Ames v The Trustees of the Birkenhead Docks
| Jurisdiction | England & Wales |
| Judgment Date | 23 April 1855 |
| Date | 23 April 1855 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 630
ROLLS COURT
S. C. 24 L. J. Ch. 540; 1 Jur. (N. S.) 529; 3 W. R. 381. No application to order appointing receiver to get in property of lunatic, Davies v Thomas [1900], 2 Ch. 470.
[332] ames v. the trustees of the birkenhead docks. March 27, 28, April 23, 1855. [S. C. 24 L. J. Ch. 540; 1 Jur. (N. S.) 529; 3 W. R 381. No application to order appointing receiver to get in property of lunatic, Davies v. Thomas [1900], 2 Ch. 470.] Mortgagees of the tolls of the Birkenhead Docks held to have a priority over judgment creditors of the concern. In a suit by mortgagees of a dock against the trustees and a judgment creditor, the chairman was appointed receiver of the tolls, with direction to pay into Court the balance, after paying the expenses of carrying on the concern and the interest on the mortgages. A judgment creditor having afterwards proceeded to attach the tolls under "The Common Law Procedure Act," was restrained by injunction. It was insisted that the possession of the receiver was either that of the dock company or of the mortgagees, and that in the former case the judgment creditor ought not to be restrained in the exercise of his legal remedies against the company, and in the second, that the mortgagees had no power, under the Acts of Parliament, to carry on the concern, but this argument was held unavailing. The Court will not permit its receiver to be interfered with or dispossessed of the 20BEAV.33S. AMES V. TRUSTEES OF THE BIRKENHEAD DOCKS 631 property, nor will it allow payment to him to be intercepted, although the order appointing him may be perfectly erroneous. An application must first be made to the Court for leave. By the "7 & 8 Viet. c. Ixxix., commissioners were appointed for the purpose of making the Birkenhead.Docks, &c." They were empowered to enter into contracts for the execution of any works and for furnishing materials (sect. 17), but were not to be personally liable upon such contracts (sect. 21). Execution upon every judgment against them was to be " executed against the goods and chattels belonging to the commissioners by virtue of their office." The commissioners were empowered to borrow, on the credit of the tolls and of any property vested in them by virtue of the Act, to a limited extent, and to assign the tolls and property as a security; but the mortgagees were to have no preference, in respect of the priority of their advances (sect. 40). The money borrowed was to be applied by the commissioners, first, in paying the costs of obtaining the Act, and next, in paying the expenses of constructing the docks, &c. (sect. 49). The 227th section provided that all the tolls and the rents and the produce of the sale of lands should be applied in defraying the'expenses of keeping in repair and improving and maintaining the dock, &c., and of paying the officers and servants, and of otherwise carry-[333]-ing the Act into execution, and for paying the interest and repaying the principal of any sum of money borrowed by the commissioners under the Act. By the 8th Viet. c. iv., additional powers to borrow were given, but the then subsisting mortgages were to have priority. The 8 & 9 Viet. c. Ix. incorporated the subscribers by the name of " The Birkenhead Dock Company," and enacted, that "The Companies' Clauses Consolidation Act, 1845," and "The Lands Clauses Consolidation Act," should be incorporated in and form part of it. By the 11 & 12 Viet. c. cxliv. s. 2, the duties and authorities of the commissioners were determined, and in lieu of them (sect. 3), thirteen persons therein named were appointed and incorporated by the name of " The Trustees of the Birkenhead Docks." Six of them on behalf of the bondholders or mortgagees, four of Birkenhead, and three of Wallasey (sect. 4), and they were to have the powers vested in the commissioners by the former Acts. Prior to the year 1851 very considerable sums of money had been raised under the powers contained in the Acts, which were secured by mortgages or bonds, given in the form prescribed by the Act, whereby the tolls were assigned, tenerulum until the principal sums and interest had been repaid. The Plaintiff Ames, and the other four Co-plaintiffs, were holders of some of those mortgages or bonds, the interest on which was greatly in arrear. Abernethy, a simple contract creditor, having obtained a judgment against the trustees, had proceeded to make it available by fieri facias, attach-[334]-ment, and by other proceedings in equity. The Plaintiffs instituted this suit on the 29th of May 1854, on behalf of themselves and the other mortgagees or bondholders, against the trustees of the docks and Abernethy, insisting that their rights and remedies were prior in equity to those of Abernethy as a judgment creditor of the trustees, and praying, first, an injunction to restrain the proceedings of Abernethy; second, an account; third, a declaration of the Plaintiffs' rights; fourth, a receiver of the tolls; fifth, the realization of the Plaintiffs' security; and sixth, further relief. On the 8th of February 1855 an order was made in the suit, appointing Mr. Powles, the chairman of the trustees (sect. 33), to be the receiver of the rates and tolls and of the rents of the property of the corporation, without salary and without giving security. It directed him to pay into Court half-yearly such balances, if any, as might remain in his hands, after payment of the expenses of carrying on the business and the interest then due and to become due on the mortgages. And the receiver was not to account otherwise, until the further order of the Court. It is now necessary to refer to the case of the Petitioner, Mr. Williams, who was no party to the suit, but was alleged to have interfered with the receiver appointed under this order. In 1851 the Petitioner Williams sold some mud-barges to the trustees, for the purpose of the works, and became a creditor for ,600. On the 26th of January G32 AMES V. TRUSTEES OF THE BIRK.ENHEAD DOCKS M BEAV. 33!. 1855 he obtained a judgment against the trustees for that amount. On the 2d of February he obtained an order nisi, under "The Common Law Procedure Act, 1854 " (17 fe 18 Viet. c. 125, s. 61), calling upon fifteen [335] masters of ships in the docks to shew cause why he should not be allowed to attach the tolls due from them to the trustees, in satisfaction of his judgment. This order was served on five of the garnisbees on the 3d, 4th, and 5th of February. On the 16th of February an order absolute for the payment to the Petitioner of the tolls was made on three of the garnishees, and execution was to issue without further order. The Plaintiffs gave notice of motion to commit the Petitioner for contempt, by interference with the receiver, and also for an injunction to restrain further proceedings upon the judgment. The Petitioner, on the other hand, presented his petition for leave to issue execution and to obtain satisfaction of his judgment debt out of the tolls attached. The motion and petition now came on together to be heard. The arguments on both sides are so fully stated in the judgment that it is unnecessary to repeat them. Mr. Follett and Mr. Goldsmid, for the Plaintiffs, in support of the motion and against the petition, cited Potts v. The, Warwick ami Birmingham Canal Navigation Company (Kay, 142); Russell v. The East Anglian Railway Company (3 Macn. & G, 104); WWiaorth v. Gaugain (3 Hare, 416); Evelyn v. Lewis (3 Hare, 472); 17 & 18 Viet. c. 125, s. 60. Mr. R. Palmer and Mr. Cairns, for the Petitioner, in support of the petition, and in opposition to the [336] motion, cited Russell v. The East Anglian Railway Company (3 Macn. & G. 104); Fripp v. The Chard Railway Company (22 L. J. (N. S.) Ch. 1084). Mr. Follett, in reply. the master of the rolls reserved judgment. April 23. the master op the rolls [Sir John Eomilly]. There are, in this case, two matters to be disposed of. The first is a motion, the ostensible object of which is to protect, in the discharge of hia duty, a receiver appointed by this Court to receive the rates and tolls of the Birkenhead Docks; and the second is a petition by a judgment creditor, disputing the propriety of the order appointing that receiver, and claiming a priority, in respect of his judgment, over the Plaintiffs, who are the mortgagees of the rents and tolls of the Birkenhead Docks. The only material and important question is that raised by the petition, and accordingly I proceed, in the first instance, to...
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