1853. V. CORBETT. CROMPTON J. It seems that, in order to avoid a seizure quousque, a nominee is admitted to hold until The QUEEN the tenant really entitled, whether as heir or appointee, comes in. Such a nominee is tenant only till the power is executed. When it is executed, his admittance is gone and the appointee under the power, whether he be identical with the former tenant or not, must be admitted, after the appointment, before he can surrender. Lord CAMPBELL C. J. The prosecutor would be in the same situation if he were not one of three customary heirs in gavelkind. Judgment for the defendants. The QUEEN against WILLIAM RAINES, Esquire. Thursday, April 28th. court has still replevin comes in ques tion, subject to the power of removal by either party under sect. DALL, in last Term, obtained a rule calling on The county William Raines, Esquire, Judge of the County cognizance of Court of Yorkshire, holden at Howden, to shew cause though title why a mandamus should not issue commanding him to hear a plaint in replevin, entered for trial in the said Court, between George Allen and Daniel Hutton. From the affidavits it appeared that Hutton distrained the goods of Allen as for rent; and that the question c. 95. between Hutton and Allen involved the title to the premises. The Judge declined to try the cause, on the ground that he had no jurisdiction. The rule was obtained on behalf of Allen. No recognizances had 121 of stat. 9 & 10 Vict. 1853. The QUEEN V. RAINES. been given by either party under stat. 9 & 10 Vict. c. 95. s. 121. The Judge has no other, but wishes to The question turns Hugh Hill now shewed cause. interest in the question one way or have the directions of this Court. on the construction of stat. 9 & 10 Vict. c. 95. sects. 58, 119, 120 and 121. Sect. 58 enacts "that all pleas of personal actions, where the debt or damage claimed is not more than 207.," "may be holden in the county court, without writ." "Provided always, that the court shall not have cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments," "shall be in question." Had this section stood alone, the county court would clearly not have had cognizance of an action of replevin in which the title to the premises is in question. But, by sect. 119, it is "declared and enacted, that all actions of replevin in cases of distress for rent in arrear or damage faisant which shall be brought in the county court shall be brought without writ in a court held under this Act." Sect. 120 provides: "That in every such action of replevin the plaint shall be entered in the court holden under this Act for the district wherein the distress was taken." Sect. 121 provides: "That in case either party to any such action of replevin shall declare to the court in which such action shall be brought " (amongst other things) "that the title to any corporeal or incorporeal hereditament” “is in question,” "and shall become bound, with two sufficient sureties" &c., "then, and not otherwise, the action may be removed before any court competent to try the same in such manner as hath been accustomed." [Lord Campbell C. J. It seems to me that, taking the sections together, compliance with the condition in sect. 121 is required, before the action can be removed, although the title comes in question. Crompton J. The effect is to make actions in replevin commence as they did before the Act; and, if they are to be removed into a Superior Court, it must be in the manner prescribed by sect. 121.] Udall was not called on to argue in support of his rule. Per CURIAM (a). 1853. The QUEEN V. RAINES. Rule absolute. (a) Lord Campbell C. J., Wightman, Erle and Crompton Js. 1853. [Friday, April 29th.] An Act for making a railway recited that the for mation of the railway would be beneficial to the public, and that the Company were willing to execute it: and the power of compulsorily The remaining Cases in this volume, upon writs of error from the Court of Queen's Bench, are reported rather before their order in date, that they may be contained in the same volume with the reports of the decisions below. IN THE EXCHEQUER CHAMBER. (Error from the Queen's Bench.) The YORK and NORTH MIDLAND RAILWAY COM- JUDGMENT was given in the Queen's Bench, for the Crown, on demurrer to the return to a mandamus commanding the defendants to complete their line: Regina v. York and North Midland Railway Company (a). Upon this judgment, the defendants below brought error. Joinder in error. The case was argued in Hilary Term last (6), by taking lands, with the then ordinary powers, was given to the Company. A mandamus issued, commanding the Company to complete the line. Held by the Exchequer Chamber, reversing the decision of the Queen's Bench, that the mandamus ought not to go, no duty being cast on the Company to make the line; the words of the Act being enabling, not obligatory, and there being nothing in the subject matter or context to require that they should be construed as compulsory. And that the case was not affected by the fact that the Company had completed a part of the line. (a) Ante, p. 178, where the pleadings are reported. (b) January 28th and 29th. Before Jervis C. J., Pollock C. B., Cresswell, Williams and Talfourd Js., and Parke, Alderson, Platt and Martin Bs. Such Sir Fitzroy Kelly, for the plaintiffs in error (defendants below), and Hugh Hill, for the Crown. of the arguments as were not used in the Court below are sufficiently stated in the following judgment. Cur, adv. vult. JERVIS C. J., in this term (April 29th), delivered judgment. This was a writ of error from a judgment of the Court of Queen's Bench, upon a demurrer to a return to a mandamus commanding the plaintiffs in error, the defendants in the Court below, to purchase lands and make a railway from Market Weighton to Cherry Burton, pursuant to stat. 12 & 13 Vict. c. lx., the York and North Midland Railway Act of 1849. After argument and time taken to consider in that Court, my brother Erle was of opinion that the plaintiffs in error were entitled to judgment; but Lord Campbell was of a different opinion and, my brother Crompton concurring with him, the prosecutors had judgment; and a peremptory mandamus was awarded. We have carefully considered this case; and, having examined the authorities cited, and the statutes, are of opinion that my brother Erle was right in the view which he took of it; that the judgment ought to have been given for the plaintiffs in error and not for the prosecutors; and that the judgment of the Court of Queen's Bench must be reversed. The facts which raise the question may be shortly stated. In 1846 the plaintiffs in error obtained an Act empowering them to make a railway from York, through Market Weighton and Cherry Burton, to Beverley. They made a portion of this line, from York to Market 1853. YORK and NORTH MIDLAND Railway Company V. The QUEEN. |