Clauses Act and 1860. And sums payable under leases to the company. any lease granted or made to the company which is to rank in 8 & 9 VICT. c. 16. priority to, or pari passu with, the interest or dividends on the mortgages, bonds, and debenture stock; nor is anything therein Lands Clauses before contained to affect any claim for land taken, used, or occu- Amendment Act, pied by the company for the purposes of the railway, or injuriously affected by the construction thereof, or by the exercise of any of the powers conferred on the company. It had been decided previously to the passing of this general act, And compensaander a similar statute, that a mortgagee could not maintain an tion for land and action of ejectment, even where the mortgage purported to convey Rights of mortinjury. "the said undertaking, and all the estate, right, title, and interest gagees at law: of the company in and to the same: (Doe d. Myatt v. St Helen's and no ejectment. Runcorn Gap Railway Co., 2 Q. B. 364; 2 R. C. 756.) See, however, the observation of Lord Chelmsford on this case in Wickham v. New Brick and Canada Railway Co., L. R. 1 P. C. 64; 12 Jur. N. S. 34; 35 L. J. (P. C.) 6; 14 W. R. 251; and it was held in the case of Hart v. Eastern Union Railway Co., 7 Exch. 246; 6 R. C. 818 in error; 22 L. J. (Exch.) 20; that an instrument similar in form to that given Mortgage in form in schedule (C.) of this act did not mortgage the land of the rail- of schedule (C.) way. This case also decided, that where the repayment of the mortgage debt is secured by an instrument which on its face im- Action for nonports a covenant for repayment, and a date is fixed for the repay- payment of ment, and it be not duly repaid, an action against the company is mortgage debt. attainable. See ante, pp. 41, 42. does not mort gage the land. terest by deben Interest is recoverable in an action of covenant by a debenture Recovery of inholder, though it be not stipulated for in the bond: (Price v. Great ture-holders. Western Railway Co., 16 M. & W. 244; 4 R. C. 707.) As to issuing Issuing execuof execution, see Bolckow v. Herne Bay Pier Co., 1 E. & B. 74; 7 R. tion. C.231. fraud in issue of bonds. Where a company gave a bond purporting to be for a sum Allegations of borrowed and advanced conformably to the act, a plea that it was executed colourably, and that the money was not, in fact, borrowed or lent for the purpose of the statute, as the obligee well knew, was held tad, no fraud or injury to the shareholders of the company being shown: (Hill v. Manchester and Salford Waterworks Co. 2 B. & Ad. 544. And see for a plea of fraud and want of authority Plea of fraud and in company to make the bond on which action was brought, want of authoHorton v. Westminster Improvement Commissioners, 21 L. J. (Exch.) 297; 7 Exch. 780.) rity. blank. As to the invalidity of debentures with blanks for payee's name, Debentures in and their admissibility in evidence, see Enthoven v. Hoyle, 21 L. J. C. P. 100; 13 C. B. 373. perty. As to whether property acquired by a railway company subse- Charge of future quently to a mortgage of the line "and all the estate, chattels, and acquired proeffects of the company which they are seised of and entitled to, or Lay during the continuance of the security be seised of or entitled to," is affected by the mortgage, see Willink v. Andrews, 16 Ir. C. L. Rep. 201. Where bonds were issued by a company to receive repayment of Attachment by advances, by the terms of which all holders were to be paid pari garnishee order. par, and they suffered judgment by default in an action brought on one of them, it was held that the debt so secured was not a debt which could be attached under the clause relating to garnishees in 8 & 9 VICT. o. 13. the 17 & 18 Vict. c. 125, s. 16: (Kennett v. Westminster Improvement Commissioners, 11 Exch. 349; 25 L. J. (Exch.) 97.) Effect of action upon rights of others.. Under a similar act prior to the general act, it was held that the by bond-holder intention that no person should obtain a preference by reason of the priority of the date of his security, was not defeated by an action brought by a bond-holder in the bond: (Hill v. Manchester and Sal ford Waterworks Co., 2 B. & Ad. 544.) A mortgagee must in equity himself and all sue on behalf of others in the same interest. A mortgagee seeking to establish or enforce his debt, or to obtain the appointment of a receiver, must, in equity, sue on behalf of himself and all the other mortgagees in the same interest or class with himself: (Mellish v. Brooks, 3 Bea. 22; Potts v. Warwick and Birmingham Canal Navigation Co., Kay 142; Fripp v. Chard Railway Co., 11 Hare, 241; Legg v. Mathieson, 2 Giff. 71; 29 L. J. (Ch.) 385 ;) And cannot sue and where such a suit has been instituted, a mortgagee, holding a a mortgage in the statutory form of a debenture of the company, is not entitled to sue out execution on a judgment which he has and all others in obtained at law, in an action on the same instrument, except as a trustee for himself and all other debenture-holders entitled to be paid pari passu with him: (Bowen v. Brecon Railway Co., Ex parte Howell, L. R. 3 Eq. 541; V. C. W.) out execution, except as a trustee for himself same interest. Inquiries consequently directed. Rights of judg equity. Cannot take than debtor had. And that being the opinion of the Court, an inquiry was directed upon the petition for leave to issue execution, and in the suit, whether it would be for the benefit of the debenture-holders that any proceedings should be taken by the receiver for the purpose of making such judgment available for the benefit of such creditors: (Ibid., p. 551.) The principle of this case is based upon the cases at law of Fairtitle v. Gilbert, 2 T. R. 169; and Kennett v. Westminster Improvement Commissioners, 11 Ex. 349; 25 L. J. (Exch.) 97. With respect to the rights of judgment creditors to issue ment creditors in execution against the property of the railway company, where there are subsisting mortgages and debentures charging the undertaking and tolls of the company, it may be stated that, since no judgment creditor can under his judgment take a greater interest than his greater interest debtor has in his own property: (Whitworth v. Gaugain, 3 Hare, 425; Potts v. Warwick and Birmingham Canal Navigation Co., Kay, 142; Ames v. Trustees of the Birkenhead Docks, 20 Bea. 332; and per Lord Chelmsford, C., in Wickham v. New Brunswick and Canada Railway Co., L. R. 1 P. C. 64, 75); any interest which a judgment creditor can have in such property must be subordinate to that of the mortgagees : (Legg v. Mathieson, 2 Giff, 71; 29 L. J. (Ch.) 385 ; Ames v. Trustees of the Birkenhead Docks, 23 Bea. 332; Wildy v. Mid. Hants Railway Co., 3 W. N. 61.) And therefore subject to mort gages. Similarly where a judgment creditor applied for a receiver in the case of a company who had opened their line, but had concluded an agreement with another company who were to work the line, a receiver was appointed without prejudice to the working agreement: (Contract Corporation v. Tottenham and Hampstead Junction Railway Co., 3 W. N. 242.) Receiver's right And where a receiver has been appointed, his right is prior to the prior to claim of claim of a judgment creditor under an elegit, whose whole interest in judgment credi- the land can be that only which subsists subject to the right of the receiver, and to the provisions of the railway acts: (Potts v. War tor. wick and Birmingham Canal Navigation Co., Kay, 142; Ames v. 8 & 9 VICT. c. 16. Trustees of Birkenhead Docks, 23 Bea. 332.) fere with re And a judgment creditor must not interfere with a receiver: Judgment credi(Russell v. East Anglian Railway Co., 3 M'N. & G. 125; 6 R. C. tor not to inter501,) even though the receiver have been erroneously appointed: ceiver. (Ames v. Trustees of Birkenhead Docks, Kay, 142.) judgment credi But a debenture-holder cannot by injunction prevent a judgment Debenture holder creditor from suing out an elegit, whatever the interest he may take cannot prevent a under it may be: (Russell v. East Anglian Railway Co., 3 M'N. & G. tor suing out 125; 6 R. C. 501; Perkins v. Deptford Pier Co., 13 Sim. 277; 3 R. C.95. elegit. Under an elegit so obtained it seems that the chattels and rolling- What can be stock could (in cases not coming under the Railway Companies elegit. Act, 1867, s. 4) be seized: (Gardner v. London, Chatham, and Dover Railway Co., L. R. 2 Eq. 201; Bowen v. Brecon Railway Co., L. R. 3 Eq. 541, 548, per Sir W. P. Wood, V. C.) seized under But now, under the fourth section of the Railway Companies Protection of Act, 1867, (30 & 31 Vict. c. 127,) the engines, tenders, carriages, rolling-stock and plant under s. 4 trucks, machinery, tools, fittings, materials, and effects, constituting of the Railway the rolling-stock and plant used or provided by a company for the Companies Act, purposes of the traffic on their railway, or of their stations, or work- 1867. shops, is not, after their railway or any part thereof is open for public traffic, liable to be taken in execution at law or in equity, at any time after the passing of the act, i.e., 20th of August 1867, and before the 1st of September 1868, (extended to 1st September 1870 Expires 1st Sepby 31 & 32 Vict. c. 79,) where the judgment on which execution tember 1870. issues is recorded in an action on a contract entered into after the passing of the act, or in an action not on a contract, commenced after the passing of the act; and a receiver and manager may be appointed. See post, the Railway Companies Act, 1867, s. 7. executions, not which execution And section 5 provides that if, in any case where property of a Questions as to company has been taken in execution, a question arises whether or withstanding act, not it is liable to be so taken notwithstanding the act, the same to be determined may be heard and determined on an application by either party by by Court from summons, in a summary way, in the Court out of which the execu-issued. Xu tion issued, or if the Court is one of the Superior Courts of Law, then to a judge of any one of those Courts, and such determination shall be final and binding. In the recent case of Blackmore v. Yates, (36 L. J. (Exch.) 121; L. R. 2, Exch. 225; 15 W. R. 750,) the question of the legality of an assignment of all the rolling-stock was discussed, but not decided; but it was held that such an assignment in lieu of a judgment in an action on a Lloyd's bond was not in issue on an interpleader issue between the assignee of the rolling-stock and a judgment creditor who had seized the stock in execution. tion. All that the mortgagee himself is entitled to take is the tolls of The tolls may be the undertaking, the word undertaking being used in the sense laid taken in execudown by Lord Cairns in the passage quoted above, (p. 2, ante,) as the going concern of the railway from which alone profits can be earned: (Gardner v. London, Chatham, and Dover Railway Co., L. R. 2 Ch. 201, 217; and per Sir W. P. Wood, V. C., in Bowen v. Brecon Railway Co., L. R. 3 Eq. 541, 548 ;) and he may have a receiver of the tolls appointed: (Fripp v. Chard Railway Co., 11 Hare, 241; see s. 53, post, p. 53.) 8 & 9 VICT. c. 16. But not the un The works, rails, fixtures, &c., which form part of the completed work of the undertaking are not liable to be seized by judgment dertaking itself. creditors; and an injunction to that effect would be granted: (Legg v. Mathieson, 2 Giff. 71; 29 L. J. (Ch.) 385; Gardner v. London, Chatham, and Dover Railway Co., L. R. 2 Ch. 201.) No priority as ture-holders, or As between debenture-holders and one of their number who has between deben- obtained judgment in an action on his debenture, the latter does not between one who thereby obtain any priority over the other debenture-holders, since the words of s. 42 expressly exclude any preference in respect of priority of time; and the meaning of the Legislature was that "parity of possession should be given to parity of security :" (Bowen v. Brecon Railway Co., L. R. 3 Eq. 541.) has obtained judgment, and the rest. No priority by Nor will a mortgage, taken in addition to a debenture, give the taking mortgage holder of such debenture any priority where the Act provides that debenture-holders shall be paid pari passu: (De Winton v. Mayor, &c., of Brecon, 28 Bea. 200; 5 Jur. N. §. 882; 28 L. J. (Ch.) 600.) in addition to debenture. 23 & 24 Vict. c. 38. Registration of writ of execution. 27 & 28 Vict. c. 112. Delivery of land in execution. Sale by order of the Court of Chancery: s. 4. On petition. To be served on debtor only. Inquiries direct As to the mode in which judgments may be made available against the land : By s. 1 of 23 & 24 Vict. c. 38, no judgment is a charge upon land, unless execution have issued, and the writ upon which execution has issued registered. By 27 & 28 Vict. c. 112, no judgment is a charge upon land until the land has been actually delivered in execution by elegit, and the writ registered; and by s. 4 of the same act, every creditor to whom any land of his debtor shall have been actually delivered in execution, by virtue of any judgment, and whose writ or other process of execution shall have been duly registered, is entitled forthwith, or at any time afterwards, while the registry of such writ or process continues in force, to obtain from the Court of Chancery, upon petition in a summary way, an order for the sale of his debtor's interest in such land. The petition need not be served upon any person besides the debtor. Upon such petition the Court directs all such inquiries to be made ed on hearing of as to the nature and particulars of the debtor's interest in such land, and his title thereto, as appear to be necessary or proper. petition. Application of of railway com- With regard to the applicability of the provisions of this Act to the case of railway companies upon petitions for sale under s. 4, the Court has in every case directed inquiries to be made: (In re Hull and Hornsea Railway Co., L. R. 2 Eq. 262; In re Bishop's Waltham Railway Co., L. R. 2 Ch. 382; Gardner v. London, Chatham, and Dover Railway Co., Ex parte Grissell, L. R. 2 Ch. 385; and see In re Ventnor Harbour Co., Ex parte Fleming, 1 W. N. 19; 13 L. T. N. S. R. Bishop's Wal- 793;) and in the case of In re Bishop's Waltham Railway Co., (ubi tham, R.C. supra,) when by the inquisition it was found that the company had no lands within the bailiwick, except the railway, the station, and goods shed, Sir G. J. Turner, L. J., observed that if the property of the debtor which is taken in execution is not capable of being sold, he doubted whether the case came within the act; that, at all events, it was going too far to say that the Court is bound to order a sale when it does not appear what saleable interest there is, or whether the company have any saleable interest; and the only inquiry directed was what the interest of the company was in the property found by the inquisition. Rights of Mortgagees and Obligees. 49 But where the land of the company had been already exhausted, 8 & 9 VICT. C. 10, but not delivered in execution, under two prior writs of elegit, a Where there are petition by a third judgment creditor, who had also sued out an prior elegits. elezit, was dismissed with costs, since he could not have the benefit of s. 4 of the act until the prior elegits had been got rid of: (In re Cowbridge Railway Co., 3 W. N. 14.) Where it had been decided that certain superfluous lands (situate in a town, and therefore not subject to any right of pre-emption) were not included in the security of a debenture, (Gardner v. London, Chatham, and Dover Railway Co., L. R. 2 Ch. 201,) and a judgment creditor, who had extended certain of such lands, had applied by petition for an order for sale, inquiries were directed in the following form : "1. An inquiry what is due to the petitioner under or by virtue Form of inquiries of his judgment. directed. nature thereof. "2. An inquiry what lands and property have been extended under What lands exor by virtue of the writ of elegit in the petition mentioned, and what tended, and the are the nature and particulars of the interest of the said company in such lands and property, and of their title thereto; and whether any, and which, of such lands are superfluous, and not required for the purposes of the undertaking of the said company. brances. 3. An inquiry whether there are any, and, if any, what, liens, As to incumcharges, or incumbrances upon the said lands, or any, and what part thereof, and what are their priorities, and what is due on account thereof respectively." (Ex parte Grissell, L. R. 2 Ch. 385.) executed. And where there are writs of fi. fa. issued, but not in the hands Writs in hands of the sheriff, a writ of elegit subsequently issued, but actually in of sheriff first the hands of the sheriff, will be first executed: (Guest v. Cowbridge Railway Co., 3 W. N. 235.) Where, in a late case, judgment had been entered up on an elegit, registered under s. 4, in which the sheriff returned nulla bona, and the land of the company had already been extended under a former elegit, it was held that the prior elegit must be got rid of, and that the subsequent judgment creditor might then apply to the Court for a sale (In re Cowbridge Railway Co., L. R. 5 Eq. 413.) And where a judgment creditor had sued out an elegit under 1 & Under 1 & 2 2 Vict. c. 110, the company having no land except that on which the Vict. c. 110. railway was constructed, and he filed a bill for an account of what was due to him, and for a sale of the lands, the Master of the Rolls refused to make an order for sale, but directed inquiries similar to those directed in the cases cited above: (Furness v. Caterham Railway Co., 25 Bea. 614; 27 L. J. (Ch.) 771.) calls, notwith XLIII. No such mortgage (although it should comprise Application of future calls on the shareholders) shall, unless expressly so standing provided, preclude the company from receiving and apply- mortgage. ing to the purposes of the company any calls to be made by the company. XLIV. The respective obligees in such bonds shall, Rights of proportionally according to the amount of the moneys D obligees. |