from Twiverton to Radstock, "would be of great public advantage": and that "it is also expedient that certain portions of the line of The Great Western Railway" should be widened and enlarged. Sect. 4 enacted: "that it shall be lawful for The Great Western Railway Company from time to time to raise, by creating new shares or stock," 380,000l. Sect. 5 enacted that, after the 380,000%. has been subscribed for, and one half paid up, "it shall be lawful for the directors of the said Great Western Railway Company" to borrow or mortgage 126,636 Sect. 7: "that it shall be lawful for the said Great Western Railway Company, if they think fit, to raise the sums authorized to be borrowed on mortgage by this Act, or any part thereof, by creating new shares of the said Company, instead of borrowing the same." Sect. 11: that "it shall be lawful for the said Company to make and maintain the said railways to Henley and to Radstock respectively, and, if they think fit, the diverging lines, or any of them, shewn in the plans, from such last mentioned branch railway to various collieries lying adjacent thereto, and also to widen and enlarge the said Great Western Railway." Sect. 13: "that the said intended railway first above mentioned shall commence by a junction" at Twyford," and shall terminate in" Henley; "and the said intended railway secondly above mentioned shall commence by a junction" at Newton," and shall terminate" at Radstock. "And the said branch railways, if the same shall be constructed, shall be made in the lines defined on the plans deposited." Sect. 30: "That it shall be lawful for the said Company" "to let on lease the said diverging lines of railway from the branch railway to Radstock hereby 1853. GREAT WESTERN Railway Company V. The QUEEN. 876 1853. GREAT WESTERN Railway Company V. The QUEEN. authorized to be made or any of them, or any part thereof, either before or after the construction of the same, with all the powers of the said Company in reference thereto, to the owners or others interested in the adjacent collieries and works to which the same respectively extend, for such term or terms of years, at such rent or rents, or subject to such agreements as to the construction thereof by the said last mentioned parties and upon such other conditions as may be mutually agreed upon between such last mentioned parties and the said Company." The line in question was the line to Radstock. Butt, for the plaintiffs in error (defendants below), prayed that the judgment of the Court of Queen's Bench might be reversed, and contended that the case did not differ in principle from York and North Midland Railway Company v. The Queen (a). Welsby, contrà. The language of the special Act in this case is peculiar: and it may therefore be contended, without impeaching the judgment of this Court in York and North Midland Railway Company v. The Queen (a), that the Act is obligatory on the Company. The recital makes a distinction between the two lines and the alterations to be made in the line of The Great Western Railway. The making of the lines "would be of great public benefit:" but, as to the alterations, it is only stated that they would be "expedient." Sect. 11 marks the same distinction: the Company are "to (a) Ante, p. 858. make and maintain" the two lines; "and, if they think fit," to make certain branch lines and the alterations in the main line. So, again, by sect. 13, the two lines "shall commence" and "shall terminate;" but, as to the branch lines, the words are changed to "the said branch railways, if the same shall be constructed, shall be made." It seems, taking all these sections together, that the intention was that the branch lines and alterations should be made "if the Company thought fit," as it was expedient that they should be; but that the two lines, the "making of which would be of great public advantage," should be made at all events. [Cresswell J. Sect. 30 may in some degree explain the change of language on which you rely. It is lawful for the Company to make the two lines, and the branch lines: but, if they think fit, the Company may allow the branch lines to be made by other persons.] Butt was not called on to reply. JERVIS C. J. We are all of opinion that this case is governed by the decision in York and North Midland Railway Company v. The Queen (a), and that the difference in the language is explained, as my brother Cresswell points out, by the power to lease the line given in sect. 30. In the same way, by sect. 5, "it shall be lawful" to raise money by mortgage; and, by sect. 7, the Company are empowered, "if they think fit," to raise the money by new shares. It is clear that in both cases the words are permissive. (a) Ante, p. 858. 1853. GREAT WESTERN Railway Company V. The QUEENn. 1853. GREAT WESTERN Railway Company V. I wish to notice one point, lest, by passing it over, I should be understood to assent to the doctrine laid down in the Court below, as to the effect of the expiration of the powers of the Company, after the return, but The QUEEN. before the peremptory mandamus was awarded. It is not necessary to decide this point: but I consider it one well worthy of much consideration. There is a very great difference between an indictment for not fulfilling a public duty, and a mandamus commanding the party liable to fulfil it. PARKE B. I perfectly concur with my Lord Chief Justice; and upon both points. The rest of the Court (a) concurred. Judgment reversed. (a) Pollock C. B., Cresswell and Williams Js., Plutt and Martin Bs. 1853. IN THE EXCHEQUER CHAMBER. Error from the Queen's Bench.) BODDINGTON against CASTELLI. [Thursday, May 4th.] recover a par tial loss on a valued policy THE Court of Queen's Bench having given judgment Assumpsit to for the plaintiff below, on demurrer to the fourth plea, and the rejoinder to the sixth plea, the defendant below brought error. of insurance on goods on a voyage to a The pleadings are stated in the report of the case market: prebelow (a). The case was argued in this term (b). Bramwell, for the plaintiff in error, defendant below. The principal question arises on the rejoinder to the replication to the plea of bankruptcy. The facts disclosed on the record are, that there was one contract by mium 60 per cent., to return 23s. 9d. if landed in the United King dom. Plea: 1: Set-off for Demurrer. judgment of the Queen's Bench, a bad plea. Plea. 2. Bankruptcy of plaintiff before action. Replication: A transfer of the goods, with an assignment of the contract of insurance, to F., before the bankruptcy, with an aver ment that plaintiff sued as trustee for F. Rejoinder: that the risk ended in the United Kingdom before bankruptcy; and that the right to have a return of premium was not transferred from plaintiff before bankruptcy. Demurrer. Held, by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that, the causes of action being both vested in the plaintiff before bankruptcy, and being such that distinct actions might have been brought by him whilst sui juris, the plaintiff was entitled to sue in his own name as trustee for that cause of action in which he had no beneficial interest at the time of his bankruptcy. Per Jervis C. J., Cresswell and Williams Js., Parke, Platt and Martin Bs., dubitante Pollock C. B., it would have been otherwise had the plaintiff then had any beneficial interest, however small, in the cause of action itself. (a) Castelli v. Boddington, ante, p. 66. (b) April 29th and 30th. Before Jervis C. J., Pollock C. B., Cresswell and Williams Js., and Parke, Platt and Martin Bs. |