. Manila
Railway Co. (1897), A.C. 81; re Borax Co. (1901), 1 Ch. 326;
[llingworth v. Houldsworth (1904), A.C. 355], or until by the
conditions (if any) of the debenture the floating charge attaches.
The usual conditions are, if execution or distress is levied
against the company, or if the company goes into liquidation
or ceases to carry on business.

A floating charge does not prevent the company from
creating mortgages on the property charged, unless there is a
declaration that the company shall not have power to mort-
gage in priority to the floating charge (Wheatley v. Silkstone
Coal Co. (1885), 29 Ch. D. 715; and see Cox-Moore v. Peruvian
Corporation (1908), 1 Ch. 604]. Even if there is a declara-
tion that the company has not power to make a mortgage
in priority to, or pari passu with a floating charge, this
may be defeated by a legal mortgagee of any property subject
to the charge other than land who can show that he had
no knowledge of any clause in the floating charge preventing
him from having the full benefit of his legal mortgage [English
and Scottish Investment Co. v. Brunton (1892), 2 Q.B. 700].
As regards land, it is thought that the debenture holder will be
protected by registration under s. 79; for such registration is

equivalent to registration under the Land Charges Act, 1925
see s. 10 (5) of that Act], and under s. 198 of the Law of
Property Act, 1925, a subsequent mortgagee will be deemed to
have actual notice of the instrument creating the charge for all
purposes. The company has complete power to deal with the
property the subject of the floating charge, until the company
s wound up or a receiver put in [Governments Stock Co. v.
Manila Railway (1897), A.C. 81; Florence Land Co. (1878),
to Ch. D 5:71. When a floating charge attaches, the rights of

Fixed and
Floating
Charges.