181


A  mortgage  of  a  railroad  not  yet  built,  or  of  property  not  yet
acquired,  is  not  forbidden  by  the  policy  or  the  letter  of  a  statute
limiting  the  amount  of  bonds  which  may  be  issued  and  secured
by  mortgage  to  tlie  amount  of  the  capital  actually  paid  in  at  the
time  of  the  issue.^

§  155,  Power  to  mortgage  Uncalled  Capital.  —  The  power  to
mortgage  uncalled  capital  has  been  discussed  in  numerous  Eng-
lish cases,  and  the  doctrine  now  accepted  may  be  shortly  stated
as  follows  :    Future  calls  are  not  "  property  of  the  company,"  ^

For  this  reason  a  power  which  merely  extends  to  the  mortgage
of  property  will  not  authorize  a  mortgage  of  uncalled  capital."^

But  there  is  nothing  in  the  Companies  Act  of  1862  and  its
amendments  which  either  expressly  or  by  necessary  implication
prohibits  a  company  from  executing  such  a  mortgage.*

The  question  whether  the  company  possesses  the  power  is
merely  one  of  the  proper  construction  of  the  memorandum  and
articles  of  association.^


1  Baker  v.  Guarantee  T.  Co.  (N.  J.  Eq.,
1895),  31  Atl.  Rep.  174.
2  Bank  of  South  Australia  v.  Abrahams,
L.  R.  6  P.  C.  562.
2  Bank  of  South  Australia  v.  Abrahams,
L.  R.  6  P.  C.  562  (company  empowered
to  charge  property)  ;  Stanley's  Case,  4
DeG.,  J.  &  S.  407  (company  empowered
to  charge  property  and  funds).  These
cases  were  distinguished  in  Howard  v.
Patent,  etc.  Co.,  L.  R.  38  Ch.  Div.  156
(1883),  where  a  mortgage  of  future  calls
was  held  valid  under  a  power  to  mortgage
the  "  property  and  rights  "  of  the  company.
