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c. 114, SS. 1-3.

THE ABANDONMENT OF RAILWAYS

ACT, 1869.

32 & 33 VICT. c. 114.

32 & 33 Vict. An Act to amend the Law relating to the Abandonment of Railways and the Dissolution of Railway Companies. [11th August, 1869.]

Short title.

Interpretation.

Construction of Act.

13 & 14 Vict. c. 83.

30 & 31 Vict.

cc. 126, 127.

WHEREAS by the provisions of The Abandonment of Railways Act, 1850, as revived and amended by The Railway Companies (Scotland) Act, 1867, and The Railway Companies Act, 1867, a railway company may if their whole railway is authorised to be abandoned be wound up under The Companies Act, 1862; and doubts have arisen whether such company can be so wound up on the petition of a creditor or of any person except a shareholder, and it is expedient to remove such doubts and otherwise to amend

the said Acts:

Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. This Act may be cited as "The Abandonment of Railways Act, 1869."

2. In this Act "the court" means the High Court of Chancery in England, the Court of Chancery in Ireland, or the Court of Session in Scotland, according as the railway was authorised to be made in England, Ireland, or Scotland respectively.

3. This Act shall be construed as one, so far as it extends to Scotland, with "The Abandonment of Railways Act, 1850," as amended by "The Railway Companies (Scotland) Act, 1867," and so far as it extends to England or Ireland with "The Abandonment of Railways Act, 1850," as amended by "The Railway Companies Act, 1867," and those Acts are in this Act referred to as the principal Acts.

pany may be

Vict.

c. 89, and

4. Where a warrant has been granted under the principal Acts 32 & 33 Vict. for the abandonment of the whole railway of any railway company c. 114, ss. 4, 5. a petition for winding up the affairs of such company may be pre- Petition for sented under The Companies Acts, 1862 and 1867, by the company, winding up of or by any person who under the last-mentioned Acts is authorised railway comto present a petition for winding up a company, or by any person presented upon whose application the Board of Trade may proceed in pur- under 25 & 26 suance of section thirty-two of The Railway Companies (Scotland) 30 & 31 Vict. Act, 1867, and The Railway Companies Act, 1867, as the case c. 131. may be, and for that purpose the railway company whose railway is so authorised to be abandoned shall be deemed to be an unregistered company which may be wound up under The Companies Acts, 1862 and 1867, and the provisions of the principal Acts which remain in force relating to winding up shall be construed as if The Companies Acts, 1862 and 1867, and the winding-up provided by this section, were therein referred to.

Under section 31 of the Abandonment of Railways Act, 1850, it was held that a creditor could not present a petition for winding up the company after a warrant for abandonment (In re W. Kent Extension Ry. Co., 8 Eq. 356).

For the form of order for winding up a railway company after a warrant for abandonment, see Re Skipton & Wharfedale Ry. Co., 20 L. T. N. S. 359.

Section 199 of the Companies Act, 1862, enacts in effect that any company Winding up "except railway companies incorporated by Act of Parliament, consisting of more of railway than seven members, and not registered under this (the Companies) Act" may be company. wound up under the Companies Act.

It has been held that a company whose principal object was the construction of docks, but having power also to make a branch railway, was not a railway company within the above exception (In re Exmouth Docks Co., 17 Eq. 181).

It has also been held that where the works authorised to be constructed by the company are for the public good, and the Act of incorporation gives creditors specific remedies, the court will not make a winding-up order under the Companies Act, 1862, until the specific remedies have been tried (In re Exmouth Docks Co., 17 Eq. 181; In re Herne Bay Waterworks Co., 10 Ch. D. 42).

The question whether a railway company, after being registered under the Companies Acts, 1862 and 1867, can be ordered to be wound up under those Acts without a warrant for abandonment, appears in England to be still open.

It has, however, been held in Ireland that in such a case a winding-up order can be made (In re Ennis & W. Clare Ry. Co., 3 L. R. Ir. 94. See Ward v. Sittingbourne & Sheerness Ry. Co., 9 Ch. 488).

5. If the warrant for the abandonment was made on condition Application of that the money deposited as security for the completion of the deposit, &c. railway, or the stocks, funds, or securities in which the same is invested, or the money secured by any bond conditioned for the completion of the railway, or for payment of money in default thereof, should be applied as part of the assets of the company, the court may, if it think fit, direct that such money, stocks, funds, and securities shall not be applicable for the payment of any debt or part of a debt which, regard being had to what is fair and reasonable as between all parties interested under all the circumstances of the case, appears to the court to have been incurred on account of the promotion of the company.

Any person who provided such money or any part thereof, or who entered into such bond, may, subject to any directions or rule of the court, attend all proceedings under this section and

32 & 33 Vict. other proceedings in the winding-up, and apply to the court to c. 114, ss. 6, 7. act under this section.

Transfer of deposit and

bond.

For the cases as to the application of the deposit see the notes to section 5 of the Parliamentary Deposits Act (9 Vict. c. 20) ante.

The costs of a petition by the depositor for payment out of a portion of the deposit has been allowed against the general assets, of which the residue of the deposit formed part (In re Laugharne Ry. Co., 12 Eq. 454).

Where the deposit has been made with borrowed money, the lenders are not entitled to have their rights specially provided for (Re Waterford, &c. Ry. Co., I. R. 4 Eq. 490).

The liquidator of the company has no right to set off a debt due to a promoter against the money payable by the promoter under his bond (In re Dublin & Rathcoole Ry. Co., 1 L. R. Ir. 98).

6. Where the warrant for abandonment is made on condition assignment of that the money deposited as security for the completion of the railway, or the stocks, funds or securities in which the same is invested, or the money secured by any bond conditioned for the completion of the railway or for payment of money in default thereof, shall be applied as part of the assets of the company, the following provisions shall have effect:

Saving for rights to

residue of deposit.

(1.) The Court in which the company is being wound up may order such money, stocks, funds, or securities, or so much thereof as is required to be applied as assets of the company, to be paid, transferred, or delivered out to the official liquidator, and unless the Court is satisfied that the same or any part thereof are not required to be applied as assets, shall not order the same or any part thereof to be paid, transferred, or delivered out to any other person:

(2.) The commissioners of her Majesty's treasury, upon the application of the official liquidator, made with the sanction of the Court, may, if they think fit, assign the bond to the official liquidator, and upon such assignment the bond shall be deemed to have been entered into with the official liquidator in his official name, and with his successors in that office, and may, subject to the sanction of the Court, be enforced accordingly:

(3.) Any bond so assigned may, after a sufficient sum has been paid thereunder as assets of the company, be cancelled by the Court.

For the cases as to the application of the deposit see the notes to section 5 of the Parliamentary Deposits Act, 9 Vict. c. 20.

For the construction of an Act regulating the application of the deposit made by the promoters of a tramway, see In re Bradford Tramways Co., 2 Ch. D. 373; 4 Ch. D. 18; and In re Lowestoft, Yarmouth & Southwold Tramways Co., 6 Ch. D. 484.

7. Nothing in the principal Acts or in this Act shall affect any right to that part of the money deposited as security for the completion of the railway, or of the stocks, funds, or securities on which the same is invested, or of the money secured by any bond conditioned for the completion of the railway, which is not applied in payment of the debts and liabilities of the company, or required for that purpose.

32 & 33 Vict.

c. 114,

ss. 8-10.

Application

8. Where a company, no part of the railway of which is open for traffic, has been required by any judgment or order of any court to pay a sum of money to any person or body corporate, and has made default in such payment, the Board of Trade may proceed for abandonunder the principal Acts, upon the application of such person or ment by body, in the same manner as if such person or body were mentioned judgment in that behalf in the said section.

The Abandonment of Railways Act, 1850, is, by The Railway Companies Act, 1867, s. 31, extended to all companies authorised to make railways by Acts passed before the session of the summer of 1867.

It appears, therefore, that this section applies only to such companies, and this is the view taken by the Board of Trade (In re Birmingham & Lichfield Junction Ry. Co., 18 Ch. D. 155).

creditor.

sect. 17 of

9. The notice given in pursuance of section seventeen of The Notices under Abandonment of Railways Act, 1850, may, where there is no 13 & 14 Vict. secretary of the company, or no office of the company, require c. 83. claims or demands to be sent to such person or to such place as the Board of Trade direct.

[10 is repealed by 46 & 47 Vict. c. 39.]

тт

c. 19, ss. 1-3.

THE

RAILWAYS (POWERS & CONSTRUCTION)
ACTS, 1864, AMENDMENT ACT, 1870.

33 & 34 VICT. c. 19.

33 & 34 Vict. An Act to amend "The Railway Companies Powers Act, 1864," and "The Railways Construction Facilities Act, 1864." [20th June, 1870.]

Short title.

Powers of
Board of

Trade where
notice of
opposition
lodged.

WHEREAS it is expedient to amend "The Railway Companies Powers Act, 1864," and also "The Railways Construction Facilities Act, 1864:"

Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. This Act may be cited for all purposes as "The Railways (Powers and Construction) Acts, 1864, Amendment Act, 1870." [2 is repealed by 46 & 47 Vict. c. 39.]

3. Any railway or canal company, which for the purposes of this Act shall include the owners, lessees, or proprietors of any canal or inland navigation, may, in case it desires to be heard by counsel, agents, and witnesses against any application for a certificate under The Railway Companies Powers Act, 1864, or for a certificate authorising any proposed undertaking under The Railways Construction Facilities Act, 1864 (each of which Acts is in this Act respectively referred to as the Act of Application), lodge at the office of the Board of Trade, within the time prescribed by the schedule to this Act annexed, a notice in writing to that effect (in this Act referred to as a notice of opposition), in the forms set forth in the same schedule, with such variations as circumstances require.

Where a notice of opposition has been lodged the Board of Trade may nevertheless, if they think fit, proceed upon the application, but they shall in such case settle a provisional certificate in accordance with the provisions of this Act.

Every provisional certificate under this Act shall be settled in

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