PART VII. thereof according to the form in the schedule. Where any such receiver or manager has been so appointed he shall investigate the state of the CHAP. XVI. debtor's affairs, and report thereon to the general meeting of creditors. The nomination and appointment of any such receiver shall be confirmed by the court upon summary application in any case in which the debtor refuses to give possession or control to the receiver or manager so appointed. Any such nomination paper shall be in duplicate, and may be signed by the creditors in their individual or partnership names, or by some person who shall state in his signature that he does so by procuration on the creditor's behalf. The signatures or debts need not be verified further than by the affidavit of one of the three principal creditors signing the nomination paper (or a partner in the firm of one of them) according to the form in the schedule, and such affidavit shall be filed in court with one of the nomination papers. If any receiver or manager has been appointed by the court, the nominee of the creditors shall be forthwith substituted in his place, and the court shall order accordingly." 263. "Where a receiver or manager has been appointed the court may at any time cancel his appointment by consent of the debtor and of the creditor or creditors (if any) upon whose application the appointment was made, and of any creditor or creditors whose proceedings may have been restrained as aforesaid, or if the court shall see fit." 264. "Where a receiver or manager has been appointed he shall be entitled to the custody of the books and effects of the debtor, and the debtor or any person having the previous custody thereof on his behalf shall forthwith deliver the same to the receiver." 265. "The receiver or manager shall at all times permit the debtor or any of his creditors or their agents to have access to and inspect the debtor's books of account." 266. "Where proceedings have been instituted for liquidation or composition the court may adjudicate the debtor bankrupt if in the opinion of the court the property of the debtor cannot be sufficiently protected by the exercise of the power hereinbefore given to restrain suits and actions, and the appointment of a receiver or manager; but in any such case all proceedings under such order of adjudication shall be stayed immediately upon the making thereof, and until the creditors shall have passed some special or extraordinary resolution in reference to the liquidation or composition, and in the event of any such resolution being duly passed the adjudication shall be forthwith annulled." 267. "In the event of any neglect on the part of the creditors to pass such resolution, the court may, on the application of any of the creditors, and after notice to the debtor, make an order of adjudication against the debtor, or direct the bankruptcy to be proceeded with, as the case may be." 268. "The chairman of the first general meeting shall be elected by a majority of the persons present thereat claiming to be or to represent creditors. The chairman of any subsequent general meeting shall be elected by a majority in value of the creditors present or represented thereat who have proved their debts." 269. "Creditors may prove their debts and appoint proxies as in bankruptcy." 270. All debts which would have been proveable in bankruptcy had the debtor been adjudicated bankrupt at the date of the institution of the proceedings shall be proveable under any such proceedings." PART VII. 271. "All proofs and proxies intended to be used at any general CHAP. XVI. meeting, and not previously filed, shall be handed in to the chairman of the meeting. Any objection thereto shall be marked thereon by the chairman, and shall be dealt with by the registrar on the resolution being presented to him for registration." 272. “A secured creditor, unless he shall have realized his security, shall, previously to being allowed to prove or vote, state in his proof the particulars of his security and the value at which he assesses the same, and he shall be deemed to be a creditor only in respect of the balance due to him after deducting such assessed value of the security. In cases of liquidation by arrangement any secured creditor so proving shall be bound to pay over to the trustee the amount which his security shall produce beyond the amount of such assessed value, and the trustee shall be entitled at any time before realization of such security by the creditor to redeem the same upon payment of such assessed value. The proof of any such creditor shall not be increased in the event of the security realizing a less sum than the value at which he has so assessed the same." 273. "Where any creditor shall desire to retire from any meeting and not to be considered as present, he may withdraw his proof without prejudice to his again proving his debt on any subsequent occasion." 274. "The debtor shall produce to the first general meeting, and also, in case there be any, to the second general meeting, a statement showing the whole of his debts and assets, and the names and addresses of the creditor to whom such debts respectively are due. The name of each creditor in such statement shall be numbered consecutively, and the list of creditors whose debts do not exceed 107. shall be separated from and follow after the list of those creditors whose debts exceed that amount. The debtor's statement of affairs shall be as near as may be in the form required in bankruptcy." 275. "The resolution passed at the first general meeting (or first and second general meetings, as the case may be) shall determine whether the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy, or whether any and what composition shall be accepted in satisfaction of the debts due to the creditors from the debtor, or it may reject either of such modes of arrangement. The resolution may declare to whom the registration of the resolution and the debtor's statement of affairs shall be intrusted, and the original resolution and statement shall forthwith be delivered accordingly to the person so appointed, and in the event of no such declaration being made in the resolution the same shall be registered by the debtor. Only such resolutions as are reduced into writing and are signed by or on behalf of the statutory majority of the creditors assembled at a meeting shall be taken cognizance of by the court, but the signatures of such creditors may be subscribed subsequently to the meeting, but prior to the filing or registration of the resolution." 276. "The chairman shall be bound forthwith to deliver to the person, if any, so appointed, or, in default of such appointment, to the debtor, every declaration or affidavit for proof of debt and proxy paper of what nature or kind soever, and whether in due form or otherwise, which shall have been received at the general meeting or meetings, and also the debtor's statement of affairs, and in default thereof may be summoned before the court, and the court may make such order in the matter as it shall think fit." CHAP. XVI. 277. "In the event of a liquidation by arrangement being resolved PART VII. upon at any general meeting, and no trustee with or without a committee of inspection being then appointed, a subsequent meeting shall be held at such time and place, at an interval of not more than a week, as shall be appointed by the resolution, or in default of any such subsequent meeting being so appointed, the same shall be held on the same day in the following week, at the same time and place. No notice of any such subsequent meeting need be given to the creditors." 278. "In cases of liquidation by arrangement the general meeting shall by special resolution declare what security, if any, shall be given by the trustee, and what remuneration, if any, the trustee shall receive, or they may resolve to leave his remuneration to the committee of inspection, or to a subsequent general meeting." 279. "Where the creditors at the first general meeting duly pass a resolution that a composition shall be accepted in satisfaction of the debts due to them from the debtor, they shall specify in their resolution the amount of the composition and the instalments and dates at which the same shall be payable, and they may name some person as trustee for receipt and distribution of the composition and any negotiable securities which may be given for the same." 280. "Instead of specifying by their resolution the security to be given the creditors may resolve that the composition or some part or instalment thereof shall be secured in such manner as may be approved by a creditor or creditors to be named by the resolution.' 281. "The extraordinary resolution may provide that the terms of the composition be embodied in a deed between such parties and containing such covenants for payment of the composition, and for protecting and releasing the debtor, and such other covenants and such provisions for securing the composition either by assignment of property, or by inspection of the debtor's business or otherwise, as the nature of the case may require, and as the resolution may specify in particular or general terms.' 282. "Where, at the first general meeting, a resolution has been passed, resolving that a composition shall be accepted in satisfaction of the debts due to the creditors from the debtor, such resolution shall be filed with the statement of the debtors' affairs, proof, and proxies within three days, and another general meeting shall be appointed to be held at an interval of not less than seven days nor more than fourteen days from the date of the meeting at which the resolution was first passed. The second general meeting shall be held at the same place as the first general meeting unless the resolution at such first general meeting shall have otherwise directed. Notice thereof according to the form in the schedule shall be given to every creditor in manner provided with respect to first general meetings, with this addition, that the notice to every creditor who was not present or represented at the first general meeting shall be sent by registered post letter. Such notices shall be sent on or before the sixth day prior to the day on which the second meeting is appointed to be held. In the event of notice not being requested to be sent by the debtor or his attorney on the sixth day prior to the second meeting, any creditor may file a similar request, desiring the registrar to forward the notices summoning the second meeting; and in the event of any meeting being so summoned it shall be sufficient if the notices are signed by the registrar and sealed, and are posted on the third day prior to the meeting." D. VOL. II. сс PART VII. 283. "At the second general meeting of creditors, the creditors asCHAP. XVI. sembled may confirm the resolution passed at the first general meeting, or they may pass a special resolution that the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy." 284. The person to whom the registration of the special or extraordinary resolution may have been entrusted, or the debtor or his attorney, as the case may be, shall file the same in court, together with the debtor's statement of affairs and all proofs and proxies, within three days after he shall have received the same, or in default thereof shall be summoned before the court, and some person able to depose thereto shall verify and identify the resolutions, statement, proofs, and proxies so filed as being the whole of the resolutions, statement, proofs, and proxies come to and produced at the meeting or meetings when such special or extraordinary resolutions were passed." 285. "In cases of proceedings for liquidation, by arrangement or composition, instituted by partners, separate meetings of the different classes of creditors shall be held; thus: if the partnership consists of A., B., and C. a meeting of the joint creditors of A., B. and C. shall be first held, and separate meetings of the separate creditors of A., B. and C. shall be held at a date or time subsequent to the meeting of the partnership creditors. The joint creditors may come to such resolution as they may think fit with regard to the joint estate. The separate creditors may also come to such resolution as they may think fit as regards the liquidation of the estate of their individual debtor, but in the event of their determining upon his bankruptcy, or the liquidation of his estate by arrangement, they shall choose the same trustee, if any, as has been or shall be appointed by the joint or partnership creditors, but they may appoint a committee of inspection from their own body, if they think fit, or they may adopt the committee (if any) appointed by the joint or partnership creditors. In the event of the separate creditors of any such debtor agreeing to accept a composition, in cases where the joint creditors have resolved on a liquidation by arrangement, the assets of such separate debtor shall be made available by the trustee for or towards the payment thereof, in such manner as the court shall direct and approve, and any surplus of such separate estate remaining in the hands of the trustee, after payment of or provision for such composition, and all proper costs incurred in connexion therewith, shall be deemed partnerships assets. If in any such case the separate debtor shall be a member of more than one firm, the surplus of his separate estate shall be applied in such manner as the court may direct." 286. "If the petition be by partners, and any two or more of such partners constitute a separate and independent firm, the creditors of such firm may likewise come to a separate resolution as regards the liquidation of such minor partnership estate, and where any surplus shall arise upon the liquidation thereof, the same shall be carried over to the separate estates of the partners in such minor firm according to their respective rights therein." 287. "In cases of proceedings for or towards liquidation by arrangement or composition by an individual debtor, his creditors and debts shall be deemed to be and include not only those creditors to whom or those debts in respect of which he is individually responsible, but also those creditors and debts to whom or in respect of which he is also responsible jointly with any other person or persons; and the statutory majority required for the purpose of any resolution shall be a collective majority of the whole of such joint and separate creditors assembled at any meeting. In any such last-mentioned proceedings the terms of the resolution as regards joint and separate creditors need not be identical, and, if so desired, the resolution may provide for the payment of a composition to the separate creditors, and that the rights of the joint creditors shall not be prejudiced or affected thereby." 288. "The creditors assembled at any general meeting may include in their resolution a direction that the proceedings be transferred to any court other than that in which the same were originated; and upon any such resolution being filed, the proceedings shall be forthwith transferred by the registrar in accordance therewith; and the court to which the same shall have been transferred shall thereafter act in the matter of the proceedings in like manner as if the same had been properly instituted therein in the first instance." 289. "Every creditor in respect of a proveable debt shall in the event of a liquidation by arrangement being resolved upon, be absolutely restrained from commencing or continuing or enforcing any proceedings whatsoever against the debtor or his property, notwithstanding that such creditor has not received notice of the general meeting, unless the court shall be of opinion that such creditor's rights have been prejudicially affected by the resolution, and that the estate would yield a larger dividend if administered in bankruptcy" (e). 290. "Where bankruptcy occurs during the continuance of a liquidation by arrangement, the trustee under such liquidation shall pay over and account for to the trustee to be appointed under the bankruptcy any monies or property of the debtor which have come to his hands, and in the event of a dividend having been paid to some of the creditors the court shall make such order for the appropriation thereof as will equalize the distribution of the monies or property amongst the creditors who would or should have been entitled thereto under the liquidation proceedings." 291. "In case of liquidation by arrangement, all proper costs of and incidental to the proceedings prior to the passing of the resolution shall be paid by the trustee out of the estate of the debtor, in like manner and in the like priority as the costs of a petitioning creditor under a bankruptcy petition." 292.Where bankruptcy occurs pending proceedings for or towards liquidation by arrangement or composition with creditors, the proper costs incurred in relation to such proceedings shall be paid by the trustee under the bankruptcy out of the debtor's estate, unless the court shall otherwise order." 293. "Where any resolution is required to be passed or any act to be done by the creditors present or represented at any meeting, the majority required for the purpose shall, in the absence of any enactment to the contrary, be a majority in value of the creditors present or represented thereat." 294. "Resolutions duly come to at any meeting shall have full force and effect, notwithstanding that it may also be resolved that for other purposes the meeting shall stand adjourned." 295. "Upon presentation of a special or extraordinary resolution for (e) The judicial discretion of the court in granting injunctions is not excluded by this rule. James, L. J., Ex parte Mills, Re Manning, 40 PART VII. CHAP. XVI. |