depending on the legal effect of a covenant,, the purchased shares, and a sufficient sum to had no locum standi in a court of equity to cover the unpaid calls was ordered to be placed apply for an injunction. That in cases of this to a separate account, and laid out, and the sort, it is the duty of the court to put matters income meanwhile paid to the persons entitled in a course of legal inquiry, in order to establish to the general residue. Jacques v. Chambers, the validity of the legal right before it grants 4 Carrow & Oliv. 499. an injunction, and in the meantime to make such order as will secure to either party what he may ultimately be found entitled to.

That, as the loss in one case could be ascertained, but the loss in the other, if the injunction continued, could not be ascertained, or compensation given, the injunction should be dissolved, the company undertaking to pay such sum of money by way of damage, as the court should direct, and giving security.

Where the interference of the court depends on a disputed legal right, the court will not leave it to the option of a defendant to prepare a case or not as he may think proper, for the purpose of taking the opinion of a court of law, but for its own security, will order a case to be prepared to be settled by the Master, if parties differ. Rigby v. Great Western Railway Company, 4 Carrow & Oliv. 491.

And see Directors' Powers; Managing Committee; Parliamentary Deposit; Payment of Deposits.

INVESTMENT OF MONEY IN LAND.

1. Construction of 8 & 9 Vict. c. 18, s. 80.Costs.-Under the 8 & 9 Vict. c. 18, s. 80, the court is authorized, upon an application for that purpose, in giving the costs attendant upon the investment of money in two distinct purchases of land, unless it should be shown that such investment was not a desirable one. Exparte Martin, 34 L. O. 463.

2. Where a sum of money is in court to be invested in land, the court will order a reference as to a proposed investment, but will refuse to make any prospective order as to any other investment in the event of the one proposed being rejected. Exparte Pumfrey, re Oxford, Worcester, and Wolverhampton Railway Company, 4 Carrow & Oliv. 490.

3. On a petition for investment of purchase money of lands taken by a railway company, and payment of dividends to tenant for life, the court will not, under special circumstances, dispense with the usual affidavit of the petitioner as to the goodness of title, &c. Re The Eastern Counties Railway Company, Exparte Hollick, 4 Carrow & Oliv. 498.

LEGACY OF SHARES.

MANAGING COMMITTEE.

Creditor, action at law by.-Injunction.Demurrer.-A bill was filed by L., stating himself to be a partner in a projected company, (which afterwards failed,) against 16 of the managing committee, and against B., a creditor of the company, who had commenced an action against L. for a debt due by the company, praying an injunction to restrain the ants in his name, and to restrain the committee action brought by B., or by the other defendfrom distributing the assets of the company, except in discharge of the debts; and praying that all proper accounts might be taken. The defendant B. demurred for want of equity, for multifariousness, and for want of parties. Demurrers overruled. Lewis v. Billing and others, 4 Carrow & Oliv. 414.

PARLIAMENTARY DEPOSIT.

1. Injunction.-Amalgamation.-Jurisdiction of Court.-On a bill filed, supported by affidavit charging the managing committee of the Warwick and Worcester Railway Company with misconduct and mismanagement, the plaintiffs obtained an injunction exparte to restrain some of the defendants and certain other persons not defendants to the bill, from acting on an order for payment out of court to them of a sum deposited by them in the name of the said company; but, on motion to dissolve that injunction, it appearing that a portion only of the sum deposited had been contributed by the Warwick and Worcester Company, and the remainder by two companies with which the Warwick and Worcester Company had amalgamated, but against which the bill sought no relief. Held, that the injunction, as to the portion of the fund contributed by the Warwick and Worcester Company, should continue, but should be dissolved, as to the portion contributed by the other two companies.

That although the words of the 4th section of the 1 & 2 Vict. c. 117, are imperative, yet the inherent authority in a court of equity to repress fraud, and to exercise control over trustees, empowers it to look into the circumstances, and to decide whether the command of the legislature ought or ought not to be complied with. Goodmun v. De Beauvoir and others, 4 Carrow & Oliv. 380.

Liability of testator's estate for unpaid calls thereon. A testator who at the time of his 2. Injunction notwithstanding order under act. death was possessed of 50 original and 70 pur--An order was made by the Vice-Chancellor chased shares in a railway, the calls whereon of England, on petition for payment to certain had not all been made, by his will gave 30 persons of a sum of money deposited on behalf whole shares in the said railway to the trustees, of a projected railway company, in compliance for the benefit of a married woman for life, without power of anticipation, and 30 shares to B., 25 original and 5 purchased shares having been allotted by the executors to each of the legatees. Held, that the testator's estate was liable to pay the calls on the original and on

with the standing orders of the House of Commons; but on bill filed stating circumstances which would render it improper that such payment should be made, an injunction to restrain the parties from receiving the sum deposited, was, notwithstanding the order granted

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Analytical Digest of Cases: Law of Railways.

by Vice-Chancellor Knight Bruce. Castendeick an account of the deposits, &c., and also for v. De Burgh, 4 Carrow & Oliv. 386.

PAYMENT OF MONEY INTO court.

an injunction to restrain three of the persons in whose names the parliamentary deposit had been made from prosecuting an order which Mistake.-Jurisdiction. The assignees of A. they had obtained on petition for payment out and B., (a creditor of A.,) made opposing claims of court to them of the sum deposited: Held, to a sum of money due from a railway com- on motion for an injunction in the terms of pany for work done by A., the assignees having the prayer of the bill, that the committee of brought an action against the company to re- the South and Midland Company had no cover it. The railway company paid the sum due by them into court. The assignees proceeded to stay their action, with a view to obtain the payment to themselves of the sum in court, whereupon the company filed a bill in equity, and applied for an injunction. Held, that this was not a case for the interference of a court of equity. Great Western Railway Company v. Cripps, 4 Carrow & Oliv. 473.

2. Costs. Where a railway company purchases land settled upon a tenant for life, with remainder in tail, and the purchase money is paid into court; on an application by the tenant in tail in possession to have the money paid to him, the court is not authorised by the 44th section of the act in giving him the costs of the disentailing deed, or the other costs attendant on the payment, out of the purchase money. Exparte Langton, 34 L. O. 510.

PAYMENT OF DEPOSITS OUT OF COURT.

right to destroy the individuality of their company or the original character, rights, and powers of the projectors, and that they were not justified in paying the money of their cestui que trusts for an indefinite demand, and so as to form an item of account between themselves and another company.

Injunction accordingly granted. Gilbert v. Cooper and others, 4 Carrow & Oliv. 396.

2. Under similar circunstances to those set forth in the preceding case, the Lord Chancellor granted an injunction, but without costs, against those persons only who were not directors of the original company, but refused it as to those who were. An order for payment of the deposits out of court to three of the directors of the South and Midland Company was accordingly made on another petition being presented by them to the Lord Chancellor for that purpose. Lewis v. Cooper and others, 4 Carrow & Oliv. 413.

PERMISSIVE AND COMPULSORY POWERS.

1. Injunction-Jurisdiction of court.-The provisional committee of management of a projected railway (the South and Midland) were, Taking land. Injunction. Rival Com by the subscription contract, invested with full panies.-The defendants, a railway company, power and authority to fix upon, and from time obtained an act for making certain branch to time to alter and vary, the points or places at railways, and it was thereby provided that which the intended railway should commence nothing therein contained should extend to and terminate, and the intermediate course, prejudice, diminish, alter, or take away any route, or line thereof; and it was, amongst of the rights, privileges, powers, or authorities other things, agreed that they should have vested in the plaintiffs (also a railway comample power to carry all or any part or parts of pany) under their act; but all rights, privi the undertaking as described in the parliamen- leges, and franchises of the said company, and tary contract into effect, and to make contracts all the powers, authorities, and provisions in with railway or canal proprietors, and generally the said last-mentioned act contained were to adopt all such measures whatsoever as any saved and reserved to them as if the defendboard or meeting or committee of management might in their judgment think necessary or expedient, or might be advised to adopt, and particularly to apply for an act, &c.

The committee having, by default of their engineer, failed to comply with the standing orders of the House of Commons, entered into an arrangement to amalgamate with another railway company (the Manchester and Poole) who had complied therewith, and to pay in the required parliamentary deposit for them, and also to pay them 8,000l. on account of the expenses incurred, which payment was to form an item to the credit of the South and Midland Railway Company.

The sum of 55,000l. was accordingly deposited in court to the credit of the Manchester and Poole Railway Company in the names of three of the directors of the first and two of the last mentioned railway company.

Some of the shareholders in the South and Midland Railway Company having protested

ants' act had not been passed; so always, nevertheless, that such rights, privileges, franchises, powers, authorities, and provisions be not exercised in such a manner as to prevent the defendants from compulsorily taking and using land of sufficient breadth to admit of the formation of the extensions or branches thereinbefore authorized, such extensions or branches, however, not to exceed respectively twenty-two feet in breadth at the level of the rails, with sufficient breadth for the necessary slopes.

The plaintiffs were empowered by their act to take certain lands compulsorily, and also to take certain other lands with consent. The defendants had power to take compulsorily certain lands scheduled in their act, amongst which were certain pieces of land which the plaintiffs had purchased with the consent of the owners subsequently to the date of the defendants' act.

The defendants gave notice of their intenagainst this arrangement, filed their bill for tion to take under their compulsory power a

Analytical Digest of Cases: Law of Railways.

75

greater quantity of the pieces of land pur-share of the expenses incurred, filed his bill chased by the plaintiffs than was required for to restrain a creditor of the company from. the line of their railway for stations, &c, prosecuting an action at law against him to whereupon the plaintiffs filed a bill, and ap-recover a debt in the bill, stated to have been plied for an injunction to restrain the defendants from taking more of their land than was necessary for their line of railway.

assigned to the committee, in order that they might use it as a means of compelling payment of the 1007., and also to restrain the Held, that the plaintiffs having occupied the executive committee of the company from ground before the defendants, were entitled to commencing any action against him, or parthold so much of it as was not actually wanted ing with the deposits in their hands, except for the formation of the defendant's railway. in payment of the liabilities of the company, Injunction granted, with liberty to plaintiffs and praying that accounts might be taken of the assets and liabilities, the plaintiff offering to pay what might properly be found due by him.

to bring an action to try the legal right. Lancaster and Carlisle Railway Company v. Maryport and Carlisle Railway Company, 4 Carrow and Oliv. 504.

PLANS DEPOSITED,

The managing committee (all of whom together with the creditor were defendants) demurred for want of equity and for want of parties: Held, that, although a plaintiff may have a good defence to an action at law, he is not on that account precluded from proceeding in equity to restrain the action.

Deviation.-Standing Orders. - Datum line. -The plaintiff was the owner of a house near the public road, and connected therewith by an avenue and a lodge; a railway company That the defendants must distribute the deposited plans, &c., whereby it was shown assets in their hands in discharge of the liabilithat they intended to cross the plaintiff's ave-ties of the company, and were not justified in nue five hundred and twenty feet from the attempting to extort, by means of an action, an lodge under a bridge, raising the level of the arbitrary sum which the directors had fixed as roadway of the avenue only two feet, and by plaintiff's share of the expenses. Demurrer means of a cutting fifteen feet in depth. overruled. Fernihough v. R. Leader and others.

The plaintiff, relying on the plans and sec-4 Carrow and Oliv. 373. tions, did not oppose the bill in parliament, which accordingly passed into an act.

PROMOTERS OF RAILWAY COMPANY.

The railway company afterwards gave no- Gratuity.-Agreement.-Demurrer. — Plaintice of their intention to deviate from the ori- tiff, the promoter of a railway project, ginal plans, and to make their cuttings sixty-entered into an agreement with a committee one feet nearer the plaintiff's house, and to make a bridge over his avenue seventeen feet high.

On appeal from the Court of Session in Scotland, an application by the plaintiff for an interdict to prevent the company from crossing the plaintiff's avenue in any other manner than that shown by the original plans refused, notwithstanding it was shown that the measurements in the original plans had been mis. calculated with reference to the datum line, and that the defendants' cuttings would, according to those plans, exceed the vertical powers of deviations given to the railway company.

formed for carrying the same into effect, and consisting of 13 persons, (A., B., C., D., E., F., G., H., I., K., L., M., and N.,) that he should receive 1,500 shares (deposit free) for promoting and launching the company, and should be retained as their solicitor and receive the amount of costs and expenses incurred when there should be sufficient funds in hand for that purpose.

A subscription deed was entered into, whereby all the members of the original committee (except A.), together with O., were nominated as the provisional committee of the company, and the usual powers of removing and filling vacancies were given them, and it was declared Held, that parties are bound by what it that the majority of votes present at any meetis represented on the deposited plans and sec-ing of the committee should bind the rest and tions so far only as such plans and sections also the shareholders. are incorporated in or specially referred to by

the act.

That the court will not regard what is done under the standing orders of the house, but will only look at the act itself.

That the plans are binding to determine the level of the railway with reference to the datum line, but not to the surface level of the land over or through which the railway passes. North British Railway v. Tod, 4 Carrow and Oliv. 449.

PRELIMINARY EXPENSES.

Action at Law. - Parties. The plaintiff, who was a shareholder in a projected railway company, but who had refused to pay 100l., a sum fixed by the executive committee as his

The provisional committee removed I. and K., two of the members of the original committee, and nominated P. and Q. in their places.

The terms of the original agreement were afterwards varied, and when varied were consented to by the committee and entered in the minute book of the company.

The bill was filed against all the members of the original and provisional committee, except A., I., and K., for the specific performance of the agreement as varied for restraining the members in whose hands the funds of the company were, from parting with any of them until plaintiff's demands had been satisfied, and for a declaration that plaintiff was entitled to a lien thereon.

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Analytical Digest.—Business of the Courts.-Central Criminal Court.

The bill (among other things) charged that shares until the day for declaring that option the stipulation as to the retainer of the plaintiff had passed, were not entitled to have shares as the solicitor of the company, had been long allotted to them in exchange for their loan since abandoned by both parties. notes. Bill dismissed with costs. Campbell v. London and Brighton Railway Company, 4 Carrow and Oliv. 475.

Held, by the Vice-Chancellor of England, that a demurrer, for want of equity, and for want of parties, be overruled.

That an agreement containing a stipulation which might vitiate it becomes perfect, and such as a court of equity will sanction when plaintiffs mutually release each other from that stipulation.

Held, by the Lord Chancellor on appeal, that the demurrers be allowed, on the ground that the bill contained no allegations to show that the defendants had any scrip to deliver, but rather statements from which the contrary might be inferred. Columbine v. Chichester and others, 4 Carrow and Oliv. 432.

See Bankrupt.

SCRIP SHARES.

SHAREHOLDERS, ORIGINAL.

See Assignment; Deposits.

See Allotment.

STAMP.

TITHES COMPENSATION.

London assessment, how construed.-Under the Act for Tithes in London, (37 Hen. 8, c. 12,) the plaintiff, rector of St. O., was entitled to claim 2s. 9d. in the pound upon the rent reserved, in lieu of tithes, on all houses in his of their act, purchased and took 33 houses in parish. A railway company, under the powers the said parish, being bound by the 33rd section of one of their acts to pay such yearly sums in respect of such houses, according to the last assessments thereof to the 25th March last, as would be equal to the loss in tithes which the

Held, that the assessment mentioned in the

Railway Act does not necessarily mean the assessment to the relief of the poor, but refers to the annual charge which the rector had made at the time mentioned in the act in respect of the annual value of the house as fixed by agreement or otherwise between himself and the occupier.

Loan Notes.-By a resolution of the Lon-rector might sustain for want of occupiers by don and Brighton Railway Company, the reason of such taking. directors were empowered to raise 300,000l. by an issue. of loan notes payable at the end of 5 years, bearing interest in the mean time with an option to the holders to convert them, at the expiration of not more than 3 years, into quarter shares, under an act to be obtained for that purpose. The directors published a dan advertisement to the above effect, and thereby fixed the 10 Feb., the 15 April, and 15 July, for payment of the instalments of the sums allotted, and interest was to commence from time of payments. On pay ment of the whole sum the company delivered to the payer a loan note, whereby they promised to pay the bearer 100l., and interest half yearly, on August 15 and February 15, and on this note was an indorsement stating that an application was intended to be made to parliament for an act under the terms of which the bearer would be entitled on 15th Feb., 1845, provided previous notice should be given to convert his loan note into quarter shares of the company.

An act was obtained, and thereby the directors were empowered by an order of a general meeting to raise sums sufficient to pay off money borrowed, the sums raised to be divided into distinct shares, and to be appropriated as by the order of such meeting should be determined. By a general meeting the shares authorized by the act were ordered to be raised and allotted among the holders of loan notes in the manner and on the terms directed by the

act.

The plaintiffs did not declare their option until June 1845, but nevertheless claimed to have shares allotted to them in exchange for their loan notes, and on the company refusing filed their bill: Held, that the original contract between the parties was not varied by the sub

sequent act and resolution.

That the plaintiff's not having protested against the indorsement, nor given notice of their desire to convert their loan notes into

That the right of the rector to claim tithes was not limited to the amount of the annual in respect of the houses so taken, but in the value which at the time of taking was payable event of the company rebuilding houses producing a larger rental than those they had originally taken, such houses would be liable to new assessment.

a

That where no agreed annual value existed, the sum received by the rector for tithes must be presumed to be taken on the real annual value. Letts v. Blackwall Railway Company, 4 Carrow & Oliv. 530.

BUSINESS OF THE COURTS.
Exchequer of Pleas.

Wednesday, Nov. 17, 1847. THIS Court will hold Sittings on Wednesday the 1st, and Thursday the 2nd December, and on Monday the 6th of December next, and on every following day thenceforth, until, and including, will proceed in disposing of the business then pendSaturday 11th December next, and at such Sittings ing in the paper of Demurrers, and in the paper of New Trials.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE,

OPENING OF PARLIAMENT.

CONTEMPLATED MEASURES

RE

and is in many respects imperfect and objectionable. The appeal to the Home Secretary, although resorted to from necessity, can hardly be considered constitutional, and is far from being satisfactory in any case. The enormous power with which the indiAPPEALS IN CRIMINAL CASES AND FROM vidual who holds the seals of the Home

LATING TO THE LAW.

THE COUNTY COURTS.

Department is entrusted of pardoning conHER MAJESTY'S speech upon the open-victed criminals, or mitigating the severity ing of parliament contains no reference to of their sentences, being exercised without any proposed measures affecting the admi- any disclosure of the motive grounds, or nistration of the law, but it is very currently circumstances, necessarily lacks the sancreported and believed in legal circles, that tion and support of public opinion. When a bill has been prepared, and is to be intro- we hear that an offender is pardoned, or a duced by the law officers of the Crown, at sentence commuted, we know not whether an early period of the session, establishing the result is to be ascribed to the convica court of appeal in criminal cases, and also tion that the alleged offender is innocent, giving a power of appeal to the superior or that a doubt has been created as to his courts from the decisions pronounced by the guilt, or simply that the applications in his judges of the New County Courts. So far behalf have been urgent and persevering; as we can ascertain, the principle of both or when we learn that an appeal to the the proposed measures will meet with all Home Secretary to reverse a sentence has but universal approbation. The details been ineffectual, how can we be sure that will, of course, require the exercise of great the fiat which consigns a fellow subject to circumspection and caution, combined with ignominy-perhaps to death - proceeds an extensive and accurate practical know- from a confidence in the justice of his senledge. tence, or an ignorance of the merits of his As may be supposed, the contemplated case? The system of private appeals to an changes stand upon a totally different foot- officer of the executive government to ing. In criminal cases, there is now an correct the inevitable misapprehensions, appeal from the verdict of a jury and the errors, and accidents which must occasionsentence of a judge to the Secretary of ally occur in the administration of the State for the Home Department, and in criminal law, is repugnant to the spirit of such cases, when any question of law arises our institutions, and is liable, if not to which the presiding judge conceives admits abuse, at all events to abundant misconof any reasonable doubt, it is usual to re- struction. Of late years, we have reason serve such a question for the consideration to believe, that applications of this nature of all the judges. Practically, therefore, to the Secretary of State have increased in there is an appeal in criminal cases upon number and urgency, to an extent and deevery question of law and of fact, although gree which interferes materially with the that appeal is not granted ex debito justitiæ, performance of the other public duties VOL. XXXV. No. 1,029.

E