be like securities for the present purpose. The appellants' I STIRLING L.J. I am of the same opinion. The question. in this case is whether a debenture issued by the appellant company comes within sub-head 3 of the heading "Marketable C. A. 1904 MOUNT LYELL MINING AND RAILWAY COMPANY V. INLAND REVENUE SIONERS. Collins M.R. C. A. 1904 MOUNT MINING AND v. INLAND REVENUE Stirling L.J. Security" in the 1st schedule to the Stamp Act, 1891, in which case the proper stamp duty is 1s. for every 101. of the money thereby secured, or within sub-head 4, in which case the proper stamp duty is 6d. for every 207. of the money thereby secured. Sub-head 4 is as follows: "Marketable security (except a Colonial Government security) being such security as last aforesaid given in substitution for a like security duly stamped in conformity with the law in force at the time when it became subject to duty." To my mind the question really depends upon the meaning of the words "given in substitution for" a like security in sub-head 4 of the schedule. It was contended that "in substitution for," as there used, means "in the place of " in the widest sense. In support of that contention reference was made to the use of the same words in s. 1 of the Stamp Act, 1891, which provides that the duties specified in the Act shall be "in substitution for" those theretofore chargeable. On the other hand it was pointed out that the word "substituted" has a less wide meaning when used in connection with the stamp duty under the heading "Mortgage, Bond, Debenture, Covenant (except a marketable security otherwise specially charged with duty)" in the 1st schedule. The words used in sub-head 2 of that heading are "being a collateral, or auxiliary, or additional, or substituted security." It appears to me that the word "substituted" as used there is equivalent to the words "given in substitution for" used in sub-head 4 of the heading "Marketable Security." This seems to me to be shewn by the use of the word "substituted" in the exemption which follows the 5th sub-head of the heading "Marketable Security." The typical case of a "substituted security" for the purposes of sub-head 2 of the heading "Mortgage, &c.," is one in which the parties to the transaction remain the same, but, one piece of property having been released from the charge, another piece of property is by some instrument made subject to a charge for the same debt, in which case that instrument may be said to be a "substituted security." It seems to me that the use of the word "substituted" in that sub-head throws some light on the meaning of the words "given in substitution for" in the portion of the schedule C. A. 1904 MOUNT LYELL with which we are dealing. In my opinion the transaction in this case differs so widely from the type of transaction which appears to be contemplated as a substitution of securities by the Act that the debenture given by the appellant company MINING AND cannot be said to be a "marketable security. . . . given in substitution for a like security" within the meaning of sub-head 4 of the heading "Marketable Security" in the 1st schedule to the Stamp Act, 1891. MATHEW L.J. I am of the same opinion. The main contention for the appellants was that, in order to constitute the debentures in question like securities for the purposes of sub-head 4 of the heading "Marketable Security" in the 1st schedule to the Stamp Act, 1891, it was sufficient that they should be securities so far alike in form as to be subject to the same stamp duties. I cannot so interpret the Act. I think that, in order to see whether one security is like another for its purposes, there must be an inquiry into the respective characters of the two securities. On such an inquiry in this case it appears that the securities in question are unlike in most important particulars. The parties to the debentures are not the same, and the property on which they are secured would appear to be different. It was argued that, nevertheless, the transaction might properly be said to be a giving of a security "in substitution for a like security," and therefore the language of sub-head 4 applied. I cannot accept that suggestion. It appears to me that the operation carried out in this case was an exchange of one security for another of a different character, which is not the same thing as a substitution of one security for another of a like nature. Appeal dismissed. Solicitors for appellants: James White & Leonard. E. L. RAILWAY COMPANY V. INLAND REVENUE COMMIS SIONERS. 1904 .Dec. 5. In re FANSHAWE. Ex parte LE MARCHANT. Bankruptcy-Secured Creditor-Proof- Increase in Value of Security — In 1895 a debtor, against whom a receiving order had been made, lodged a scheme providing for the payment of 10s. in the pound to his unsecured creditors, exclusive of M., whom he alleged to be fully secured. The scheme was duly accepted by the creditors. M. took no part in the proceedings, but lodged a proof in which he assessed the value of his security at one-half of the amount of his debt, and claimed to prove as an unsecured creditor for the other half, and his proof was admitted. The scheme fell through in consequence of M.'s proof, which he refused to withdraw, and the debtor's estate paid only 1s. in the pound. In January, 1903, M.'s security became greatly increased in value, and in May, 1904, he applied under rule 13 of Sched. II. to amend his proof by revaluing his security on the footing that he was fully secured : Held, that M. had done nothing to disentitle himself to the relief he claimed, and that his application must be granted. THIS was an application by creditors for leave to withdraw their proof and revalue their security under these circum stances: In March, 1895, a receiving order was made against the debtor. The first meeting of the creditors was held on April 1, 1895, and the debtor in his statement of affairs returned the applicants as fully secured creditors for 52001. In May, 1895, the debtor lodged a scheme of arrangement under which some friends were prepared to provide a sum sufficient to pay his unsecured creditors 10s. in the pound. This scheme was duly approved at a meeting of the creditors held on June 18, 1895. The applicants were mortgagees of the real estates of the debtor subject to certain prior incumbrances. They did not attend any of the meetings of the creditors, but on July 3, 1895, they lodged a proof in which they put their total debt at 52081., and assessed the value of their security at 26047., and claimed to prove as unsecured creditors for the remaining half of their debt. Correspondence then ensued between the 1904 In re. LE MAR- Ex parte. solicitors of the applicants and the solicitors of the debtor, in which the applicants were pressed to withdraw their proof, FANSHAWE, partly on the ground that they were fully secured, and partly on the ground that unless the proof were withdrawn the scheme of arrangement would fail and there would be no dividend for the general body of the creditors. The applicants declined to withdraw their proof, and it was admitted at 26041. Consequently the scheme was abandoned, the debtor was adjudicated bankrupt, and his estate paid a dividend of only 1s. in the pound, which the applicants received on their said proof. At this time the equity of redemption in the applicants' mortgage was considered to be of no value. One of the incumbrances having priority over the applicants' security was a jointure of 300l. per annum in favour of the bankrupt's wife contingent on her surviving him. She died in January, 1903, and consequently their security was greatly increased in value. In December, 1903, the bankrupt died. In May, 1904, the applicants applied under rule 13 of Sched. II. for leave to amend their proof and the valuation of their security on the footing that they had become fully secured. The trustee refused to give leave without the sanction of the Court. Muir Mackenzie, for the applicants. Under rule 13 a creditor can revalue his security "at any time" before actual redemption by the trustee: Ex parte Norris (1); In re Newton. (2) In the present case the applicants are not too late, and they have done nothing to deprive themselves of their right. Hansell, for the trustee. Ex parte Norris (1) shews that some limit must be placed on the words "at any time." Here, after the event happened that increased the value of the mortgage, there is an unexplained delay of nearly sixteen months before the applicants moved in the matter. It is submitted that they should have applied promptly after the event happened. Secondly, the Court will not allow amendment when the position of the parties has been fixed by what has previously occurred: In re Newton (2); In re Safety Explosives (1) (1886) 17 Q. B. D. 728. (2) [1896] 2 Q. B. 403. |