rolling stock, plant. ete_ acquired or to be acquired: Held, that s. 38 of
R-S.O. 1837, e. 157. does not restrict the power of mortgaging to the exist-
ing property of the company and that a company is invested with as large
pawn A to mortgage its ordinary after acquired property as belong to a
natural person: that the mortgage ia terms covered after acquired prop-
erty. and even if not authorized ia this respect upon a strict reading of
the by-law* had beea acquiesced in and ratified and was binding. Judg
ment of a Divisjoaal Court affirmed: Held. also, that the rolling stork.
poles, wires, etc.. formed aa essential part of the corpus of what mast he
regarded as an eatire machine, and were therefore fixtures and not sell-
able under execution to the prejudice of the mortgagees. Judgment of Ar-
mour. CJ_ affirmed.
Kirkpatriek T. Cornwall Eke, Street By. Co.; Bank of Montreal T. Kirk-
patrick. * OJ^R. 113 ICJL-.
SETZTBB JLM SJLLE STBIT or LAXB SOT isci-rBeB r* FIBST
A railway was seized and sold by sheriff's sale to the present opposant.
It was described as fifty feet in width, but the greater part of the line was
actually sixty-six feet wide. The present plaintiff BOW caused the line to
be seized again, bat stated exceptions from the seizure, which exceptions
really included the eatire road less the surplus width: Held, that the
seizare was irregular aad illegal, the adjudication by the sheriff hong
636 SALE.
of a specific object, fenced at the time of the sale, and known as consisting
of the property so enclosed. The error as to the width was immaterial,
unless it were to give a ground of action by the defendant to have the
sale set aside. Moreover, a railway can only be seized as an entirety,
which had not been done in the present case.
Carter v. Montreal & Sorel Ry. Co., 23 Que. S.C. 3.
BONDS MORTGAGE DEFAULT IN PAYMENT.
A railway incorporated by provincial legislation, and which is after-
wards declared to be a work for "the general advantage of Canada," can
be validly sold as a going concern, where the sale is under the provisions
of a mortgage, or at the instance of holders of bonds secured by a mort-
gage on the railway, or under any other lawful proceeding. Bonds of
the railway were issued, and as security for their payment a mortgage of
the railway was made to a trust company, containing a provision that
in default in payment of the principal of the bonds, and on request of
three-fourths of the bondholders, the trustee should immediately elect
and declare the bonds to be due and payable and take proceedings for en-
forcing payment: Held, that the Railway Act, 1886, ss. 14, 15, 16 (re-en-
acted by the Railway Act, 1888, s. 278), although passed subsequently to
the date of the mortgage, applied, and that a sale of the railway could
be validly made. A consent judgment directing a sale of the railway was,
under the circumstances of the case, vacated, and the defendants allowed
to come in and defend. [Petro v. Welland Ry. Co. (1862), 9 Gr. 455, and
Gait v. Erie Ry. Co. (1868), 14 Gr. 499, distinguished.]
Toronto General Trusts Corp. v. Central Ontario Ry. Co. ; Ritchie v.
Blackstock; Central Ontario Ry. v. Blackstock, 2 Can. Ry. Cas. 274.
[Affirmed in 4 Can. Ry. Cas. 328; 8 O.L.R. 342.]
BONDS MORTGAGE DEFAULT IN PAYMENT SALE OF RAILWAY.
A railway incorporated by provincial legislation, and which has been
declared to be a work for "the general advantage of Canada," can, since
the passing of the Railway Act, ]888, ss. 14, 15, 16, be validly sold as a
going concern, where the sale is under a mortgage, or at the instance of
holders of bonds secured by a mortgage on the railway, made before or
after the passing of that Act, or under any other lawful proceeding. Judg-
ment of Boyd, C., 6 O.L.R. 1, 2 Can. Ry/Cas. 274, affirmed.
Toronto General Trusts Corp. v. Central Ontario Ry. Co., 4 Can. Rv.
Cas. 328, 8 O.L.R. 342.
[Affirmed in 4 Can. Ry. Cas. 340; 21 T.L.R. 732; [1908] A.C. 576.]
MORTGAGE CHARGE ON LAND AND RAILWAY POWER OF SALE.
A railway which is subject to the legislation of the Dominion of Can-
ada can be sold in a suit by trustees for bondholders to enforce a mort-
gage on the railway company's railway, lands, and franchises. Semble, a
railway which is subject exclusively to the law of the Province of Ontario
cannot be sold in a suit to enforce such a mortgage. Decision of the
Court of Appeal for Ontario (8 O.L.R. 342, 4 Can. Ry. Cas. 328), affirmed.
Central Ontario Ry. Co. v. Trusts & Guarantee Co., 4 Can. Ry. Cas. 340,
21 T.L.R. 732, [1908] A.C. 576.
INSOLVENCY SALE TO A COMPANY BY ITS PROMOTERS.
A syndicate of four persons procured a Quebec Act incorporating a rail-
way company which they had promoted and subscribed for $300,000 of the
company's shares (being all that were issued), and were, with others
SALE. 637
they had qualified, elected directors. They then purchased a rail-
way themselves, aad the incorporated company. being empowered so to do
by their Act, purchased the said railway from them for SS4S.OOO. payiag
for it by takiag credit for the said subscription and acknowledging indebt-
edness to the said four persons of the balance of $MM>* ia equal share*.
Oa the iasolicacy of the said incorporated company aad of aaother eom-
paay with which it had bees amalgamated, their railways woe sold, aad
the 'respondent company, to whoat the syndicate's daim had been assigned.
claimed to raak as creditor* against the proceeds of sale: field, that the
claim aiost be allowed. The incorporating Act authorized the purchase,
aad. whether or not the price was excessive, every one interested ia the
capital of the company concurred in the purchase with full knowledge of
all the canumstaaeeal Salomon v. Salomon, [18*7] A.C. . followed.
Judgment of the Supreme Court of Canada, which affirmed the decision of
the Exchequer Court, sub. nom. Minister of Railways v. Quebec Southern
By., 10 Can. Ex. 139, affirmed by the Privy Council.
Attorney-General for Canada v. Standard Trust Co. of New York, [1911]
A.C. 498."
SALE r XDEE STECAL. ACT.
By 4-5 Edw. VII. e. 158, respecting the South Shore By. Co. aad the
Quebec Southern By. Co.. the Parliament of Canada, among other thing-.
provided that the Exchequer Court might order the sale of the railway*
mentioned and their accessories as soon as possible and convenient after
the passing of the Act, and that such railways and their accessories re-
spectively, should be sold separately or together as, in the opinion of the
Exchequer Court, would be best for the interests of the creditors of the
said rompinit ~. An order for such sale was made and tenders received in
accordance therewith: Held, that in respect of the tenders so received.
the statute left it to the Court to determine which of them it was in the
hat interests of the creditors to accept. (2 That, inasmuch as if the
unmet iy were sold ia part to one purchaser and in part to another, two
new and diverse interests would arise, and it would be necessary to divide
Ac property both real and personal, and to make two transfers instead of
one. it was in the best interests of the creditors, as well as of the public.
to accept a tender for the property as a whole, although si
was for a less sum, by some 93JMO. than the aggregate of tw
tenders for distinct portions of the whole property.
Minister of Railways v. Quebec Southern By. OIL, 10 Can. Ex. 139.
[Affirmed by the Supreme Court of Canada.]
BIGHTS OF FCBCHASCX OF BAILWAT AT SAI_E I^COBFOKATIO:* or
DimC-TOwS' SALABT - SET-OFF.
A purchaser of a railway does not acquire an absolute right to the rail-
way. What be acquires is an interim right to operate the railway to be
MJBBid up by incorporation as provided by s. 380 of 51 Viet. e. 29. (See
a, 99 of the Railway Act. R.S.C. 1906, c- 37.4 <2t While an independent
jnilihi i,r buying with his own money and selling at an enhanced price
to a company, with full disclosure and without fraud, can claim his profit.
promoters, who stand in a fiduciary relationship to the company, cannot
take s-TK-h profit. Hence, where promoters bought with the moneys of a
company incorporated by themselves, to whom they turned over the prop-
erty. they were not permitted to recover against the company any profits
on the transaction. (3i A resolution of shareholders is nevs*ary to
authorize the payment of salaries to directors of a company. <4 Having
regard to the provisions of arts. 1031 and 1187 C.C-P-, creditors were
638 SALE.
allowed by the referee to set off the claims of certain debtors, officers of the
company, for salaries taken by them without proper authority, and for
expenditures made by them out of the company's funds for a purpose ultra
vires of the company. No objection was taken to this ruling before the
referee, and the Court, on appeal from his report, confirmed such ruling,
but expressed some doubt as to the jurisdiction of the referee to set off
such claims.
Minister of Railways and Canals v. Quebec Southern Ry. Co., Hodge's
Claim, 12 Can. Ex. 11.
JUDICIAL SALE OF RAILWAYS INTERESTED BIDDER COUNSEL AND SOLIC-
ITORS.
Solicitors and counsel retained in proceedings for the sale of property
are not within the classes of persons disqualified as purchasers by art.
1484, C.C. (Que.). The Act, 4 & 5 Edw. VII., c. 158, directed the sale of
certain railways separately or together as in the opinion of the Exchequer
Court might be for the best interests of creditors, in such modes as that
Court might provide, and that such sale should have the same effect as a
sheriff's sale of immovables under the laws of the Province of Quebec.
The Judge of the Exchequer Court directed the sale to be by tender for
the railways en bloc or for the purchase of each or any two of the lines
of which they were constituted:- Held, that the /Judge had properly exer-
cised the discretion vested in him by the statute in accepting a tender
for the whole system, in preference to two separate tenders for the sev-
eral lines of railway at a slightly increased amount, and that his deci-
sion should not l>e disturbed on appeal.
Rutland R.R. Co. v. Beique and Minister of Railways; White v. Be"ique
and Minister of Railways; Morgan v. Beique and Minister of Railways,
5 Can. Ry. Cas. 421, 37 Can. S.C.R. 303.
INTERPRETATION OF CONTRACT BALANCE OK PURCHASE PRICE SUBSIDIES
DUTY OF GOVERNMENT DISTRIBUTION OF FUNDS PENDING LITIGATION.
A stipulation in a contract for the sale of a railway that the balance
of the purchase price is to be paid from time to time to the extent of fifty
per cent in Government subsidies points to the payment of the balance out
of subsidies paid in respect of the residue over and above fifty per cent,
not to the payment of the entirety of fifty per cent of the subsidies, as a
condition precedent to a demand for payment of so much as has been paid
and for an accounting thereof. [Judgment of Canada Supreme Court re-
versed; Irvine v. Hervey, 13 D.L.R. 868, 47 N.S.R. 310, affirmed.] A Pro-
vincial Government empowered by statute with the distribution of funds
under a railway subsidy contract is not justified in making payments
thereon pending an action for the determination of the respective rights
relative thereto and of which the Government had full notice. The proper
course to be pursued by the Crown in a case where it is charged with the
distribution of certain funds under a railway subsidy contract that is be-
ing litigated and a receiver appointed is either to apply to the Court for a
construction of the contract, and to pay accordingly, or to pay the whole
amount over to the receiver to be paid out under orders of Court. [Judg-
ment of Canada Supreme Court reversed; Irvine v. Hervey, 13 D.L.R. 868,
47 N.S.R. 310. affirmed.]
Eastern Trust Co. v. MacKenzie, Mann & Co., 22 D.L.R. 410.
B. Sale of Securities.
RAILWAY BONDS POWER OF SALE NOTICE AHORTIVE AUCTION RALE SUB-
SEQUENT PRIVATE SALE BoXA FIDE PURCHASERS FOR VALUE.
As collateral security to a promissory note the makers deposited with a
SALE.
bank certain railway bonds, and, by memorandum of hypothecation, auth-
orized the hank, upon default, -"from time to time to sell the said securi-
ties ... by giving fifteen days 3 notice in on- daily paper published
in the city of Ottawa . . . with power to the bank to buy in and re-
sell without being liable far any loss occasioned thereby." Default having
been made, notice of intention to sell was duly published, and, pursuant
to the notice, the bonds were offered for sale at public auction, after two
postponements at the request of the pledgers, but no sale was made for
want of bidders. The bank afterwards made a private sale of the bonds
without any further advertisement: Held, that the words -by giving"' in
the memorandum were equivalent to "after giving'* or "first giving" or
"giving," and the condition of publication of the notiee having been per-
formed, the power to sell arose and might be exercised afterwards without
a fresh notice: Held, also, that there was nothing upon the evidence to
shew that the purchaser?, were not bona fide purchasers lor value or that
they had any reason to suppose that the bank were not authorized to sell:
and under these circumstances the construction of the power of sale should
not be strained against the purchasers.
Toronto General Trusts Corp. v. Central Ontario Ry. COL, 3 Can. Ry. Cas.
344, 7 O.L.R. 660.
[Reversed in 4 Can. Ry. Cas. 358: 10 OXJL 347.]
RAILWAY BOXDS POWE OF SALE NOTICE ABOKTTVE AFcnos SALE Sm-
m i 1 1 rcrvATE SALE.
As collateral security to a promissory note the makers deposited with
a bank 300 railway bonds, and, by a memorandum of hypothecation,
authorized the bank, upon default, "from time to time to sell the said se-
curities ... by giving 15 days* notice in one daily paper published in
the city of Ottawa . . . with power to the bank to buy in and resell
without being liable for any loss occasioned thereby:" Held, reversing the
judgment of Street, J-, 7 6-LJL 660. 3 Can. Ry. Cas. 344, Osier. J JL. dis-
senting, that the power was to sell by auction and that the bank had no
power to sell by private contract- Semble that, even if there was power
to sell by private contract, the sab? made to the respondents could not.
upon the evidence as to the methods adopted, be supported, they having
notice that the bank held the bonds as pledgees.
Toronto General Trusts Corp. v. Central Ontario Rv. Co, 4 f^ Ry. Cas.
330, 10 OJLJEL 347.
SAIJ5 OF ULJTD.
See Title to Land.
For the purpose of railway, see Expropriation.
SCHEME OF ABBANGEMEHT.
See Insolvency.
SECTION
Regulation of section men. see Railway Board.
SECURlTim
See Bonds and " liliM
640 SHARES.
SEIZUBE OF BAILWAY.
See Sale.
SENIORITIES.
See Expropriation (Location); Highway Crossings; Railway Crossings;
Wires and Poles.
SEPARATION OF GRADES.
See Highway Crossings.
Annotation.
Apportionment of Cost of Separation. 22 Can. Ry. Cas. 188.
SERVICE OF PROCESS.
See Pleading and Practice.
SHARES.
Annotation.
Transfer of shares and mandamus compelling same. 7 Can. Ry. Cas.
373.
DISTRIBUTION OF SHARES HASTY PROCEEDINGS ''GENERAL ADVANTAGE OF
CANADA."
Meetings of shareholders of a company called according to the distribu-
tion of shares for an hour named should not be proceeded with in haste
as soon as such hour arrives, but a reasonable delay should be accorded to
tardy representatives. Hence, a meeting called for twelve o'clock noon for
the election of directors, which is opened by the shareholders present at
one minute after twelve and proceeds with the election and constitution
of a board of directors, the proceedings being terminated and the meeting
closed at ten minutes past twelve, should be deemed, because of such pre-
cipitation, as made in fraud of the absent shareholders and should be de-
clared illegal and null. When an Act of the Parliament of Canada de-
clares a provincial railway a work for the general advantage of Canada,
the Railway Act, 1903, applies as well to the railway as to the company
constructing or operating it to the exclusion of incompatible provisions of
the Provincial Act constituting such company, especially in matters re-
specting the mode of, and formalities for, raising the capital stock.
Armstrong v. McGibbon, 15 Que. K.B. 345.
TRANSFER ON COMPANY'S BOOKS MANDAMUS TO ENFORCE TRANSFER.
The owner of two shares of stock in the defendants' railway, assigned
them to the plaintiff, endorsing the assignment on the certificate. The
plaintiff called at the head office and demanded that the necessary trans-
fer should be made on the company's books, and also saw the president;
and after some correspondence, the transfer not having been made, he pro-
cured a duplicate assignment of the stock, and placed the matter in the
liands of his solicitor, who thereupon wrote the company demanding a
transfer, and enclosed one of the duplicate assignments, and stated that
he would attend on a named hour, ready to surrender the certificate, and
have the transfer completed, and, on receiving a reply that it could not
then be attended to, this action was brought, in which an order for a man-
SIGNALS AXD WARXIXGS. i>41
damus was claimed. Am. interlocutory order Made by a Judge m Cham-
bers directing a mandamus to issue, was. on appeal to the Divisional
Court, set aside, and the Matter left for decision at the trial.
Xelles T. Windsor, Essex 4 Lake Shore Rapid Ey. Ox, 7 Can. By. Cas.
367, 16 OLR 339.
LnilTATIOX OF ESSTE.
The provisions of the Railway Act as to the organization of railway
companies and the amount of stock subscriptions are provisions made for
the protection of the public and must be strictly followed.
Re Bnrrard Inlet Tunnel 4 Bridge Co., 10 DJUR. 723, 15 Cam. By. Cas.
m
SHIPPING itil.T.
See Bills of Lading: Carriers of Goods.
HIPPING SYSTEM.
See Cars; Train Service: Stations: Interchange of Traffic; Tolls and
hriftk
SHUNTING CABS.
Injuries received while shunting cars, see Employees; Crossing Injuries.
SrDES'GS.
See Branch Lines and S
SIGNALS AND WARNINGS.
See Crossing Injuries: Street Railways; Negligence; Employees; Fences
and Cattle Guards: Railway Crossings; Highway Crossings.
LoococT Sic SAL*.
A number of railway cars which are connected and are forced backward
by the concussion made in coupling will constitute a 'Train'" before get-
ting under way in a forward direction, and where there is a statutory
obligation to station a brakeman on the last car of a train moving re-
versely, the railway must station the brakeman on the car '*rt coupled,
although the reverse motion is used only in the operation of H-g on
that ear. [HoDinger v. C.P.R-. 20 AJL"(Ont-i 244. 250. approved.]
Hdson T. Morriscy, Fernie 4 Michel Ry. Cot, 1 D.I^R. 33, 19 W.LJL
335, 17 B.C.R. u5.
SIGNATURE.
See Contracts,
SLEEPING BKBTH.
See Carriers of Passenger?.
SMOKING CAB.
See Carriers of Passengers.
Can. By. I_ Dig. 4L.
(542 STATIONS.
SPECIFIC PERFORMANCE.
Specific performance of order of Railway Board requiring protection of
highways, see Highway Crossings.
Specific performance for the sale of lands for railway purposes, see
Title to Lands.
Specific performance of agreements affecting street railways, see Street
Railways.
Annotation.
Whether mandamus, injunction, specific performance or damages is the
proper remedy for the enforcement of covenants by railway companies. 1
Can. Rv. Cas. 294.
SPUR LINES.
See Branch lines and Sidings.
STABLES.
See Warehouses, Yards and Workshops.
STATEMENT OF CLAIM.
See Pleading and Practice.
STATION AGENT.
See Stations.
STATIONS.
A. Facilities; Agents.
B. Bus .Line; Hackmen; Transfer Companies.
C. Injuries at Stations.
Agreements respecting telephones in railway stations, see Telephones.
Injury to passenger crossing tracks at station, see Carriers of Passengers.
Expropriation of lands for station purposes, see Expropriation.
Injuries to employees at stations, see Employees.
A. Facilities; Agents.
FLAG STATION AGENTS ANNUAL EARNINGS GRAIN SHIPMENTS.
Under ss. 30 (g), 258, 284 (1) (a) & (3) of the Railway Act, 1906,
the Board has jurisdiction to require a railway company, to erect and
maintain platforms or freight sheds or any other structures or works that
may be deemed reasonably necessary for the protection of property 01
the public at stopping places on the railway (known as flag stations)
used for unloading and delivering traffic. At such stations a suitable
shelter or waiting room should be erected for both passengers and freight,
provided with a door and windows, proper platforms and approaches. At
stations where the total freight and passenger earnings amount to $15,000
per annum, the company should appoint and maintain permanent agents;
at points where the business consists principally of shipping grain, and
such shipments amount to at least 50,000 bushels, agents should be ap-
pointed and maintained during the grain shipping season; at points of
STATIONS.
where m. telegraph operator is located for tie handling of trains
he should be provided with the necessary equipment to handle all traffic
thereat.
Winnipeg Jobbers, etc. T. Van. Pae. etc. Ry. Coo, (Flag station ease*,
8 Can. Ry. Ca*. 151.
FAdLttMB Itomear EAH.WAT GnxATiox rjr CAXADA THBOCGH TBAFFIC.
An application was made to the Beard for an order directing the G-NLR.
Cb. to construct a platform and station building. The X.WjS- a pro-
vincial railway, incorporated by an Act of British Columbia,, had not
been declared a work -for the general advantage of Canada.** The trains
of the G-X.R_ a foreign railway used the line of the X.W.S. as connect-
ing line between its line in the State of Washington and Vancouver in
British Columbia. The latter company was not shewn to hare any roll-
ing stock or equipment, or so far as operation was cuuteined to be in
any way a separate organization from the former: Held. (1) that the
G-X.R. a foreign railway, is subject to the jurisdiction of the Board in
so far as it operates in Canada. |2 That the X.W.S.. a provincial rail-
way, although not declared to be a work "for the general advantage of
Canada.'* but connecting with a railway subject to the jurisdiction of the
Board, is. by s. 8 (b) as regards through traffic upon it. and all matters
appertaining thereto, subject to the Railway Act. |3 That station fa-
cilities are matters appertaining to through traffic. (4) That proper
facilities should be provided for the safety and convenience of the pub-
lic using the trains of the G-X.R. (3 If the G.X.R. desires to apply for
leave to appeal upon the question of jurisdiction, the issue of the order
may be delayed for 30 days, but, if not. the size and location of the station
and platform may be denned by an engineer of the Board.
Thrift v. Xew" Westminster "Southern and Great Xorthern By. COL, 9
Can. Ry. Cas. 2O3.
[Followed in Stewart etc. T. Xapiervffie Junction Ry. Co, 12 Can. Ry.
Cas. 399.]
STATIONS ACOOSIMODATIOX OF TRAFFIC.
The Board has power to order a railway company whose line B com-
pleted and in operation to provide a station at any place where it is re-
quired to afford proper accommodation for the traffic on the road. Iding-
ton and Duff. J J.. dissenting.
Grand Trunk Ry. Co. T. Department of Agriculture, 10 Can. Ry. Cas.
84, 4* Can. S.CJL 557.
STATJOXS AJH> FACTLJTIES FOBEZGX KAILVATS.
An application to direct the respondent to furnish adequate station
accommodation and satisfactory train service on its line of railway. The
respondent, a Canadian railway, incorporated by the Province of Quebec.
was operated by the Delaware and Hudson Ry. COL. a foreign company,
through its agent and subsidiary company, the Quebec, Montreal & South-
ern Ry. COL. another Canadian company: Held. (It that the respondent
company vas not a separate organization and that there was no separate
anagement. (2) That under subs. 3 of s. 258 of the Railway Act,
1906, the Board has jurisdiction to direct the respondent, subsidised by
the Parliament of Canada, to maintain and operate suitable stations with
suitable accommodation or facilities. 3i That under s. 11 of S i 9
Edw. VEL. Railway Act amendment, the Delaware t Hudson and Que-
bec. Montreal ft Southern Ry. Cos. ww both mbject to direction to main-
tain proper train service and facilities upon this section of the fine.
644 STATIONS.
[Thrift v. New Westminster Southern and Great Northern Ry. Cos., 9 Can.
Ky. Cas. 205, followed.]
Stewart and St. Cyprien v. Napierville Junction Ry. Co., 12 Can. Ry.