Vol. III. Chap. XVIII. Proviso that previous to re. ceiving Dividend, Creditors shall give up all Bills, &c., to which Debtor is Persons liable. and also to allow to his and their co-inspector and co-inspectors, alf costs, charges, damages and expences which they or any of them shall or may suffer, sustain, expend, disburse, or be put unto, in or about the execution of all or any of the aforesaid trusts, or otherwise by virtue of these presents: Provided always, and it is hereby also agreed and declared between and by the said parties hereto, that each of the said creditors, parties hereto, shall, previously to his receiving a dividend by virtue of or under these presents, deliver to the said (debtor), or to the said inspectors or inspector for the time being, for the purpose of being cancelled, all bills of exchange, promissory (notes for the payment of which the said (debtor) shall be solely liable); but nothing herein contained shall extend or be construed to prevent the said creditors, parties hereto, or any of them, or their partner or partners, or their or any of their respective heirs, executors, administrators or assigns, from suing or prosecuting any person or persons, other than the said (debtor,) his executors or administrators, who is or are or shall or may be liable or answerable to pay or make good to any of the said creditors all or any part of their respective debts, either as payers of promissory note or notes, or as drawers, indorsers, or acceptors of any bill or bills of exchange, or as being jointly or severally bound in any bond or bonds, obligation or obligations, or other instrument, or as being liable or accountable to pay any such debts without having subscribed any bill, note, or other instrument whatsoever, as if these presents had not been made, Provided always, and it is hereby further agreed and declared by and between the said parties hereto, that no creditor or creditors of the said (debtor), who is or shall become a party or parties to these presents, shall be entitle to receive any dividend in respect of his, her, or their debt or debts under or by virtue of these presents, unless or until he, she, or they shall, if thereunto required by the said (inspectors) or the survivors or survivor of them, or the inspectors or inspector for the time being, or any of them, produce or shew forth unto them or him, all and every the securities and security which he, and verified the she, or they may have received, or may hold for his or their debt or respective Proviso that no Creditor receive Dividend until he has produced Securities, if required; same and the Debt on Oath; and if any Cre ditor holds Security (other than Bill, &c. taken as Money Payment), he shall have Dividend only on Balance, after such Security shall have been realized, as under Commission of Bankrupt. Proviso allowing Inspectors to adjust the Value of Securities with Creditors; or debts, and verify the nature of such securities or security, and the circum- Vol. III. been sold; in such Security, free from all holding and retaining the same shall be entitled to have and receive the balance of his, her, or their debt or debts, beyond the amount of such valua- Chap. XVIII. tion, and a dividend in respect thereof, in such and the same manner as he she, or they would have been entitled to in case the said security or secu- such Creditor and thereupon rities had been realized by an actual sale thereof, and had produced the to have a Diviamount of such valuation; and the said creditor or creditors shall thence- dend on the forth be entitled to retain and keep the property comprized in such secu- Balance, as if rity or securities, to and for his and their own use and benefit respectively, Security had absolutely and irredeemably, free from any claim or demand whatsoever and such Crethereon, by and on the part of the said (debtor), his executors or adminis- ditor shall then trators, or of the said inspectors or inspector for the time being, or of any keep the Proothers of the said creditors parties hereto. Provided always, and it is hereby perty comprized further agreed and declared by and between the said parties hereto, that in case any commission of bankrupt shall be awarded and prosecuted against the said (debtor), and he shall be thereupon found and declared a bankrupt, then and in such case the said several creditors who, or whose attornies or agents, shall have become parties to and shall have executed these presents, shall and will give their respective consent that all the allowances and payments, charges and expences, which the said (inspectors), or the survivors or ditors will consurvivor of them, or the inspectors or inspector for the time being, are sent to Allowherein-before authorized and empowered to make, and which they shall have ments, &c., by ance of Payactually made or incurred pursuant to the trusts and powers herein-before Inspectors out of contained, shall be repaid and allowed to him or them respectively under the Estate. such commission of bankrupt, by and out of the estate and effects to be received by the assignees to be chosen under the said commission. In witness, &c. Claim. Proviso, that if any Commission of Bankrupt issues, Cre That all simple contract debts should, notwithstanding their insertion in Proviso in Deed the schedule, be verified by affidavit, in case the said trustees for the time of Inspectorship, being, or a majority of them, or any three or more of the creditors of the shall have Power that Trustees company whose debt should amount in the whole to the sum of £1,000 or to require Proof upwards, should require the same; and that it should be lawful for the said of Simple Contrustees for the time being, or the major part of them, without prejudice tract Creditors nevertheless, to the provision last herein-before contained, to investigate Debts, and to the amount and reality of the respective debts and demands of the several persons claiming the benefit of the provisions thereby made, and to admit the validity of the same respective claims, to such extent, and upon such evidence, and to make such reference to arbitration, or other compromise or composition respecting the same, as such trustees or the major part of them should think proper or expedient. submit the Proof Arbitration, &c. Vol. III. Chap. XVIII. Memorandum of Agreement at a Meeting of Creditors, to re ceive a Composition of Debts. (1) The like in another Form. (2) Agreement to accept Stock in Trade in full of all Demands, to assign same to Trustee. (4) Assignment of all the Goods, Furniture, &c. of a Debtor to Trustees for the Benefit of his Creditors. Memorandum.-At a meeting of the creditors of A. B., of, &c., held at, &c., the- day of it is concluded and agreed on as follows; that is to say, we the creditors of the said A. B. whose names are hereunder written, have this day severally and respectively agreed, for ourselves, and for our several and respective partners, executors, administrators or assigns, to and with the said A. B., his executors and administrators, to accept, receive, and take the sum of - for each and every pound that he the said A. B. doth owe and is indebted to us severally and respectively, in full satisfaction and discharge of the debts or sums severally and respectively, due to us from the said A. B., so that the said sum of for each and every pound be paid severally and respectively unto us, or to our several and respective executors, administrator or assigns, within the space or time of- days (as the case may be) from the day of the date hereof, and in default thereof this agreement, or any thing herein contained to the contrary thereof to be null and void. Witness our hands, the day and year aforesaid. Whereas A. B. &c., now stands indebted unto us, whose names are here. unto subscribed, in the several sums of money set opposite our respective names, (3) which he being unable at present to satisfy, hath requested us to grant him time of payment, in manner herein-after mentioned, to which we have respectively assented: Therefore we hereby do, and each of us doth give unto the said A. B., time of payment thereof, in manner following, that is to say, from the date hereof for the payment of onepart of each of our respective debts, for the payment of thereof, and - for the payment of the residue thereof, with legal interest, to be computed on the whole of such respective sums of money from the day of the date hereof; to wit, the As witness our hands, &c. day of. 18 At a meeting of the creditors of A. B. of, &c. resolved, that in consideration of an undertaking by her to assign the whole of her stock in trade and book debts, &c. to a trustce for the benefit of the creditors, we agree to accept the same in full of all demands, and to execute releases to the said A. B., as soon as the property shall realize the sum of £238. This indenture of three parts, made the day of in the year of our Lord, between J. M. of, &c., of the first part; W. B. of, &c., and R. T. of, &c., of the second part; and the said W. B. and the several other persons whose names and seals are hereunto set and subscribed, creditors of the said J. M., of the third part: Whereas the said J. M. stands indebted unto the said W. B. and R. T. and the several other persons, parties hereto of the third part, in the several sums of money set opposite to their respective names at the foot of these presents; and by reason of many losses in trade, bad debts, and other misfortunes, he is rendered incapable of making full payment to his creditors of their respective debts: And whereas the said J. M. being willing and desirous to (1) Montefiore, 344. As to effect of this agreement, ante, vol. 3. 688, 9. If there be a specialty debt, the agreement should be under seal, ante, vol. 3. 688.; and in all preliminary agreements of this nature, it may be prudent to insert a stipulation, that the creditors shall, on being required, sign a formal deed, to be Vol. III. Personal Pro- perty. Power to enter upon Debtor's Premises, and seize such pro perty. Debtor's Debts and securities. pay off and satisfy all his creditors as far as his estate and effects will extend and amount to, he hath agreed and proposed to assign the same unto the Chap. XVIII. said W.B. and R. T., upon the trusts, and to and for the ends, intents and purposes hereinafter mentioned and contained: Now this indenture witnesseth, that for the purposes aforesaid, and for effectuating and carrying the said recited proposal into execution, and also for and in consideration of the sum of ten shillings of lawful money current in Great Britain, by each of them the said W. B. and R. T. to the said J. M. paid at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, he the said J. M. hath granted, bargained, sold, assigned, transferred and set over, and by these presents doth grant, bargain, sell, assign, transfer and set over unto the said W. B. and R. T., their executors, administrators, and assigns, all the household goods, furniture, plate, linen, beds, bedding, book-debts, and other debts, sum and sums of money, and all other the goods, chattels, and personal estate and effects whatsoever and wheresoever, and of what kind or nature soever, belonging and due, and owing to the said J. M. the necessary and convenient wearing apparel of himself and family, excepted; and also full and free liberty, licence, and authority for the said W. B. and R. T. to enter into and upon the dwelling-house and other premises of the said J. M. wherein the said hereby bargained premises or any of them are or shall be found, or may be suspected to be found, and to seize, take, sell, and dispose of the same upon the premises or otherwise at their free will and pleasure, without the molestation of the said J. M. or any other person through his procurement; and also all bills, bonds, notes, securities, dividends, writings, books Assignment of of account, vouchers, and other papers due and owing and belonging, or according to him or in anywise belonging to or concerning the premises or any part thereof; and all the estate, right, title, interest, property, claim and demand whatsoever, both at law and in equity, of the said J. M. of, into, and out of the said hereby bargained premises or any part thereof, to have and to hold, perceive, receive, and take the said household goods, Habendum. chattels, and effects hereby assigned or mentioned, or intended so to be, and every part thereof except as aforesaid, unto the said W.B. and R. T., their executors, administrators, and assigns, from thenceforth for ever, upon the trusts nevertheless, and to and for the several ends, intents and purposes hereinafter mentioned and declared of and concerning the same: (that is to say), upon trust, that the said W. B. and R. T. and the survivor Upon Trust of them, his executors and administrators, do and shall with all confor Payment of venient speed, in such manner and at such time or times, and by and under Debts, &c. such terms or prices as they shall think reasonable and proper, absolutely sell and dispose of all and singular the said personal estate and effects, and convert the same into ready money; and also do. and shall collect, receive, and get in all the residue of the said premises, and by and out of the monies which shall arise by such sale or sales, and which shall be collected, received, and gotten in as aforesaid, do and shall in the first place pay and discharge the costs, charges, and expences attending the preparing these presents, and a duplicate hereof, and the said sales and dispositions, and inventorying and managing the said effects or in anywise relating thereto or to the trusts hereby in them reposed; and in the next place do and shall pay, retain, and apply all the residue of the said trust-monies so to be by them raised, received, and gotten in as aforesaid in full satisfaction and discharge of the debts due and owing to the said W. B. and R. T., and all other the creditors of the said J. M., who shall by themselves or their attornies or agents consent to and subscribe their names at the foot of these presents, or who shall by writing, or letters addressed to the said trustees, or J. W. their solicitor, or any of them, signify their intention of so doing within three calendar months noxt Vol. III. Debts before Payment to be verified by Affidavit, if required. Overplus to Power for Trustees to sue for Debts. Covenant of Debtor to do any further Act to execution. Power for Trustees to compound. ensuing the date of these presents, such debts being first verified by Chap. XVIII. affidavit to be sworn before a master extraordinary in chancery (if required by the said trustees or their said solicitor as aforesaid), or otherwise as much of the said debts as the residue of the said trust-monies, after payment of all such costs, charges and expences as aforesaid, shall extend to pay, by an equal pound rate according to the quantum of their respective debts, and without any preference or priority of payment whatosever, according to the true intent and meaning of these presents; and if, after such payment and deductions as aforesaid, there shall remain an overplus in the hands of the said W. B. and R. T. then upon further trust to pay the same unto the said J. M., his executors, administrators, and assigns, and the said J. M. doth hereby appoint the said W. B. and R. T. his true and lawful attornies, jointly and severally to ask, demand, sue for, recover, and get all debts and effects, and to give receipts for the same, which shall be good discharges, and also to do and perform all other necessary acts and deeds for recovering and getting in the debts and effects, sums of money, and every of them, and otherwise performing and carrying into effect the trusts hereby in them reposed, according to the true intent and meaning of these presents; and the said J. M. doth hereby covenant with the said W. B. and R. T. their executors, administrators, and carry Trust into assigns, that he the said J. M., his executors and administrators, shall and will do and execute any further and other lawful and reasonable act, deed, matter or thing whatsoever, as well for corroborating these presents as for the further and better granting and assigning the premises in manner and upon the trusts aforesaid, when thereto required by the said W. B. and R. T., their executors, administrators, and assigns: And it is hereby declared and agreed by and between all the said parties to these presents, that the said W. B. and R. T., their executors, administrators or assigns, shall be at liberty to compound with any debtor of the said J. M. as they or he shall think fit; and also that he or they shall be charged and chargeable only for so much money as they shall respectively actually receive, and that they shall not be charged and chargeable for any misfortune, loss, or damage which may happen without his or their wilful default: And also that the said W. B. and R. T., their executors and administrators, shall and may reimburse himself and themselves by and out of the said trust-monies all such loss, costs, charges, damages and expences as he or they shall or may suffer, sustain, expend, or be put unto in the execution and performance of the trusts hereby in him and them reposed: And lastly, all the said creditors, parties to these presents for the considerations aforesaid, do hereby for themselves severally and respectively, and for their several and respective executors and administrators, but not the one for the other or others of them, covenant, promise, and agree to and with the said J.M., his heirs, executors, administrators, that they the said creditors, parties to these presents, shall and will accept and take the dividend or dividends to arise and be produced out of and from the said hereby bargained and assigned premises, in full satisfaction and discharge of their several and respective debts as aforesaid; and that neither they nor their executors or administrators, partners or assigns or any of them shall and will from henceforth sue, arrest, impede, molest, disturb, imprison, attach, or prosecute the said J. M., his heirs, executors or administrators, or his, their, or any of their goods, chattels, lands, and tenements for, upon account, or by reason or means of any debt or debts, sum or sums of money or demand whatsoever now due or owing to him or them from the said J. M., or Trustees not liable for any thing but wilful Default. Trustees to be reimbursed their Expences, &c. Covenant by Creditors to reIceive the Dividend in full Satisfaction of Dents. Covenant not to sue, &c. debtor. (1) (1) Query. This covenant, it should seem, they would in such case be liable for a breach of covenant. Any objection on this ground might be obviated by inserting clause ante, 409, 404. |