sion, a receiver will not as a general rule be appointed : Kerr, 34; Daniell, 1665, 1666.

In Redfield on Railways, vol. 2, p. 363, it is said: "The rule in courts of equity in regard to appointing a receiver of mortgaged property is, that it will be granted in all cases where the income of the estate is required to meet the incumbrance, and is at the present time being so applied as not to be legally applicable to reduce the incumbrance." There is no case in which the Court appoints a receiver merely because the measure can do no harm: Orphan Asylum Society v. McCartee, 1 Hopkins, N. Y. Ch. 429 ; Blondheim v. Moore, 11 Md. 365.

At p. 63 of the Weekly Notes for 1884, there is the note of a case of I. v. K., in which it was said that a receiver will only be granted where the amount of the judgment warrants the expense, and there is fair reason to suppose that there is something to receive.

I have no doubt that the observation of the late Chief Justice of this Court, when Vice Chancellor, in the case of Simpson v. The Ottawa and Prescott R. W. Co., 1 Ch. Chamb. R. 126, accurately expresses the duty of the Court in cases of this nature. He says (p. 128), "I agree that where the Court cannot interpose usefully it should not interfere at all, and that it should interfere only so far as it can interfere usefully."

In proceedings for the attachrieat of debts, where a new legal right was conferred by statute upon creditors, the Common Law Procedure Act, 1860, (Imperial) expressly gives the Judge a discretion to refuse to interfere, where, for any reason, the remedy sought would be worthless or

vexatious.

This consideration, I apprehend, a Court always acts on when its jurisdiction is invoked by any one who has not an absolute right to its exercise in his favor, as, for example, in proceedings for mandamus and prohibition.

The case before us is very different fro.n those in which a receiver has been appointed of a railway conducting its own business and carrying on its traffic arrangements in

the ordinary way, as for instance, in Simpson v. Ottawa and Prescott R. W. Co., 1 Ch. Chamb. R. 126; Peto v. Welland R. W. Co., 9 Gr. 455; Fox v. The Toronto and Nippissing R. W. Co., 28 Gr. 212; Lee v. The Credit Valley R. W. Co., 29 Gr. 480.

The case of Re Manchester Railway Co., 14 Ch. D. 645, is a decision upon the right of a judgment creditor under the Companies' Act, 1867, and does not assist the plaintiff for the reasons pointed out by my brother Ferguson.

The circumstances, under which the judgment creditor here asks for a receiver, are of a special and unusual character and it is necessary to refer to them in some detail.

The Port Dover and Lake Huron Railway Company was incorporated by 35 Vict. ch 53 (0). In October, 1877, the plaintiff recovered judgment against the company for $5,109 upon their note, for the price of materials &c., supplied for the construction of the railway.

A large bonded debt then existed, which in point of date was prior to the plaintiff's judgment, and which by the Act of incorporation and amending Act of 40 Vict. ch. 74 (0), constituted in certain proportions a first and second preferential claim and charge upon all the property, real and personal, of the company.

The road was also then, and had been from the year 1874, in the hands of the bondholders, the interest on the bonds having fallen into arrear, and was being worked by them for their own benefit with the consent of the shareholders.

The revenue was not sufficient to pay the interest on the bonds, so that when the bill in this suit was filed it is manifest that the plaintiff was not entitled to the relief he now asks, or to have a receiver appointed as against the bondholders.

The arrangement referred to continued until the 10th April, 1880, when by agreement bearing that date, the Port Dover Railway, and the Stratford and Huron Railway were subject to a contemplated amalgamation, and changes con

sequent thereon, leased to the Grand Trunk Railway Company for a term of twenty-one years.

Under this agreement both railways were operated by the Grand Trunk Railway Company, until the 22nd April, 1881, and the amount received from that company was paid to the bondholders, and applied in payment of working expenses not covered by receipts from the road while operated by them.

By an Act passed 4th March, 1881, 44 Vict. ch. 69, the Port Dover Railway, the Stratford and Huron Railway, and the Georgian Bay and Wellington Railway were amalgamated and formed into a new company called the Grand Trunk, Georgian Bay, and Lake Erie Railway Company; and all the powers, privileges, rights, claims, property, and effects of each of the amalgamated companies were vested in the new company, subject to the provisions of the Act. These provisions, so far as they are important, are the following:

Section 4. The assets of each amalgamated company, including a share of any future assets of the company (the Lake Erie Company) earned by that portion of the line of the amalgamated company in the proportion the length of the latter (against which any claim or lien exists) bears to the whole length of the line of the former, shall continue liable to satisfy all claims, liens, &c., against the amalgamated company originally liable therefor, &c.; provided also, that the rights of any person having any special lien &c., upon the lands, buildings, tolls, or other property of either of the a nalgamated companies shall not be affected; save that they, and all liens and claims mentioned in the section, shall be subject to the provisions of the Act regarding the issue of bonds by the company.

Section 35, sub-section 1, empowers the company to issue first and second preference mortgage bonds for the purpose of redeeming outstanding bonds of the Port Dover Company, the Stratford Company, and for the general purposes of the company, and to mortgage to trustees" such portion of the line of the railway and undertaking and such of the

lands, tolls, revenues, and other property of the company as may be mentioned in the mortgage.

Sub-section 2 limits the bond issue to £1600 sterling per mile in length of the railway constructed.

Sub-section 3 declares that mortgage to secure the first mortgage bonds shall be a lien and charge on the property embraced in it in preference and priority to all other charges thereon, and in like manner that the mortgage to secure the second mortgage bonds shall be a lien &c., next after and subject only to the first mortgage.

Section 36 empowers the company to redeem all outstanding bonds of the Port Dover Railway and the Stratford Railway.

Section 44 authorizes the company to enter into agreements with any other company for the building, leasing, equipment, or maintenance of the railway, or any part thereof, for any period, and upon any terms they may think proper.

On the 22nd April, 1881, pursuant to the powers conferred by the Act, an agreement was entered into between the Lake Erie Company (G. T. G. B. & L. E. Co.) and the Grand Trunk Railway Company, by which the former transferred or leased to the latter their line of railway, its. works and appliances of all kinds, for the term of twentyone years.

The Grand Trunk Railway Company agree to work, &c., repair, renew, &c., the railroad of the Lake Erie Company, provide rolling stock, &c., and do everything necessary to work it efficiently, and also to pay 25 per cent. of the gross receipts from all sources on the line of the Lake Erie Company computed, after certain usual deductions, to be applied towards payment of the interest on the bonds. authorized to be issued under the Act and agreement. Until the issue of the bonds this payment was to be made to such person as the Lake Erie Company should designate; and after the issue into the bank, or other place where the bonds should be made payable.

As soon as 25 per cent. of the gross receipts exceeds

$187.50 per mile, per annum, the surplus of the 25 per cent. over the $187.50 is to be divided into two equal parts, one to be retained by the Grand Trunk Railway Company; the other to be paid over by them in the manner already mentioned.

This surplus, if any, is to be ascertained at the end of each year in rendering the accounts for the last half of the

year.

The agreement then provides that the Lake Erie Company shall create a first mortgage on the whole of their line to secure an issue of first mortgage bonds $727,500, bearing interest at five per cent., of which $227,500 are to be allotted in respect of the Port Dover Company, and a second mortgage to secure an issue of second mortgage bonds to the extent of $782,500, of which $180,000 are to be allotted in respect of the Port Dover Railway.

The proportions so allotted are for the purpose of getting in and extinguishing the outstanding bonds of that company. The second mortgage bondholders are entitled to interest when and to the extent the percentage of gross receipts payable to the Lake Erie Company, after payment of the interest on the first mortgage bonds, $36,375, enables the Grand Trunk Railway Company to pay it.

The agreement further provides for the keeping accurate accounts by the Grand Trunk Railway Company of the receipts of the line from all sources, to be made out to the end of each half year, and that the schedule agreed on for the rate of division of freights charged on traffic &c., may be readjusted at the instance of either party every five years during the continuance of the agreement.

On the 30th July and 2nd August, 1881, mortgages contemplated by the agreement and authorized by the Act were executed by the Lake Erie Company to trustees on behalf of the bondholders. They recite fully the agreement of the 22nd April and the provisions thereby made for payment of the interest.

It was admitted that bonds had been issued to the full extent authorized by the Act, and that notice of the issue had been given to the Grand Trunk Railway Company.