30 & 31 VICT. c. 127. Notice in Form of notice. Stay of executions, &c. Costs of application to stay actions. Assent by mortgagees, &c. . "Shall be deemed to be assented to," &c. In a subsequent case, the Master of the Rolls, although expressing some doubt on the subject, refused to restrain an unpaid vendor from pursuing his remedies under an order obtained in a suit for specific performance, the taxation of the costs of the suit not being completed at the time of passing of the special act mentioned above: (Wootton v. London, Chatham, and Dover Railway Co., 3 W. N. 203.) But in a case at law, it was held that a taxation of costs is a proceeding within the meaning of s. 4 of the same special act, and must be discontinued accordingly: (Reg. v. London, Chatham, and Dover Railway Co., 3 W. N. 39; 16 W. R. 487.) VIII. Notice of the filing of the scheme shall be published in the Gazette (a). (a) See form of notice in the 3d schedule to the General Order (24th January 1868) under this act, post, p. 515. IX. After such publication of notice no execution, attachment, or other process against the property of the company shall be available without leave of the court, to be obtained on summons or motion in a summary way (a). (a) The question whether execution by general creditors and unpaid landowners may be stayed under s. 7, and the present section is fully considered by the case of Re Cambrian Railways Co.'s Scheme, L. R. 3 Ch. 278; the grounds of that decision will be found in the notes to s. 7, ante. It has been held that the court has no jurisdiction to give costs on an application under this section, although it may be of opinion that the application is a proper one : (Re Devon & Somerset Railway Co., 2 R. 6 Eq. 610; 17 W. R. 133.) It was said, however, in a previous case, that the costs will be dealt with in the same manner as in administration suits, where any step taken by a creditor, after notice of a decree, is taken at his peril, and he has to pay the costs of any application to stop it: (Per Wood, V.-C., in Re Cambrian Railways Co.'s Scheme, L. R. 3 Ch. 280, n.) X. The scheme shall be deemed (a) to be assented to by the holders of mortgages or bonds issued under the authority of the company's special acts when it is assented to in writing by three-fourths in value of the holders of such mortgages or bonds, and shall be deemed to be assented to by the holders of debenture stock of the company when it is assented to in writing by three-fourths in value of the holders of such stock. (a) The words "shall be deemed to bs assented to" were held by Wood, V.-C., to justify the inference that the assents are actually required: (See Re Cambrian Railways Co.'s Scheme, L. R. 3 Ch. 284, n.) C. 127. Assent by hold XI. Where any rentcharge or other payment is charged 30 & 31 Vior. on receipts of or is payable by the company in consideration of the purchase of the undertaking of another company, ers of rent the scheme shall be deemed to be assented to (a) by the charge, &c. holders of such rentcharge or other payment when it is assented to in writing by three-fourths in value of such holders. (a) See note to last section. ference share XII. The scheme shall be deemed to be assented (a) to Assent by preby the guaranteed or preference shareholders of the com-holders. pany when it is assented to in writing as follows:-If there is only one class of guaranteed or preference shareholders, then by three-fourths in value of that class, and if there are more classes of guaranteed or preference shareholders than one, then by three-fourths of each such class. (a) See note to s. 10, ante. holders. XIII. The scheme shall be deemed to be assented to (a) Assent by by the ordinary shareholders of the company, when it is ordinary shareassented to at an extraordinary general meeting (b) of the company called for that purpose. (a) See note to s. 10, ante. (b) As to extraordinary general meetings, see the Companies Extraordinary Clauses Act, 1845, ss. 68-70, ante, pp. 63 and 64. general meet ings. ing company. XIV. Where the company are lessees of a railway, the Assent by leas scheme shall be deemed to be assented to (a) by the leasing company, when it is assented to as follows: In writing by three-fourths in value of the holders of mortgages, bonds, and debenture stock of the leasing company: If there is only one class of guaranteed or preference shareholders of the leasing company, then in writing by three-fourths in value of that class, and if there are more classes of guaranteed or preference shareholders in the leasing company than one, then in writing by three-fourths in value of each such class: By the ordinary shareholders of the leasing company at an extraordinary general meeting of that company specially called for that purpose. (a) See note to s. 10, ante. XV. Provided that the assent to the scheme of any class Assent of credi of holders of mortgages, bonds, or debenture stock, or of unnecessary. tors not affected c. 127. 30 & 31 VICT. any class of holders of a rentcharge, or other payment as aforesaid, or of any class of guaranteed or preference shareholders, or of a leasing company, shall not be requisite in case the scheme does not prejudicially affect any right or interest of such class or company. Application for confirmation of scheme. Confirmation of scheme. Right of creditors to be heard. Simple contract creditors. Form of petition. How company represented. Hearing. XVI. If at any time within three months after the filing of the scheme, or within such extended time as the Court from time to time thinks fit to allow, the directors of the company consider the scheme to be assented to as by this act required, they may apply to the Court by petition in a summary way for confirmation of the scheme (a). Notice of any such application when intended shall be published in the Gazette. (a) See note to next section. XVII. After hearing the directors, and any creditors, shareholders, or other parties whom the Court thinks entitled to be heard (a) on the application, the Court, if satisfied that the scheme has, within three months after the filing of it, or such extended time (if any) as the Court has allowed, assented to as required by this act, and that no sufficient objection to the scheme has been established, may confirm the scheme. (a) In Re Bristol & North Somerset Railway Co., L. R. 6 Eq. 448, 451, Vice-Chancellor Giffard refused to exclude any creditor who had a substantial interest from being heard, and therefore overruled an objection as to two debenture creditors, although they had not entered an appearance, as directed by the 19th rule of the General Order under this act. (See this order, post, p. 509.) And see per V.-C. Wood, in Re Cambrian Railways Co.'s Scheme, L. R. 3 Ch. 286, where it to be his Honour's opinion that simple contract creditors appears are entitled to be heard. As to the form of the petition for confirmation of the scheme, see the 15th rule under the General Order, post, p. 508. By s. 16 of the Order, the petitioner presenting the petition are to be treated as representing the company, and the company are not otherwise to appear on the hearing of such petition, post, p. 598. By rule 17, application to appoint a day for hearing the petition is to be made in Chambers, and each day is not to be before the expiration of three weeks from the date of the application; and proAdvertisements. Visions for advertising notices of the presentation of the petition Order. are added; by rule 18, the petition is not to come on for hearing for fourteen days after the insertion of the notices; and the notices are to be repeated weekly. See the Order, post, p. 508. As to the order for confirmation, notice of such order, see rules 21 and 22 of the General Order, post, p. 510, and rule 33 (post, p. 512), as to the drawing up of orders. Confirmation and Enrolment of Proposed Scheme. 495 The Court, under this section, confirmed a scheme enabling a railway company to create and issue debenture stock to an amount 30 & 31 VIOT. c. 127. in excess of their powers under their acts, and providing for pay- Scheme conment of creditors in such stock, and other matters, nine-tenths in firmed. value of the creditors appearing and consenting to the scheme: (Re Teign Valley Railway Co., 17 L. T. N. S. 201.) But a scheme, containing a clause providing that all creditors, Scheme not conexcept unpaid landowners and judgment creditors on elegit, should firmed. receive in discharge of their claims fully paid up shares to the amount of their claims, and that they should thereupon give a release for their debts, and give up their securities, was not confirmed on the ground that its effect was to turn creditors into shareholders, and to extinguish their debts, and as it could not, in accordance with the decision of Lord Cairns, L. J. in the Cambrian Railways Scheme, (ubi supra,) bind all the creditors of the company: (In re Bristol & North Somerset Railway Co., L. R. 6 Eq. 448.) See also the notes to s. 7, ante. It would seem that the Court has jurisdiction, after notice of the Filing of new filing of and the assent of creditors to a scheme, which the Court scheme. does not consider a proper one, to allow a new scheme to be filed without exceeding the period of three months aliowed before confirmation of the original scheme: (Per V.-C. Wood, in Re Cambrian Railways Co.'s Scheme, L. R. 3 Ch. 289, n.) effect of scheme. XVIII. The scheme when confirmed shall be enrolled Enrolment and in the Court, and thenceforth the same shall be binding and effectual to all intents, (a) and the provisions thereof shall, against and in favour of the company and all parties assenting thereto or bound thereby, have the like effect as if they had been enacted by Parliament. (a) There can be no doubt as to the right of appeal from decisions Appeal. with respect to petitions for confirmation of schemes: (Per V.-C. Wood in Re Cambrian Railways Co.'s Scheme, L. R. 3 Ch. 290, n.) By rule 23 of the General Order under this act, no order Enrolment. is to be enrolled for thirty days from the day of the same having been pronounced; by rule 24 a petition for a rehearing, and not the Rehearing. entering of a caveat, is the mode of proceeding by way of appeal, and such petition is to be presented within the thirty days limited for enrolment and rules 25-28 regulate the procedure with respect to petitions for rehearing and enrolment. (See post, pp. 510, 511.) Vice-Chancellor Giffard, pending a motion for leave to file a peti- Enrolment tion for a rehearing before the Lords Justices, restrained the enrol- restrained. ment of an order confirming a scheme: (In re Devon & Somerset Railway Co., L. R. 6 Eq. 615.) XIX. Notice of the confirmation and enrolment of the Notice of conscheme shall be published in the Gazette. firmation of scheme. XX. The company shall at all times keep at their prin- Company to cipal office printed copies of the scheme, when confirmed keep printed and enrolled, and shall sell such copies to all persons desir- for sale. copies of scheme 30 & 31 VICT. ing to buy the same at a reasonable price, not exceeding c. 127. Penalty for neglect. Provision for cases where sixpence for each copy. If the company fail to comply with this provision they shall be liable to a penalty not exceeding twenty pounds, and to a further penalty not exceeding five pounds for every day during which such failure continues after the first penalty is incurred, which penalties shall be recovered and applied as penalties under the Railways Clauses Consolidation Act, 1845, are recoverable and applicable. XXI. Where a company whose principal office is situate railways or part in England have a railway or part of a railway in Scotland (a), the following provisions shall have effect: in Scotland. Where Scotch company have of railway in England. (1.) Any scheme under this act shall be filed in the Court of Chancery in England: (2.) Where, after the filing of the scheme, any person who is not amenable to the jurisdiction of the Court of Chancery in England brings any action against the company in Scotland, the Court of Session may, on the application of the company by petition in a summary way, sist, stay, or interdict the same on such terms as the Court thinks fit: (3.) Notice of the filing of the scheme shall be published in the Edinburgh Gazette, and after such publication no diligence against the property of the company in Scotland shall be available for any person who is not amenable to the jurisdiction of the Court of Chancery in England without the leave of the Court of Session, to be obtained on petition in a summary way: In this section the term "Court of Session" means either division of the Court of Session, or in time of vacation the Lord Ordinary officiating on bills. (a) By the Railway Companies (Scotland) Act, 1867, (30 & 31 Vict. c. 126,) s. 21, it is enacted that "where a company whose railway or part principal office is situate in Scotland have a railway or part of a railway in England, the following provisions shall have effect: (1.) Any petition for the approval and confirmation of a scheme under this act shall be presented to the Court of Session: (2.) When, after the presenting of any such petition, any person who is not amenable to the jurisdiction of the Court of Session brings any action or institutes any other proceeding against the company in England, the Court of Chancery may, on the application of the company on summons or motion, in a summary way restrain the saine on such terms as the Court may think fit. |