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TMI Blog1962 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, it is said that the company itself cannot sustain an action in effect asking for a declaration that the charge is void. The defendants have not raised this point specifically in their pleading. It is, it is true, a pure point of law. Nevertheless, it is, I think, a point taken by the defendants which, in substance, is a demurrer to the action, and I have had to consider R.S.C., Ord. 25, rules 1, 2 and 3, which are the rules which now apply in cases where, under the old procedure, a defendant would have demurred to the plaintiff's action. Rule 1 provides that no demurrer shall be allowed. Rule 2 provides that "any party shall be entitled to raise by his pleading any point of law, and unless the court or a judge otherwise orders, any point so raised shall be disposed of by the judge who tries the cause at or after the trial ..." Rule 3 states: "If, in the opinion of the court or a judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the court or judge may thereupon dismiss the action or make such other order therein as may be just." In prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going to be taken by the defendants. I now pass on to the substance of the point which is raised by Mr. Bagnall, which is that the company are not a proper plaintiff to assert that a charge is void as against the liquidator and any creditor of the company. Mr. Lawson, for the company, has referred me to Order 3, rule 2, and Order 5, rule 2, under which one finds notes relating to the way in which an action should be framed where a liquidator sues on behalf of a company. In such an action it is no doubt right that the liquidator should sue in the name of the company, but the question here is whether this is an action in which the liquidator could sue in the name of the company or whether it is not an action in which he ought to proceed in his own name. I do not think those notes really give me any assistance. What I have to consider is whether the company itself can have any good cause of action arising out of the non-registration of a charge registrable under section 95 of the Act of 1948, and I think the answer to that question is in the negative. The charge is not made void as against the company ; the charge is only made void as against the liquidator and as against creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 177; 62 TLR 747; [1946] 2 All. ER 638; 17 Comp. Cas. 168. Cur. adv. vult. June 8. Buckley J. delivered the following judgment which, after stating the facts substantially as set out above, continued : The only kind of charge referred to in section 95(2) within which it was suggested that the transaction with which I am concerned can fall is that referred to in section 95(2) (e), namely, a charge on book-debts of the company. Mr. Bagnall has submitted that what was charged by the deposit of the agreements was not any debts existing or which might come into existence thereunder, but in the case of each agreement an indivisible chose inaction, namely, the benefit of the agreement. The owners have, he says, other rights under the agreement besides the right to receive moneys and it is impermissible to isolate the right to receive moneys and say that that right is charged. In my judgment, the charge constituted by the deposit of one of these agreements was a charge upon each and all of the benefits of the company under that agreement. If those benefits included any rights which can properly be described as "book-debts " the charge was, in part at least, a charge on book-debts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the books of the business or not. Mr. Bagnall says (and with justice) that nothing can be a book-debt which is not a debt, debitum in presenti, whether solvendum in presenti or in futuro. Mr. Bagnall has contended that in the present case, if the hirer made his payments punctually there could never be any debt due from him to the company. Although I am not sure that he put this contention in exactly these terms, I believe I accurately state its substance as being that the agreement gives the hirer a series of options to continue his hiring and an ultimate option of buying the goods : as each due date for payment arrives, the hirer can (so the argument goes) renew his hiring by paying the instalment or he can terminate the agreement, and, as the obligation of the hirer to make the periodic payments only continues so long as the agreement continues, the hirer can by determining the agreement on or before any due date for payment avoid the liability to make the payment which would otherwise then become due. Whether the hirer will or will not become liable for any particular instalment is thus, it is said, dependent on the hirer's option. Only if the hirer permits the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen a book-debt came into existence under any of the agreements that book-debt would immediately become charged by reason of the deposit. He contends that section 95 does not on its true construction require a charge on future book-debts to be registered and that "book-debts" in sub-section (2)( e ) means only existing book-debts. In this connection, he drew my attention to the fact that in section 43 of the Bankruptcy Act, 1914, the legislature was not content to refer merely to book-debts but used the expression "his existing or future book-debts " and in section 38 of the same Act employed the term "debts due or growing due," and to the decision in Blakey v. Pendlebury Property Trustees [1931] 2 Ch. 255; 47 TLR 503, CA under the latter section. I think that there are two answers to this argument. First, for reasons I have already given, I am of opinion that upon the true interpretation of the form of agreement used in this case the hirer became liable immediately upon the agreement coming into operation to the extent of his minimum liability under it notwithstanding that some part of that liability was to be discharged by future payments and that the debts so constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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