The Express.
London, England, 1846-11-12 00:00:00

money to the company by way of loan. These ',enders were
titheheelastpiesmoftfiransusdchtbineinstanthaedlmmTanateineednt€srbetinhilenngatioopiaeldyd, ioninn
in-
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t
the
being paid, loan notes were given by rho company to the
vltacceltairthrPtrilleortiAin°tilaneathttdi of July, 1842. Up nn such last instalment
parties advancing the money, such loan notes being upon
the face of them in the following terms: " London and
Brighton Railway Company. LlOO. On the 15th Feb.,
1847, the London and Brighton Railway Company promise
to pay the bearer hereof, at Messrs. Smith, Payne, and
Smith's, Lombard- attest, 1001. for vlue reived ; and
that until the said sum becomes payablea, interest at five per
cent. shall be paid half-yearly, at the respective dates, the
raltisealAugu. sat
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orderthe
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ileceboruuratFry, as w
of
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back of the notes was an indorsement, showing when the
interest would become payable to the holders of the notes,
and at the foot of that was a further indorsement in these
words : " In pursuance of a resolution of a general meeting
held at the London Tavern, Bishopsgate-street, London, on
the 20th of January, 1842, application is intended to be made
to parliament for an act under the terms of which the bearer
will be entitled on the 15th of February, 1845, provided pre-
vious notice be given to convert this loan into quarter-shares
of this company." There was no date upon the notes except
that relating to the things to be done. h appeared that fur-
ther sums were advanced by other parties besides the plain-
tiffs amounting to 300,0001., and loan notes given to the
lender ; and it appears that the plaintiffs had purchased the
interest of some of the lenders. On the 3rd of May, 1843,
an act of parliament was obtained, which empowered the
company to raise the sum of 300,0001. By the 2nd. section of
the act it was enacted that it should be lawful for the company
to raise b contribution among themselves or by the admis-
sion of other persons as subeenbers or in part by each of these
means such sums of money as they should from time to time
think expedient, not exceeding in the whole the sum of
225,0001. in addition to the monies authorised to be raissidby
the act of the company. By the 3rd section of the same ast
it was enacted that for the purposes aforesaid it should be
lawful for the said company to issue such or so many dis-
tinct and integral shares of such amount, and to be appro-
priated and disposed of in such manner, for such prices, and
by such wayb and means, as by the order of any such meet-
ing should be determined. And by the Gth section
of the same act it was declared that the proprie-
tors of new shares, to be issued under the act,
should be incorporated as shareholders in the company.
On the 9th of January, 1845, a gene.-al meeting of the
shareholders of the company was held, at which the follow-
ing resolution was passed :—" Resolved, that the shares
authorised under and by virtue bf the act 6 & 7 Vie., c. 27,
be, and are hereby ordered to be, raised and allotted to, and
amongst the holders of loan notes, in the manner and upon
the terms directed by such act, with liberty however to the
holders of such loan notes to accept integral shares of 501.,
in lieu of quarter shares of 121. 10s., as originally proposed.
Under those circumstances the company contended that no
loan note holders could lawfully claim to convert his note into '
shares unless he had given notice of his intention before
the 15th of February, 1846.
His Honour then observed, that, upon the terms of the
resolution of the 20th of Jenuary, 1842, and the advertise-
ment issued on the 21st, upon the faith of which the advances
had been made, the five years mentioned in those documents
as the period for the payment of the debt, must be taken to
mean five years from the date of the first instalment being
paid, that is, the I;th of February, 1847; and that if 'here
were any doubt, looking at the resolution alone, that doubt
was removed by the indorsement upon the notes, by which
they were made payable on that day. That being the case,
it followed that the 15th of February, 1845, would be the
period at the expiration of which the option of the loan note
holders to convert their notes into shares should have been
made. Upon the question whether the note holders, by
omitting to give notice of their election to convert
their notes into shares till after the 15th of February,
184-5, had lost their right to do so, it appeared that
nothing was said in the resolution of January,
1842, as to the necessity of giving such notice,
but only that the conversion could not be made after the
15th February, 184.5 ; and the advertisement which referred
to the resolution did nut extend the time given thereby.
Upon the resolution and advertisement, taken by themselves,
there was nothing to preclude the company from ins:sting
that the plaintiff's right to elect was barred ou the 15th
February, 1845. And nothing appeared to have silbse-'
quently taken place which could alter the case; for the in-
dorsement upon the notes did not alter the time given by
the contract for conversion, hut only required previous no-
the to be given. Another objection was, that the indorse-
ment on the notes promised that an Act of Parliament was
to be applied for whereby the holders were to be entitled to
convert their notes into shares; and that until such Act had
been obtained, the holders were justified in supposing they
were not to be deprived of their option. That argument,
however, could not be admitted as a ground for giving the
plaintiffs relief to which they would not otherwise be entitled.
om,tting the Act of Parliament, the case was one in which the
creditors of the company being entitled under the terms of the
resolution and advertisement of January, 1842, to elect
not later than the 15th of February, 1845, to convert their notes
into shares, pay the last instalment in July, 1842, and
accept loan notes, by which the makers do not alter the
eontrect between the parties, but require only notice to be
given. The cave was one in which the creditors having
accepted theft notes and treated them as valid, now, merely
because an indorsement had been put upon the notes, asked
the Court, in a suit for specific performance, to vary the
substance of the contract between the parties, by holding
that time is not of the essence of the contract. His Honour,
after some further observations upon the terms of the act
of parliament, and of the resolution of January, 1842, ulti-
mately held that there had been no waiver, by the company,
of the objection which had been taken, and dismissed the
bill with costs.
DUNCOMEE O. LETT.—FORFEITTRE OF DEBT TNDER
DEED OF ARRANGEMENT BETWEEN CREDITORS.—His Ho-
nour gave his decision upon the points which were reserved
in this case, and which are mentioned in the report of the
case in our impression of Saturday last. His Honour di-
rected that issues should be taken to the Court of Ex-
chequer, for the purpose of trying the questions whether
any act had been done by the defendant Levy, by which he
had forfeited his right to receive his debt under the deed of
arrangement; anti, secondly, whether he had directed his
attorney to proceed upon the judgment of August, 1813, or
upon that of February in the same year.