return. It is bad: as, even if sect. 16 of "The Lands 1852. V. GREAT WESTERN Railway Company. Clauses Consolidation Act, 1845" (8 & 9 Vict. c. 18.), The QUEEN applies to such an undertaking as this, there is nothing in the return to shew that The Great Western Railway Company are unable, even now, to comply with that section. If they had averred that they could not procure a subscription contract to be executed, and so could not exercise their compulsory powers, it might, if sect. 16 applied, be a good return. That point is before the Court in Regina v. Ambergate, &c., Railway Company (a). But such an averment would be material and traversable. It is, however, clear that sect. 16 of "The Lands' Clauses Consolidation Act, 1845," does not apply to the present Act. It is in terms made applicable “where the undertaking is intended to be carried into effect by means of a capital to be subscribed by the promoters of the undertaking.” It is not applicable to an extension Act in which the capital is furnished by other means. Sir F. Kelly, Solicitor General, contrà. Sect. 16 of "The Lands Clauses Consolidation Act, 1845," applies. The special Act authorizes the Company to raise the capital; by shares, it is true: but still section 16 applies. The Company are in this case the promoters; they are to furnish the funds; and they ought to execute a contract. There is a further point. Since the return was made, the 22d July 1852 has passed. It appears on the record that the compulsory powers to purchase land have expired. Can the Court, now, issue a peremptory mandamus commanding the Company to exercise those (a) Argued on this day. The Court took time to consider their judgment, and did not deliver judgment in the present term. VOL. I. S E. & B. 1852. V. powers? It may be said that the expiration is a conseThe QUEEN quence of the improper delay of the Company. That may afford a reason for punishing those guilty of improper delay, if there be any, as for a contempt of Court; but it cannot render it proper to issue a peremptory writ commanding what on the face of the record is impossible. GREAT WESTERN Railway Company. Fitzherbert, in reply. The Company could not subscribe any contract. It would be ultra vires, and not binding; Cohen v. Wilkinson (a), Colman v. Eastern Counties Railway Company (b). Lord CAMPBELL C. J. I am of opinion that in this case there must be judgment for the Crown. On the general question, whether there is an obligation to make a line for which an Act has been obtained, I think we must be governed by the judgments given in Regina v. York & North Midland Railway Company (c) and Regina v. Lancashire & Yorkshire Railway Company (d). I wish again to express my great desire that the first opportunity should be taken to have this very important and difficult question decided in the House of Lords: but, till the decision is reviewed, I must adhere to the opinions I then expressed. I must, therefore, assume in the present case that the writ is good, and that the only question is as to the sufficiency of the return. The part which we are now to consider rests entirely on "The Lands Clauses Consolidation Act, 1845," sect. 16. In the first place, I am of opinion (a) 12 Beuv. 125. 138. (b) 10 Beav. 1. that sect. 16 does not apply to such an undertaking as the one now in question. Is this, in the words of sect. 16, an undertaking "intended to be carried into effect by means of a capital to be subscribed by the promoters of the undertaking"? I am clearly of opinion that it is not. We need only refer to the special Act, which contemplates other means for carrying into effect the line. It is an extension Act; the line is to be made by The Great Western Railway Company, who may from other sources have sufficient funds for the purpose; but, in case they have not enough, the Act provides means by which they can raise additional capital. That is quite different from the state of things contemplated in "The Lands Clauses Consolidation Act, 1845," sect. 16. But, supposing that section did apply, still the return would be bad. It does not shew that the promoters are not able to procure the subscription to the contract. That is shewn in the return in Regina v. Ambergate, &c. Railway Company (a), on which we have taken time to deliberate. But here the return is, merely, that the capital has not been subscribed. It is not said that The Great Western Railway Company have tried to have it subscribed and failed, nor that they were or are unable to have it subscribed. Even if the subscription was a condition precedent to their obedience to the writ, they shew no incapacity to obey. Therefore the return is bad. As to the last point: it admits of no doubt. If, when the writ issued, there was not time to obey it before the expiration of their powers, that should have been returned. Such returns have been made; the averment that there was not sufficient time has (a) Ante, p. 257, note (a). 1852. The QUEEN V. GREAT WESTERN Railway Company 1852. V. GREAT WESTERN Railway Company. been traversed; and the issue on that point tried, and found The QUEEN against the defendants. But no such return was made here; and we must now assume that, when the writ issued, there was ample time to obey it. But in consequence of this bad return the time has passed. And now the Solicitor General argues that the defendants may take advantage of their own wrong in disobeying the writ. It is a good writ, and a bad return; and we are bound to award a peremptory mandamus. COLERIDGE J. I shall say nothing on the general point, nor on the last point. But I wish to point out that the special Act incorporates only such parts of “The Lands Clauses Consolidation Act, 1845," as are applicable to and not inconsistent with its provisions. Now I think that, if The Great Western Railway Company were to execute such a contract as is contemplated in section 16, it would not be binding upon them. For the special Act points out (in sect. 4) the manner in which the Company may raise the funds. All they have to do is to obey this. Any other method in which they were to bind themselves to raise funds, as by a subscription contract, would be ultra vires, and not binding. I think therefore that sect. 16 is inapplicable to and inconsistent with the provisions of the special Act. WIGHTMAN J. I agree with my brother Coleridge in what he has just said. It is clear that sect. 16 contemplates a different state of things from this. On the other points I concur with my Lord. ERLE J. On the general point, I merely say that I adhere to what I said in Regina v. York & North Midland Railway Company (a), so far as it is applicable to the present case. With regard to sect. 16, I am clearly of opinion that the prohibition in that section does not apply to the powers given to The Great Western Railway Company by this special Act. Peremptory mandamus awarded. (a) Ante, p. 178. 1852. The QUEEN V. GREAT WESTERN Railway Company. THE following order was this day made. IN pursuance of an Act, passed in the session of Par liament held in the 15th and 16th years of the reign of Her Majesty, c. 73., entitled "An Act to make provision for a permanent Establishment of Officers to perform the duties at Nisi Prius, in the Superior Courts of Common Law, and for the payment of such Officers, and of the Judges Clerks by Salaries, and to abolish certain Offices in those Courts:" We, the undersigned, being Two of the Commissioners of Her Majesty's Treasury, have caused the under mentioned Tables of Fees to be prepared, specifying the Fees proper to be demanded and taken in the Offices under mentioned, and at the Judge's Chambers, in the Superior Courts of Common Law; and that all other Fees in such Offices and Chambers should be abolished: namely: Monday, |