Held, nevertheless, that the requisition of the writ was proper, as it must be taken to imply that the Company should raise money by the means pointed out in the act, and it did not appear to be impossible or illegal that they should do so.

And (on demurrer) that a return, alleging merely that the Company had taken no step, either by purchase of lands or otherwise, for making the railway, was no answer. Regina v. Lancashire and Yorkshire Railway Company, 228.

See Ante, 2, post, 5.

4. Branch authorized by extension act: provision of capital.

Mandamus to a railway Company to make a branch authorized by an extension Act, which incorporated stat. 8 & 9 Vict. c. 18. Return: that the capital, required to make the branch, was not subscribed for by any contract, according to stat. 8 & 9 Vict. c. 18. s. 16., and that the branch could not be made without the exercise of the compulsory powers to take land. On demurrer :

Held, that stat. 8 & 9 Vict. c. 18. s. 16. is not applicable to an extension Act, where the funds are to be furnished by the Company:

Held, also, that, even if stat. 8 & 9 Vict. c. 18. s. 16. were applicable, the return shewed no incapacity to obey the writ; as it did not aver that defendants were unable to procure the execution of the subscription con.

tract.

It appeared on the record that the period for the exercise of the compulsory powers had expired, since the return and before the judgment.

Held, that a peremptory mandamus must be awarded, though, since the return, compliance had become impossible. Regina v. Great Western Railway Company, 253.

See S. C. in error, post, 5.

5. Special provisions shewing the power to be permissive.

Mandamus to make a line to R. It

appeared, on the record, that, after the making of the return but before the judgment of the Court below, the powers of the Company had expired. The Court of Queen's Bench, having held that, notwithstanding this, a peremptory mandamus should be awarded, the propriety of the decision on this point was questioned by the Judges in the Exchequer Chamber: but, the judgment was reversed on another ground: ideo quære.

In the special Act, it was enacted, that "it should be lawful for" defendants to make a line to R., the line in question, "and if they shall think fit” a branch. And that the line to R. "shall commence at" &c., "and shall terminate at R.," and the branch, “if the same shall be constructed, shall be made" &c. In the Act was a power to lease the branch, with the powers for making it.

Held that it was not obligatory on the Company to make the line to R., the peculiar words of the special Act taking the case out of the general rule. Great Western Railway Company v. The Queen, 874.

6. Compliance illegal the statutory capital not having been subscribed.

Mandamus to complete a railway pursuant to an Act incorporating stat. 8 & 9 Vict. c. 18. Return, inter alia, that the undertaking was one to be carried into effect by means of a capital to be subscribed by the promoters, and that the capital had not been subscribed for under a contract, pursuant to stat. 8 & 9 Vict. c. 18. s. 16., nor could the defendants then or at any time procure it to be so subscribed for. Plea, by way of estoppel, that defendants had taken the lands of a third party named, on part of the line, in exercise of the compulsory powers. Demurrer. Held, that the return was good, as it shewed that a compliance with the command in the writ, which would necessitate the exercise of the compulsory powers, would be illegal. Held, also, that the plea of estoppel was bad, as the matter disclosed by it was res inter alios acts. Regina v. Ambergate &c. Railway Company, 372.

7. What return does not shew inability.

Mandamus to a railway Company to make a line, authorized by an Act. The time limited for the exercise of the compulsory powers for acquiring had expired. The writ contained a suggestion that the defendants had given notices, and made contracts, by virtue of which they were 66 either actually in possession of, or entitled to acquire, the fee simple in possession of, all the lands required for the purpose of constructing" the line. Return: That the defendants were not nor are "either actually in possession or entitled to acquire the fee simple or possession of all the land required for the purpose of constructing" the line.

Held: that the return was bad in substance, as, consistently with its truth, the defendants might have it in their power to purchase the part of which they were not possessed: and therefore that the return did not shew inability. Regina v. Great Western Railway Company, 774.

8. Effect of partial change by subsequent act, 178. Ante, 1.

9. Effect of impossibility, 178, 228, 253. Ante, 1, 3, 4, 5.

10. Effect of expiration of powers, 178, 228, 253. Ante, 1, 4, 5.

11. Effect of the work having become superfluous, 178. Ante, 1.

12. Effect of failure of funds, 178, 253. Ante, 1, 4.

13. Permissive words when not obligatory, 178, 228, 253, 858, 874. Ante, 1, 3, 4, 5.

14. No difference where there has been no beginning to execute the powers, 178, 216, 228. Ante, 1, 3. 15. Effect of powers being temporary,

228.

Ante, 3.

VII. Compulsory powers.

VIII. Mandamus to.

1. To complete line of railway: what returns insufficient, 178, 228, 253. Ante, VI. 1, 3, 4.

2. What returns sufficient, 372. Ante, VI. 6.

3. Effect of partial completion, 858. Ante, VI. 2.

4. When mandamus does not lie, 858, 874. Ante, VI. 2, 5. IX. Arbitration Clauses.

1. To what claims they extend, 754. Arbitration, I. 2.

2. Time for making award, 754. Arbitration, I. 2.

X. Liability for wrongful acts and omission of directors.

1. Neglect to register transfer, 111. Ante, IV. 1.

2. Wrongful forfeiture of shares, 111. Ante IV. 1.

COMPENSATION.

Settlement by arbitrations. When the liability to compensate is denied, 694. Arbitrations, I. 1.

COMPLETION.

Of line of railway, 178, 228, 253, 858, 874. Company, VI.

COMPOSITION.

VOL. I.

IV.

h

Borough constable under municipal corporation's act.

Upon an issue joined on a plea of Non cepit in an action of replevin, defendant, under stat. 5 & 6 W. 4. c. 76. ss. 76. 133., may shew that he was a constable appointed for a borough under sect. 76., and took the goods within the county wherein the borough is situate, but without the borough, on a charge that they had been stolen.

Replevin lies for goods unlawfully taken: the remedy is not confined to the case of goods taken by way of distress. Mellor v. Leather, 619.

II. Places in which he may act.

1. Borough constable acting in county, 619. Ante, L.

2. Limit of stats. 7 Jac. 1. c. 5., and 21 Jac. 1. c. 12. s.5.,619, 626. Ante, I.

2. "And in case" introducing an al

ternative, 99. Contract, I.

CONTINUANCE.

rupt, IV.

11. "To the like effect," 617. Municipal Corporation, I.

12. "Need be," 723. Particulars, I. 1. 13. "Neglect," 111. Company, IV. 1.

14 "All pleas of personal actions," 22. County Court, I. 1.

15. "Premises," 121. Poor, I. 1. 16. Real estate," 727. Devise, I. 17. "Repayment of money to be thereafter lent," 164. Mortgage, I. 18. "Sale," 54. Partition, I. 1.

19. "It shall be lawful," 178, 228, 858, 874. Company, VI.

20. "Shall be completed within five years," 858, 863. Company, VI.

2.

App. lxxxiii. 31.

II. Of notice of trial or inquiry, App.

ix. 34. 36.

CONTRACT.

I. Alternative provisions, optional or contingent, to endeavour to procure employment or to pay a sum.

Declaration in assumpsit stated that, by agreement between defendant and plaintiff, after reciting that defendant had requested plaintiff to enter into defendant's employment in a manufacture, and that for that purpose plaintiff had agreed to leave his then employment on 1st July then next, "it was witnessed that the said parties thereto did mutually agree as follows:" first, plaintiff agreed that he would serve defendant in such business for seven years at a salary of 100l. per annum, subject to the cessor of the salary and the determination of the agreement as after mentioned. Secondly, defendant agreed that he would, from and after 1st July, and during the continuance of the agreement, pay to plaintiff the salary by monthly payments; "and, if the said defendant should from any cause whatsoever give up the said business, or not require" plaintiff's "services, then that " defendant" would use his best endeavours to procure for the said plaintiff employment in some similar business, and for which he should receive a salary of not less than 1007. per annum; or in case" defendant "should be unable to do so, then the said defendant would pay to the said plaintiff the yearly sum of 1007. during the residue of the said term of seven years." That plaintiff had always performed and fulfilled all things on his part &c.

1st breach, That defendant, during the continuance of the term, refused to suffer plaintiff to continue in his employ, and then wrongfully dis

charged plaintiff therefrom without reasonable or probable cause.

2d breach, That, although &c., (discharge as before), defendant did not use his best or any endeavours to procure, nor did he procure, plaintiff employment in some similar business for which he should receive a salary of not less than 100l. a year, but had wholly failed to find plaintiff such employment.

Held, that the 2d breach was well assigned for that, by the agreement, it was not open to defendant, under the circumstances, to choose between using his best endeavours to find plaintiff the situation, and simply paying him 1007. per annum: but that he was bound to use his best endeavours &c. in the first instance, and could resort to the mere payment of salary only upon the failure of these endeavours.

That it was not necessary for plaintiff to aver a request by him to defendant to use his best endeavours &c.

That the general averment of performance, on general demurrer, amounted to an allegation that plaintiff was ready and willing to accept such situation.

That the language of the breach implied that a reasonable time for procuring such situation had elapsed.

Plea, as to 2d breach, that at the time when plaintiff was discharged as in the said breach mentioned, defendant was, "and thence hitherto has been, wholly unable to procure for the plaintiff any such employment as in the said agreement mentioned."

raised an immaterial issue; it being consistent with the plea that defendant had not used his best endeavours at all. Rust v. Nottidge, 99.

II. Statutory.

1. By obtaining act for execution of works of public utility, 178, 228. Company, VI. 1, 3. But see in Error, 858, 874. Company, VI. 2, 5. 2. By taking land under compulsory