Secretarial practice

Bibliographic data

Monograph

Identifikator:: 1828236004

URN:: urn:nbn:de:zbw-retromon-249926

Document type:: Monograph

Title:: Secretarial practice

Edition:: fourth edition

Place of publication:: Cambridge

Publisher:: W. Heffer & Sons Ltd

Year of publication:: 1930

Scope:: viii, 987 Seiten

Digitisation:: 2022

Collection:: Economics Books

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Chapter

Document type:: Monograph

Structure type:: Chapter

Title:: Chapter XVIII. Mortgages, debentures and receivers

Collection:: Economics Books

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.

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