Re Portstewart Tramway Company ex parte Robert O'Neill

• Jurisdiction: Ireland
• Judgment Date: 28 January 1896
• Date: 28 January 1896
• Court: Chancery Division (Ireland)

In re Portstewart Tramway Co.; Ex Parte Robert O'Neill.

M. R.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Winding-up — Tramway Company — Mortgage — Judgment creditor — Companies Act, 1862 (25 & 26 Vict. c. 89), s. 199 — Statutory remedy.

The Court has jurisdiction, under sect. 199 of the Companies Act, 1862, to make an order to wind up a Tramway Company consisting of more than seven members, incorporated by Order in Council pursuant to the Tramway (Ireland) Acts. Where the Order in Council, after giving borrowing powers, expressly provided that mortgagees might enforce payment by the appointment of a receiver:—

Held, that this did not preclude a mortgagee who had obtained judgment against the Company from obtaining a winding-up order.

Petition.

This was an application by Robert O'Neill under sect. 199 of the Companies Act, 1862, for an order to wind up the Portstewart Tramway Company. The Company was incorporated under an Order in Council, dated 26th April, 1880, pursuant to the Tramway (Ireland) Acts, for the purpose of making a tramway from the Portstewart railway station to the town of Portstewart, in the Co. of Londonderry. The capital of the Company was stated in the said Order as 1000 shares of £5 each, and by the said Order the Company was empowered to borrow on mortgage a sum not exceeding £1666 on the terms therein mentioned. The Company duly issued two mortgages under the seal of the Company, one for the sum of £700 to John O'Neill, and the other for the sum of £966 to the Belfast and Northern Counties Railway Company.

The petitioner was the surviving executor of the said John O'Neill, deceased. The mortgages provided for payment of interest on the said sums at the rate of 5 per cent. per annum, and that the principal should not be called in or repaid without three months' notice on either side. The Company duly paid interest on the mortgages up to the 7th November, 1891, but after that date they made default in payment thereof. Notice to call in the principal sum of £700 was duly served on the 1st September, 1892.

By the Order in Council it was provided that the mortgagees of the Company might enforce the payment of the arrears of interest, or the arrears of principal and interest due on their mortgages, by the appointment of a receiver.

The petitioner, with his co-executor Henry O'Neill...