Mortgages and bonds to be stamped. Rights of mortgagees. Application of calls, notwithstanding mortgage. been subscribed or paid up, and a copy of the order of a general meeting of the company authorizing the borrowing of any money, certified by one of the directors or by the secretary to be a true copy, shall be sufficient evidence of the fact of the capital required to be subscribed or paid up having been so subscribed or paid up, and of the order for borrowing money having been made; and upon production to any justice of the books of the company, and of such other evidence as he shall think sufficient, such justice shall grant the certificate aforesaid. XLI. Every mortgage and bond for securing money borrowed by the company shall be by deed under the common seal of the company, duly stamped, and wherein the consideration shall be truly stated; and every such mortgage deed or bond may be according to the form in the schedule (C.) or (D.) to this act annexed, or to the like effect. Debentures of a waterworks company in the form here directed (Schedule (C.)) are not an interest in land within the Statute of Charitable Uses. Holdsworth v. Davenport, L. R., 3 Ch. Div. 185; 46 L. J., Ch. 20; 25 W. R. 20; 35 L. T. 467. So also of a railway company: held, that a mortgage debenture was not such an interest in land as could not be given by will to a charity. In re Mitchell, Mitchell v. Moberley, W. N. p. 191, July 28, 1877. See also Gardner v. London, Chatham and Dover Railway Co., infra. "Undertaking" of a company is the going concern created by the act. "Sums of money" are moneys ejusdem generis as the tolls, and are the earnings of the undertaking, which may be made available to satisfy the mortgage. Gardner v. London, Chatham and Dover Railway Co. (No. 1, &c.), L. R., 2 Ch. App. 201. See sect. 2, Gasworks Clauses Act, 1847. XLII. The respective mortgagees shall be entitled one with another to their respective proportions of the tolls, sums, and premises comprised in such mortgages, and of the future calls payable by the shareholders, if comprised therein, according to the respective sums in such mortgages mentioned to be advanced by such mortgagees respectively, and to be repaid the sums so advanced, with interest, without any preference one above another, by reason of priority of the date of any such mortgage, or of the meeting at which the same was authorized. XLIII. No such mortgage (although it should comprise future calls on the shareholders) shall, unless expressly so provided, preclude the company from receiving and applying to the purposes of the company any calls to be made by the company. 8 VICT. c. 16. XLIV. The respective obligees in such bonds shall, pro- Rights of portionally according to the amount of the monies secured obligees. prothereby, be entitled to be paid, out of the tolls or other perty or effects of the company, the respective sums in such bonds mentioned, and thereby intended to be secured, without any preference one above another by reason of priority of date of any such bond, or of the meeting at which the same was authorized, or otherwise howsoever. After the appointment of a receiver of a railway undertaking made in a suit on behalf of debenture holders, a debenture holder recovered judgment at law and petitioned for leave to issue execution: held, that the petitioner was not entitled to issue execution otherwise than as a trustee for himself and all other debenture holders entitled by the special acts of the company to be paid pari passu with himself, but an inquiry was directed whether it would be for the benefit of the debenture holders that any proceedings should be taken by the receiver for the purpose of Bowen v. Brecon Railway Co., making the judgment available for them. Ex parte Howell, L. R., 3 Eq. 541. mortgages and bonds. XLV. A register of mortgages and bonds shall be kept by Register of the secretary, and within fourteen days after the date of any such mortgage or bond an entry or memorial, specifying the number and date of such mortgage or bond, and the sums secured thereby, and the names of the parties thereto, with their proper additions, shall be made in such register; and such register may be perused at all reasonable times by any of the shareholders, or by any mortgagee or bond creditor of the company, or by any person interested in any such mortgage or bond, without fee or reward. mortgages and XLVI. Any party entitled to any such mortgage or bond Transfers of may from time to time transfer his right and interest therein bonds to be to any other person; and every such transfer shall be by deed stamped. duly stamped, wherein the consideration shall be truly stated; and every such transfer may be according to the form in the schedule (E.) to this act annexed, or to the like effect. Stamp duties on mortgages or bonds and transfer of such securities are now regulated by the Stamp Act, 1870, sects. 104 et seq., and are subject to an ad valorem duty of 2s. 6d. per cent. on the principal security, and 6d. per cent. on any transfer thereof. mortgages XLVII. Within thirty days after the date of every such Transfers of transfer, if executed within the United Kingdom, or otherwise and bonds to within thirty days after the arrival thereof in the United be registered. Kingdom, it shall be produced to the secretary, and there upon the secretary shall cause an entry or memorial thereof NN 2 Payment of interest on monies borrowed. Transfers of interest to be stamped. Repayment of money borrowed at a time fixed. Repayment of money borrowed where no time fixed. to be made in the same manner as in the case of the original mortgage; and after such entry every such transfer shall entitle the transferee to the full benefit of the original mortgage or bond in all respects; and no party, having made such transfer, shall have power to make void, release, or discharge the mortgage or bond so transferred, or any money thereby secured; and for such entry the company may demand a sum not exceeding the prescribed sum, or, where no sum shall be prescribed, the sum of two shillings and sixpence; and until such entry the company shall not be in any manner responsible to the transferee in respect of such mortgage. XLVIII. The interest of the money borrowed upon any such mortgage or bond shall be paid at the periods appointed in such mortgage or bond, and if no period be appointed, half-yearly, to the several parties entitled thereto, and in preference to any dividends payable to the shareholders of the company. If the debt be not repaid on the day appointed, the debenture will continue to carry interest, although not so expressed in the deed. Price v. Great Western Railway Co., 16 M. & W. 244; 4 Rail. Cas. 707. XLIX. The interest on any such mortgage or bond shall not be transferable, except by deed duly stamped. L. The company may, if they think proper, fix a period for the repayment of the principal money so borrowed, with the interest thereof, and in such case the company shall cause such period to be inserted in the mortgage deed or bond; and upon the expiration of such period, the principal sum, together with the arrears of interest thereon, shall, on demand, be paid to the party entitled to such mortgage or bond; and if no other place of payment be inserted in such mortgage deed or bond, such principal and interest shall be payable at the principal office or place of business of the company. LI. If no time be fixed in the mortgage deed or bond for the repayment of the money so borrowed, the party entitled to the mortgage or bond may, at the expiration or at any time after the expiration of twelve months from the date of such mortgage or bond, demand payment of the principal money thereby secured, with all arrears of interest, upon giving six months' previous notice for that purpose; and in pay off the money the like case the company may at any time cease on ex piration of notice to pay off mortgage or bond. LII. If the company shall have given notice of their inten- Interest to tion to pay off any such mortgage or bond at a time when the same may lawfully be paid off by them, then at the expiration of such notice all further interest shall cease to be payable on such mortgage or bond, unless, on demand of payment made pursuant to such notice, or at any time thereafter, the company shall fail to pay the principal and interest due at the expiration of such notice on such mortgage or bond. ment of a LIII. Where by the special act the mortgagees of the Arrears of interest, when company shall be empowered to enforce the payment of the to be enforced arrears of interest, or the arrears of principal and interest, by appointdue on such mortgages, by the appointment of a receiver, receiver. then, if within thirty days after the interest accruing upon any such mortgage has become payable, and, after demand thereof in writing, the same be not paid, the mortgagee may, without prejudice to his right to sue for the interest so in arrear in any of the superior courts of law or equity, require the appointment of a receiver, by an application to be made as hereinafter provided: and if within six months after the Arrears of principal and principal money owing upon any such mortgage has become interest. payable, and after demand thereof in writing, the same be not paid, the mortgagee, without prejudice to his right to sue for such principal money, together with all arrears of interest, in any of the superior courts of law or equity, may, if his debt amount to the prescribed sum, alone, or if his debt does not amount to the prescribed sum he may, in conjunction with other mortgagees, whose debts being so in arrear, after demand as aforesaid, shall, together with his, amount to the Appointment of receiver. Access to account books prescribed sum, require the appointment of a receiver, by an application to be made as hereinafter provided. As to appointment of receiver, see Gasworks Clauses Act, 1871, sect. 8, ante, p. 59. LIV. Every application for a receiver in the cases aforesaid shall be made to two justices, and on any such application it shall be lawful for such justices, by order in writing, after hearing the parties, to appoint some person to receive the whole or a competent part of the tolls or sums liable to the payment of such interest, or such principal and interest, as the case may be, until such interest, or until such principal and interest, as the case may be, together with all costs, including the charges of receiving the tolls or sums aforesaid, be fully paid; and upon such appointment being made all such tolls and sums of money as aforesaid shall be paid to and received by the person so to be appointed; and the money so to be received shall be so much money received by or to the use of the party to whom such interest, or such principal and interest, as the case may be, shall be then due, and on whose behalf such receiver shall have been appointed; and after such interest and costs, or such principal, interest, and costs, have been so received, the power of such receiver shall cease. LV. At all seasonable times the books of account of the by mortgagees. company shall be open to the inspection of the respective mortgagees and bond creditors thereof, with liberty to take extracts therefrom, without fee or reward. Power to convert loan into capital. See Hill v. Manchester and Salford Waterworks Co., 5 B. & Ad. 866; Clarke v. The Imperial Gas Co., 7 Bing. 95; 4 B. & A. 315. And with respect to the conversion of the borrowed money into capital, be it enacted as follows: LVI. It shall be lawful for the company, if they think fit, unless it be otherwise provided by the special act, to raise the additional sum so authorized to be borrowed, or any part thereof, by creating new shares of the company, instead of borrowing the same, or, having borrowed the same, to continue at interest only a part of such additional sum, and to raise part thereof by creating new shares; but no such augmentation of capital as aforesaid shall take place without the previous authority of a general meeting of the company. |