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it which has so grown in the past is fixed and station. | LANDLORD'S SHARE OF GROWING CROPS ary, this elasticity is of far less importance than the CANNOT BE SOLD ON EXECUTION. definiteness and precision which would be attained by a re-statement of the entire mass of judge-made PENNSYLVANIA SUPREME COURT, MAY 25, 1883. law in the form of rules. There is really no room for coutroversy if the true conditions of the problem

LONG V. SEAVERS. were resolutely forced and all irrelevancies excluded. With these essentials to the perfecting of the law as

A sale upon an execution against a landlord of a farm let on

shares of his share of growing grain does not pass his a practical art before us, I ask again the question I put

title to it as against a subsequent purchaser of the land. at the outstart. What is the measure of our achievement? Let us glance first at procedure. The ideal

CTION to recover the value of certain wheat. The would be on the lines laid down, a brief precedure act

facts were these: One Cyrus Allison owned a delineating the main features of the various legal pro

farm which he leased on shares to his son. One Meales, ceedings, leaving the details to be supplied in rules of

who held a judgment against said Cyrus Allison, ispractice drawn up by the judges. Amongst these rules

sued an execution thereon, under which a levy was should be one to be sacredly observed to the effect

made upon wheat growing upon the farm, and the inthat every error or mistake as to matters of practice

terest therein of Cyrus Allison was sold to the plaintcovered by rules should be disregarded if no injustice

iff below, Jacob Seavers. Thereafter under an execawere done. On this plan the essentials of procedure

tion upon another judgment the farm was sold to one would be matters of strict rule, and the details in

Long. The grain was harvested by the tenant and devariably under control and unobstructive. If this be

livered to defendant below, Ira L. Long, and other a true ideal I leave it to you whether we are making

persons. This action was brought to recover the value toward it, or even an intelligent perception of it. Our

of the wheat delivered. A verdict was rendered for own code of procedure laying hold of every detail of

the plaintiff below, and defendants took a writ of error practice and thus making its observance absolute, is

to review the judgment thereon. direct evidence to the contrary. It has erected pro- John Hayes, for plaintiffs in error. cedure into a vast and complicated system which has

J. A. C. McCune, for defendant in error. to be traversed without serious deviation to reach the seat of justice. It entirely lacks tho flexibility which

GREEN, J. It is true that grain growing in the rules would have and which must pervade procedure ground is personal property, and may be seized and if it is not to be an unwarranted and illogical obstruc

sold upon execution. Hershey v. Metzgar, 9 Norr. 218. tion. The condition of things which prevails in other

But that proposition in its generality relates to the inStates may be subjected to the same or equally valid

terest in the grain of the person in possession. Where criticism on other grounds. Nowhere in this country

land is leased by the owner to a tenant upou shares, that I know of, is there a consistent effort being made

the landlord is entitled to his share of the grain when to mould the existing system of practice to the true

it is harvested. Lamberton v. Stouffer, 5 P. F. Smith, theory of the office of procedure. England alone, so

284. Before that the landlord cannot enter upon the far as my knowledge extends, has seen the true course

land demised to take his share, or do any other act and taken steps to follow it.

inconsistent with the tenant's right of possession. Glancing now at the form in which the law is ex

Under the act of June 16, 1836 (Hurd. 663, pl. 149), it is

undoubted that the purchaser of the landlord's title pressed, the view is blacker still. The ideal on the

under execution against him is entitled to the rent same lines would be a complete codification of the law

falling due after the acknowledgment of the sheriff's with periodical revision by experts to incorporate the deed whether it is payable in money or grain. Where new with the old. The original codification should be however there has been a severance of the landlord's on a plan radical enough to permit of whatever changes share of the grain before the sheriff's sale of the land, of substance are necessary to bring the body of the

that share does not pass by the sale. All this was law into correspondence with existing ideas, needs and

ruled in Hershey v. Metzgar, supra. The test is the conditions. On the other hand, subsequent revisions under a fi. fa. upon the owner's interest in his growing

severance. In Hershey v. Metzgar there was a levy when required should be revisions pure and simple, grain, and he elected to take the grain under the exreaching only to matters of form, and securing order, emption law, and it was appraised and set apart to arrangement and clearness. In this way the voice of him, with the knowledge and without the objection of the Legislature, as to what the law should be would al

the plaintiffs in the judgment, who subsequently purways be supreme and revision would do away with

chased the land. This was held to be a severance. In the defects of form in legislation incident to its con

Fullerton v. Shauffer, 2 Jones, 220, it was held that

when by the terms of the lease the tenant was to reduct by a mixed body. Judged by any such ideal it is

tain the rent, and apply it to the payment of a debt of chaos which exists. Our system of law is a wilderness the lessor for which the tenant was surety, this was enshrouded in the darkest of night. Case law and such an appropriation of the rent in advance, that no statute law stand together unblended and in the great- rent was due after the subsequent sheriff's sale of the est confusion. It has neither plan nor coherency in

land, and hence none passed to the purchaser. In the any part of it. The keenest eye is not sure of its way.

present case the question is whether a sale upon a fi.

fa. of the landlord's share of the growing grain before Is it a surprise that justice often misses her mark

actual severance, works of itself such a severance as and brings reproach upon herself? Her mission will

passes his title to it, as against a subsequent purchaser always be in complicated conditions of society an in- of the land. If the share were a subject of levy and tricate one, but now it is unnecessarily so and the sum sale upon a fi. fa., of course this result would be acof human suffering is thereby increased. We cannot

complished. But we think it is not. The landlord shift the responsibility for this from our shoulders,

has no title to his share of the grain until it has been and I have done the task I set myself if I have seri

barvested. Lamberton v. Stouffer, supra. The whole of ously raised a question of duty and iu however slight

the grain while it is growing belongs to the tenant, and

he must deliver to the landlord his share of it after a degree enlisted conscience in the work of reform.

severance. This of course is in the absevce of special

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The C. Railway Co., a Canada corporation, issued bonds se- abouts, was issued and secured by a second mortgage

cured by mortgage upon its property in Canada, which to trustees. After tbe issue of all the bonds the combonds with interest were payable in New York city. Be

pany found itself unable to pay its interest and othercoming financially embarrassed and unable to pay interest

wise financially embarrassed, and a joint committee, upon its bonds, it was authorized under an act of the

composed of three directors and three bondholders, Canadian Parliament to make an arrangement with its creditors, the act providing for the issue of new bonds in

after full consideration of all the circumstances, subexchange for the existing ones which should be a first lien

mitted to the company and to the bondholders upon its railway, and the interest of which was to be scheme of arrangement of the affairs of the company," warranted by another corporation which was solvent. which was approved at a meeting of the directors on Such an arrangement was sanctioned by the holders of the 28th of September, 1877. This scheme contemmore than two-thirds of the capital stock, and by the plated the issue of $14,000,000 of thirty-year bonds, holders of more than three-fourths of the bonds of the

bearing three per cent. interest for three years and company. The new bonds did not provide for unpaid interest on the old and bore a less rate of interest. Held,

five per cent. thereafter, guaranteed as to interest for that the arrangement was valid, the Canadian Parliament twenty years, by the New York Central and Hudson having authority to permit it, and that it was binding River Railroad Company, the first coupons being pagupon non-assenting holders of bonds residing in the able January 1, 1878. These new bonds were to be United States.

secured by a first mortgage on the property of the com

pany and exchanged for old bonds at certain specified the Southern District of New York. The opinion

rates. The old bonds of 1871 were to be exchanged for states the case.

the new at the rate of one dollar of principal of the WAITE, C. J. What is now known as the Canada old for one dollar of the new, nothing being given Southern Railway Company was originally incorpora

either for the past due coupons or the extensioa bouds ted on the 28th of February, 1868, by the Legislature of

executed under the arrangement in December, 1873. the Province of Ontario, Canada, to build and operate

The proposed issue of bonds was large enough to take a railroad in that Province between the Detroit and

up all the old indebtedness at the rates proposed, Niagara rivers, and was given power to borrow money

whether bonded or otherwise, and leave a surplus to in the Province or elsewhere and issue negotiable

be used for acquiring further equipment and for such coupon bonds therefor, secured by a mortgage on its

other purposes of the company as the directors might property, “ for completing, maintaining and working find necessary. This scheme was formally asseuted to the railway." Under this authority the company, on

by the holders of 108,132 shares of the capital stock out the 2d of January, 1871, at Fort Erie, Canada, made

of 150,000; by the holders of the bonds of 1871 to the and issued a series of negotiable bonds, falling due in

amount of $7,332,000 out of $8,703,000; and by the the year 1906, amounting in all to $8,703,000, with

holders of $1,590,000 of the second series of bonds out coupons for semi-annual interest attached, payable,

of $2,029,000 then outstanding. Upon the representaprincipal and interest at the Union Trust Company, in

tion of these facts to the Parliament of Canada the the city of New York. To secure the payment of

“Canada Southern Arrangement Act, 1878," was both principal and interest as they matured, a trust

passed and assented to in the Queen's came on the 16th mortgage was executed by the company covering “the

of April, 1878. railway of said company, its lauds, tolls, revenues

The statute after reciting the scheme of arrangement present and future, property and effects, franchises

with the causes that led to it, and that it had been asand appurtenances.” Every bond showed on its face

sented to by the holders of more than two-thirds of the that it was of this kind and thus secured.

shares of the capital stock of the company, and by the Before the 31st of December, 1873, the company be

holders of more than three-fourths of the two classes of came satisfied that it would be unable to meet the in- bonds, enacted that the scheme be authorized and apterest on these bonds maturing in the coming January,

proved; that the new bonds be a first charge "over all and so it requested the holders to fund their coupons

the undertaking, railway works, rolling stock and falling due January 1, 1874, July 1, 1874, and January 1,

other plant” of the company, and that the new bonds 1875, by converting them into new bonds payable on

be used for the purposes contemplated by the arrange1st of January, 1877, and by so doing only, in legal

ment, including the payment of the floating debt. effect, extend the time for the payment of the interest,

Section 4 is as follows: without destroying the lien of the coupons under the

“4. The scheme, subject to the conditions and promortgage, or otherwise affecting the obligation of the visos in this act contained, shall be deemed to have old bonds. Some of the bond holders funded their

been assented to by all the holders of the original first coupons in accordauce with this proposition, and ac

mortgage bonds of the company secured by the said cepted the extension bonds, but under the arrange

recited indenture of the 15th day of December, ment their coupons were not to be cancelled until the

one thousand eight hundred and seventy, and of all new bonds were paid.

coupons and bonds for interest thereon, and also by In this condition of affairs the Parliament of Canada,

all the holders of the second mortgage bonds of the on the 26th of May, 1874, enacted that the Canada

company secured by the said recited indenture of the Southern Railway, which was the railway built by the

15th day of March, one thousand eight hundred and Canada Southern Railway Company under its pro

seventy-five, and of all coupons thereon, and also by vincial act of incorporation, “be declared to be a work

all the shareholders of the Canada Southern Railway for the general advantage of Canada,” and a “body Company, and the hereinbefore recited arrangement corporate and politic within the jurisdiction of

shall be binding upon all the said holders of the first Canada," for all the purposes mentioned in, and with

and second mortgage bonds and coupons, and bonds all the franchises conferred by, the several incorporat

for interest thereon respectively, and upon all the ing acts of the Legislature of the Province. This, un

shareholders of the company." der the provisions of the British North America act,

Under the arrangement thus authorized the New 1867, passed by the Parliament of Great Britain " for

York Central and Hudson River Railroad ('ompany the Union of Canada, Nova Scotia and New Bruns- executed the proposed guaranty, and the scheme was wick, and the government thereof,'' made the corpora

otherwise carried into effect. tion a Dominion corporation and subjected it to the

The several defendants in error are and always have legislative authority of the Parliament of Canada.

been citizens of the State of New York, and were at On the 15th of March, 1875, another series of bonds

the time the scheme of arrangement was entered into amounting in the aggregate to $2,044,000, or there

and coufirmed by the Parliament of Canada, the

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holders and owners of certain of the bonds of 1871, and the first time a way in which insolvent and embarof certain extension bouds, these last having been de- rassed railway companies might settle and adjust their livered to them respectively at the Union Trust Com- affairs, but to authorize the Court of Chancery to do pany in the city of New York, where the exchanges what had before been done by Parliament. Lord were made, in December. 1873. Neither of the de- Cairns, L. J., said of it in Cambrian Railways Comfendants in error assented in fact to the scheme of ar- pany's Scheme, L. R., 3 Ch. 294: “Hitherto such comrangement, and they did not take part in the appoint- panies, if they desired to raise further capital to meet ment of the joint committee. Their extension bonds their engagements, have been forced to go to Parliabave nerer been paid, neither have the coupons on ment for a special act, enabling them to offer such adtheir bonds of 1871, which fell due on the 1st of July, vantages by way of preference or priority to persons 1875, and since, though demanded. The company has furnishing new capital as would lead to its being obbeen at all times ready and willing to issue and de- tained. And Parliament, in dealing with such appliliver to them the full number of new bonds, with the cations, has been in the habit of considering how far guaranty of the New York Central and Hudson River the arrangements proposed as to such new capital were Railroad Company attached, that they would be en- assented to or dissented from by those who might be titled to receive under the scheme of arrangement. cousidered as the proprietors of the existing capital of

These suits were brought on the extension bonds the company, either as shareholders or bondholders. and past due coupons. The company pleaded the The object of the present act * * * appears to be scheme of arrangement as a defense, and at the trial to dispense with a special application to Parliament of tendered the new bonds in exchange for the old. The the kind I have described, and to give a parliamentary Circuit Court decided that the arrangement was not a sanction to a scheme filed in the Court of Chancery bar to the actions, and gave judgments in each of and confirmed by the court, and assented to by certain them against the company for the full amount of ex- majorities of share-holders and of holders of debentension bonds and coupons sued for. To reverse these tures and securities ejusdem generis." And even now judgments the present writs of error were brought. in England special acts are passed whenever the pro

Two questions are presented for our consideration: visions of the general act are not such as are needed to 1. Whether the “Arrangement Act” is valid in meet the wants of a particular company. A special Canada, and had the effect of binding non-assenting act of this kind was considered in London Financial bondholders within the Dominion by the terms of the Association v. Wrexham, Mold and Connah's Quay R. scheme; and

Co., L. R., 18 Eq. 566. 2. Whether, if it did have that effect in Canada, the In Canada no general statute like that in England courts of the United States should give it the same has been enacted, but the old English practice of passeffect as against citizens of the United States whose ing a special act in each particular case prevails, and rights accrued before its passage.

Osler, J., said in Jones v. Canada Central R. Co., 46 1. There is no constitutional prohibition in Canada Up. Can., Q. B. 261, “our statute books are full” of against the passage of laws impairing the obligation of legislation of the kind. The particular question in contrects, and the Parliament of the Dominion had in that case was whether after the establishment of the 1878, exclusive legislative autbority over the corpora- Dominion government the provincial parliaments had tion and the general subjects of bankruptcy and in- authority to pass laws with reference to provincial corsolvency in that jurisdiction. As to all matters within porations which would operate upon debentures payaits authority, the Dominion Parliament has “plenary ble in England, and held by persons residing there, legislative powers as large and of the same nature as but it was not suggested either by the court or counsel those of the Imperial Parliament.” City of Frederic- that a statute of the kind, passed by the Dominion ton v. The Queen, 3 Can. Sup. Ct. 259.

Parliament in reference to a Dominion corporation, On the 20th of August, 1867, the Parliament of Great would not be valid as a law. So far as we are advised, Britain passed the “Railway Companies Act, 1867," the parliamentary authority for such legislation has 2 Stat. 1332; 30, 31 Vict., ch. 127. This act provides never been doubted either in England or Canada. Many among other things, for the preparation of “Schemes cases are reported in which such statutes were under of Arrangement" between railway companies upable consideration, but in no one of them has it been intito meet their engagements and their creditors, which mated that the power was even questionable. can be filed in the Court of Chancery, accompanied by In Gilfillan v. Union Canal Co., at the present 'term, a declaration in writing under the seal of the company, it was said that the holders of bonds and other obligaand verified by the oaths of the directors to the effect tions issued by large corporations for sale in the that the company is unable to meet its engagements market and secured by mortgages to trustees, or with its creditors. Notice of the filing of such a scheme otherwise, have by fair implication certain contract must be published in the Gazette, and the scheme is relations with each other. In England we infer from to be deemed assented to by the holders of mortgages, what was said by Lord Cairns in Cambrian Railways bonds, debenture stock, rent charges and preference Company's Scheme, supra, they are considered as in a shares when assented to in writing by the holders of sense part proprietors of the existing capital of the three-fourths in value of each class of security, and by company, and dealt with by Parliament and the courts the ordinary shareholders when assented to at an ex- accordingly. They are not there any more than here, traordinary general meeting specially called for that corporators, and thus necessarily in the absence of purpose. Provision is then made for an application to fraud or undue influence bound by the will of the mathe court by the company for a confirmation of the jority as to matters within the scope of the corporate scheme. Notice of this application must be published powers, but they are interested in the administration in the Gazette, and after hearing, the court, if satis- of a trust which has been created for their common fied that no sufficient objection to the scheme has been benefit. Ordinarily their ultimate security depends established, may confirm it. Section 18 is as follows: in a large degree on the success of the work in which

· The scheme when confirmed shall be enrolled in the corporation is engaged, and it is not uncommon the court, and thenceforth the same shall be binding for differences of opinion to exist as to what ought to and effectual to all intents, and the provisions thereof be done for the promotion of their mutual interests. shall against and in favor of the company and all In the absence of statutory authority or some proparties assenting thereto or bound thereby, have the vision in the instrument which establishes the trust, like effect as if they had been enacted by Parliament. nothing can be done by a majority however large,

This act it is apparent was not passed to provide for which will bind a minority without their consent.

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