1855. JORTIN บ. THE SOUTHEASTERN RAILWAY COMPANY. Defendants the Railway Company. The conveyance by them to the Defendants was by a deed dated the 21st of April 1843. This deed recites the Acts of Parliament of the Exchequer Loan Commissioners, the Folkestone Harbour Act, the mortgage and the agreement at very great length, and then recites that the Folkestone Harbour Company had paid the interest which had become due in respect of the loan up to the 15th of April 1821, but had paid no interest since that time, and recites the fact that the Commissioners had entered into possession, and that the clear amount of receipts had been applied in reduction of the money due to the Commissioners in respect of their security, but that no part of the principal loan had been paid or satisfied, and that the arrears of interest then due after giving certain credits amounted to 8,0451. 17s. 7d, and that the secretary of the Commissioners under their order, in execution of the powers vested in them by their acts, had contracted with the trustees of the Railway Company for the absolute sale to them of all the tolls, rates, receipts, freehold and leasehold hereditaments, powers, rights and privileges vested in them by virtue of the indenture of mortgage of the 15th of April 1818, except certain tolls which were then due, for the price or sum of 18,000l.; and it recites that the Commissioners had agreed to join in the conveyance. Then there is a conveyance to the trustees of the Railway Company in consideration of 18,000l. of "all and singular the tolls, rates, receipts and freehold and leasehold messuages, lands, tenements and hereditaments respectively, comprised in the said indenture of mortgage of the 15th of April 1818, or expressed to be thereby assigned or assured, and as to the said tolls, rates and receipts henceforth to accrue and become payable, and all the estate, right, title and interest," &c., to the use of the trustees of the Railway Company. Then there is a further assignment by the secretary of the Commissioners Commissioners to the trustees of the 10,000l. secured by the mortgage and of all rights in respect of that security, keeping alive therefore the 10,000l. debt due from the Folkestone Harbour Company to the Exchequer Loan Commissioners. The deed, it is to be observed, upon the face of it, gives notice to the Defendants, the Railway Company, of the prior mortgages, and of the agreement which had been entered into by the Exchequer Loan Commissioners with respect to them. The question is, whether, having regard to that agreement, the Exchequer Loan Commissioners had, under their Acts, power to sell the property discharged of those prior mortgages. The first two of these Acts which were passed in the 57 Geo. 3 (a), enable the Commissioners to make advances for carrying on public works upon securities to be given by the persons applying for the advances and upon the security of the rates, tolls and receipts accruing to the corporations, companies, or persons interested in the works in respect of which the advances shall be made; and the earlier of these Acts contains the following provisions as to the priority of the securities to be taken by the Commissioners. By sect. 22 of this Act it is enacted, "That in all cases of assistance afforded by the loan or advance of any bills or money under the provisions of this Act for the carrying on of any such public works, collieries or mines, the several commissioners for the execution of this Act shall, in addition to the security required to be taken from the persons applying for such assistance, require and take mortgages, assignments or other competent security upon the rates, tolls and receipts accruing, or which may at any time thereafter accrue, arise or be taken, collected or received by or for the use of the body corporate or politic or company of proprietors 1855. JORTIN บ. THE SOUTH EASTERN RAILWAY COMPANY. (a) cc. 34 & 124. 1855. JORTIN V. THE SOUTHEASTERN RAILWAY COMPANY. proprietors or persons interested in the public work in respect or in aid of which the advance of bills or money under this Act shall have been made for the securing the repayment of the full amount of the bills or money advanced, together with all interest which may arise and become due upon such amount; and it shall be lawful for any such body corporate or politic, or for the company of proprietors to whom any such public work shall belong, or for the respective trustees, commissioners, committees of management or other persons by whatever name or names called, under whose care, management or control any such public work shall be, to mortgage, assign and secure such rates, tolls or receipts to the secretary of the said commissioners respectively, in such manner as shall be required by the said commissioners respectively, and also to any person or persons who shall have become security for any advances made under the provisions of this Act as a collateral security to the person or persons who shall have entered into any such security for the due and full payment of the full amount of all bills or money so advanced, together with interest thereon according to the provisions of this Act; and all such mortgages, heritable bonds, assignments and other securities shall have priority over and shall precede all other securities and all dividends and divisions of profit or interest upon any sums advanced or contributed, or which may thereafter be advanced or contributed, for the carrying on or completing any such public work, save and except such sums as shall have been advanced by way of loan before the advance of such bills or money by any persons as bonâ fide creditors, and entitled as such to the repayment of the principal money advanced by them, as well as interest thereon, anything contained in any Act or Acts of Parliament relating to any such public work in aid or in respect of which any such bills or money shall have been advanced under the provisions of this Act to the contrary in anywise notwithstanding." Then the 23rd section provides that if four-fifths of the creditors consent, the mortgage of the tolls to the commissioners shall have priority to all claims of creditors of the like descriptionthat is, four-fifths of the creditors are to bind the remaining one-fifth and to give priority to the commissioners as to the whole of the commissioners' incumbrance. There can be no doubt, therefore, that the securities to be taken by the Commissioners under these Acts were to be subject to any prior advances, and whether secured by mortgage or not, except in the cases of consent, provided for by the 24th section. The next Act, 1 Geo. 4, c. 60, gives further powers to the Commissioners, and, amongst others, a power of sale in default of payment of any part of the principal. The 19th section is as follows:-" And be it further enacted, that if any default. shall be made in the repayment (but not otherwise) of all or any part of any loan or advance which has been or shall be secured to the said commissioners in part or in the whole by any mortgage or assignment of any interest, property or effects whatsoever (real or personal), it shall and may be lawful for the said commissioners or such person or persons as shall be nominated and appointed by any three or more of them in writing to take possession of all or any parts or part of such mortgaged or assigned interest, property or effects, and by sale or mortgage of the same, or a competent part thereof, to raise or levy such sum or sums of money as shall be sufficient to repay all monies due upon or in respect of such loan or advance and the interest thereof, and all costs and charges attending such proceedings; and the monies so recovered (the costs and charges aforesaid excepted) shall be paid and applied in the reimbursement and satisfaction of the sum due upon or in respect of such loan or advance in like manner as the sums of money 1855. JORTIN v. THE SOUTHEASTERN RAILWAY COMPANY. to 1855. JORTIN บ. THE SOUTHEASTERN RAILWAY COMPANY. to be recovered under the proceedings authorized by the said recited Acts in default of payment are thereby directed to be paid and applied; and the receipt of such persons or person as the said commissioners or any three or more of them shall nominate and appoint as aforesaid shall alone be a full and sufficient discharge to such mortgagees or purchasers, or mortgagee or purchaser, for the monies or money advanced on mortgage, or for the purchase monies or purchase money of the respective interest, property or effects so mortgaged or sold, and such mortgagees or purchasers, or mortgagee or purchaser, shall not be bound to see to the application thereof, nor shall be liable or in any manner accountable for the misapplication or nonapplication of such monies or money by the persons or person appointed by the said commissioners as aforesaid, or any part of them." It is plain, however, that this section only extends to the interests mortgaged to the commissioners. It empowers them to take possession of the mortgaged or assigned interest, property and effects, and by sale or mortgage of the same, &c. The interests of prior mortgagees, therefore, could not be affected by the power. The next statute, 3 Geo. 4, c. 86, renders it imperative on the commissioners to take security, not only on the rates, tolls and receipts, but on all the property belonging to the works in respect of which the advances shall be made, and it contains the following provisions as to the priority of the commissioners' securities. By the 17th section it is enacted, "That in all cases of assistance afforded by the loan or advance of any exchequer bills under the provisions of the said recited Acts, or any of them, or this Act, for the carrying on, completion or repair of any public work, road, railway or drainage, it shall be lawful for the said commissioners for the execution of the said recited acts, and this act, and they are hereby authorized and |