received and I think it is thus severable from the con tract for breach of which this action is brought. Judgment for plaintiff. Friday, HENRY BOLCKOW and JOHN VAUGHAN against By stat. 6 & 7 DEBT. Five counts on five bonds, under the seal of W. 4. c. cxii. a pier com pany were authorized to of the under taking; or, if they thought fit, on bonds made in such manner and payable at such time as they thought fit. And the act provided that all persons, owners of any such securities by way defendants. The defendants craved oyer of the bonds and their conditions; and they were set out. They were all in the same form. The following is a copy of one of the bonds. "No. 50. "Herne Bay Pier Company Bond 1007. Know all Men that the Herne Bay Pier Company are held and firmly bound to Henry Bolckow and John Vaughan, of" &c., "their executors, administrators and assigns, in the penal sum of Two hundred pounds of lawful money of Great Britain, to be paid to the said Henry Bolckow and John Vaughan, their certain attorney, executors, administrators or assigns: for which payment, well and truly to be made, the said Herne Bay Pier Company do hereby bind themselves and their successors profits," "with- firmly by these presents, sealed with the common seal of out any prefer- the said Herne Bay Pier Company this 1st March 1848." of mortgage or rates, tolls, and ence by reason of the priority of date of any such securities or on any other account whatsoever." Debt, on a bond under the seal of the Company. The condition, which was set out on oyer, recited the above enactment, and was for the payment of money on a day certain. On demurrer : Held; that an action lay on such a bond; and plaintiff was entitled to judgment. Quare. Whether the effect of the clause forbidding a preference might not be to restrain the issuing of execution on that judgment. 1852. BOLCKOW V. HERNE BAY The condition was as follows: "Whereas, in and by an Act of Parliament" &c. (6 & 7 W. 4. c. cxii.) (a), "entitled" &c., "it was, among other things, enacted that, if the said Company should think it expedient to borrow the Pier Company. sum of 30,000l., or any part thereof, by bond or bonds under their common seal, it should be lawful for them so to do; and the money secured by such bond or bonds should be made payable in such manner and at such time or times and at such legal or less rate of interest as the said Company should think proper; and the rents, rates, tolls and profits which should from time to time arise in respect of the said undertaking should be a security for the money so to be borrowed as aforesaid, with interest, to the person or persons who should from time to time be entitled to such securities and the principal money and interest thereby secured: and all persons to whom any such securities, either by way of mortgage, as therein mentioned, or bond, should be given or transferred, or in whom they should become so vested, should be equally entitled to a claim or lien on the said rents, rates, tolls and profits in proportion to the respective sums mentioned thereby to be secured, and without any preference by reason of the priority of date of any such securities or on any other account whatsoever. And (a) Local and personal public. "For altering, amending, and enlarging the powers and provisions of an Act for making and maintaining a pier or jetty and other works at Herne Bay in the parish of Herne in the county of Kent; and for giving additional powers to the Herne Bay Pier Company." See sect. 9 in the argument, post, p. 76. Sect. 11 directs payment of the interest of money borrowed on mortgage or bond in preference to dividends; and, in case of non-payment of interest for thirty days after demand, empowers two justices to appoint a receiver of the rents, rates, tolls and profits, to the use of the persons to whom the interest is due; "but in case the power aforesaid shall not be resorted to the interest so due and unpaid as aforesaid may be sued for and recovered, with costs, by action of debt in any of His Majesty's Courts of record at Westminster." 1852. BOLCKOW V. HERNE BAY whereas the said Company think it expedient to borrow part of the sum of 30,000l. by bond or bonds under their common seal and pursuant to the said Act of Parliament, Pier Company. and, in exercise and execution of the power and authority to them thereby given, they have agreed to borrow the sum of 100l. part thereof from the said Henry Bolckow and John Vaughan: Now the condition. of the above obligation is such, that, if the above bounden Herne Bay Pier Company do and shall well and truly pay or cause to be paid unto the said Henry Bolckow and John Vaughan, their executors, administrators or assigns, at the office for the time being of the said Herne Bay Pier Company, the said sum of one hundred pounds of lawful money of Great Britain" on the 1st March 1851, "and shall well and truly pay interest upon and for the same at and after the rate of five pounds for one hundred pounds for a year, by even and equal half yearly payments on the first day of September and the first day of March in each and every year, without any deduction or abatement whatsoever except property or income tax, then and in such case the above written bond or obligation shall be void; but otherwise the same shall be and remain in full force and virtue." Demurrer. Joinder. Willes, for the defendants. The question turns on the construction of stat. 6 & 7 W. 4. c. cxii. Power is given by the statute to borrow 30,000l. on mortgage; and then, by sect. 9, it is enacted, "that if the said Company shall think it expedient to borrow the said sum of 30,000l. or any part thereof by bond or bonds under their common seal, it shall be lawful for them so to do, and the money secured by such bond or bonds shall be made payable in such manner and at such time or times, and at such 1852. BOLCKOW V. HERNE BAY legal or less rate of interest, as the said Company shall think proper, and the rents, rates, tolls, and profits which shall from time to time arise in respect of the said undertaking shall be a security for the money so to be Pier Company. borrowed as aforesaid, with interest, to the person or persons who shall from time to time be entitled to such securities and the principal money and interest thereby secured; and all persons to whom any such securities either by way of mortgage or bond shall be given or transferred, or in whom they shall become vested, shall be equally entitled to a claim or lien on the said rents, rates, tolls, and profits, in proportion to the respective sums mentioned thereby to be secured, and without any preference by reason of the priority of date of any of such securities or on any other account whatsoever." The question is, whether an action at law is the proper remedy for enforcing a bond granted under this section. It is decided that no action at law lies on a mortgage under such an act; Pontet v. The Basingstoke Canal Company (a). Nor can the mortgagee maintain ejectment; Doe dem. Myatt v. The St. Helen's Railway Company (b). If the creditor, on such a bond, obtains judgment, he must be allowed to issue execution by elegit if he will; and thus he may seize the lands of the Company; which a mortgagee cannot do. To permit that would be to defeat that part of the section which enacts that all the mortgage and bond creditors shall be equally entitled to a lien on the rents &c. without any preference on any account whatsoever. [Lord Campbell C. J. It struck me, on reading the paper book, that these words might have effect in restraining the execution to be issued on (a) 3 New Ca. 433. (b) 2 Q. B. 364. 1852. BOLCKOW V. HERNE BAY the judgment when obtained, rather than in barring the action.] There is extreme difficulty in giving them any such effect, or in saying that the statute permits the Pier Company. plaintiff to obtain a judgment which is to be fruitless. The effect of a similar enactment was much discussed in equity in Russell v. The East Anglian Railway Company (a). The result is that these words do not give an equitable lien; and if they do not bar the judgment they seem inoperative. Hart v. Eastern Union Railway Company (b) was not on a similar act: that was a railway company carrying on a trade as carriers. This is a pier company not carrying on a trade. Joseph Addison, contrà. The plaintiff is at all events entitled to judgment; for the bond is given to secure interest; and by sect. 11 interest may be recovered by a summary proceeding, or in an action of debt. But the action lies even for the principal debt; Hart v. Eastern Union Railway Company (b). What the effect of the enactment may be on the execution is not now a question before the Court. Willes, in reply. Sect. 11 applies only when the interest has been in arrear thirty days, and after demand; which is not averred on this record. The special provisions there given for recovering the interest rather fortify the argument that an action at law was not intended to be given for the principal. Lord CAMPBELL C. J. All that we are now called on (a) 3 Macn. & G. 125. (b) 7 Exch. 246. Affirmed in Exchequer Chamber, Trinity term, 1852. (Not yet reported on error.) |