CASE.

For nonpayment of monies pursuant to a statute, 81. Action, II. 1.

CENTRAL CRIMINAL COURT.

Transfer of indictment to. Regina v. Sill, 553 n.

CEPI CORPUS.

Proceedings on return of. App. xvii.

90.

CERTIFICATE.

Offence of using false certificate of rating, 647. Beer.

CERTIORARI.

I. Clauses taken away.

1. Transfer of indictment to Central Criminal Court notwithstanding. Regina v. Sill, 553 n.

2. Defective adjudication of costs, when it does not take the case out of the operation of the clause.

em

By a local and personal act (6 G. 4. c. lxxii.) Commissioners were powered to levy rates for the improvement of the town of N., payment of which might be enforced by distress under the warrant of a justice. The Commissioners might sue and be sued by their clerk. Appeal to Sessions was given against any rate or order made under the Act; and the Sessions had power to give costs to either party. No order, rate or judgment was to be quashed for want of form or removed by certiorari.

appellant to pay costs to the clerk of the Commissioners.

Semble, per Crompton J., that this was right, and that it was not necessary that the order should be to pay the costs to the clerk of the Court, under stats. 11 & 12 Vict. c. 43. s. 27., 12 & 13 Vict. c. 45. s. 5.

But held that, supposing the order erroneous in this respect, it was a mere defect in form, and there was no want of jurisdiction so as to bring the case out of the operation of the clause taking away the certiorari. Regina v. Binney, 810.

3. The clauses do not apply where no offence is shewn, 286. Game, II.

II. Costs.

1. On indictment removed by certiorari: who not within statute.

The defendant was committed by the Lord Mayor of London for trial for an indecent assault. An indictment, found at the Central Criminal Court, was removed into this Court by certiorari, at the instance of the defendant. The defendant was convicted. The prosecution was conducted by the city solicitor, in obedience to the directions of the Lord Mayor, given at the time he committed the defendant; and the expenses were defrayed out of the City funds. Held, that the case was not within stat. 5 & 6 W. & M. c. 11. s. 3., inasmuch as the Lord Mayor was not personally liable for the expenses, and could not be considered as a prosecutor. And a side bar rule taken out to tax the costs was set aside. Regina v. Wilson, 597.

2. Costs defrayed by subscriptions. Regina v. Cook, 599 n,

CESTUI QUE TRUST.

for payment of a rate which had been

the Sessions, by a judgment, given

laid; and B. appealed to Sessions:

after stat. 12 & 13 Vict. c. 45., dis

CHANCELLOR.

CO-DEFENDANTS.

When differently circumstanced as to matter of aggravation, 360. Execution, I. 1.

CODICIL.

Construction of, 727. Devise, I.

COGNOVIT.

I. Delivery to master, and filing. App. vi. 25.

II. Judgment on.

Declaration unnecessary, and not allowed on taxation. App. lxv. 5.

COLLUSION.

Impeaching conviction on the ground of, 501. Conviction, I. 1.

COLOUR.

Colourable exercise of discretion, 81, 85. Action, II. 1.

COMMISSION.

To take affidavits. App. xxv. 148.

COMPANY.

Chartered and joint stock companies, and companies incorporated by sta

tute.

I. Repeal or revocation of charter for breach of condition subsequent, 310. Charter, I. 1.

II. Subscription contract.

1. When not necessary, 253. Post, VI. 4.

2. What return does not shew that it cannot be procured, 253. Post, VI. 4.

III. Corporate funds.

1. Effect of failure, 178. Post, VI. 1. 2. Implication as to, 228. Post, VI. 3. 3. Subscription contract not required for extension, 253. Post, VI. 4. 4. Where compulsory powers have been partially acted on, though the statutory capital has not been subscribed, 372. Post, VI. 6.

IV. Registration of shares and transfers.

1. Liability of company to action for omission to register transfer.

Declaration in case against an incorporated railway company (under stat. 9 & 10 Vict. c. clvi., incorporating the Companies Clauses Consolidation Act, 1845,) stated that, before and at the time of the execution of the deed of transfer after mentioned, N. appeared by a book of defendants kept by defendants in pursuance of the provisions of The Company's Clauses Consolidation Act, 1845, called The Register of Shareholders, to be, and then was, lawful owner of 300 shares in the undertaking of defendants; that plaintiff bought the shares of N., and Ñ., by a deed duly stamped, signed, sealed and delivered by him to plaintiff, transferred the shares to plaintiff, subject to the conditions on which N. held them at the time of the execution; that the deed was according to the form in Schedule B. to the last mentioned Act; and that plaintiff afterwards caused the same to be delivered to G., the secretary of defendants and their agent in that behalf, to be kept by them, in order that defendants might enter a memorial in The Register of Transfers, and endorse such entry on the deed of transfer; and might on demand deliver a new certificate to plaintiff as purchaser of the shares, according to the provisions of the last mentioned Act. Breach, that defendants did not, nor did G. nor any other person on defendants' behalf, enter any memorial &c., or indorse any entry &c., whereby plaintiff had been deprived of his right and

title to appear in the books of de fendants as holder and proprietor of the shares: whereby, and by reason of N. still appearing by The Register of Shareholders to be holder and proprietor of the shares, and of calls having been made by defendants, after the committing &c., upon persons so appearing by the last mentioned book to be holders and proprietors of the said shares, and (among others) upon N., and by reason of the failure of N. to pay the calls (plaintiff having received no notice of forfeiture), defendants, to wit by the directors of the Company, did, according to the provisions of the last mentioned Act, declare the shares forfeited; which forfeiture having been afterwards and according to the provisions of the last mentioned Act confirmed at a general meeting of the Company, and the shares so forfeited directed to be sold for the purposes in the last mentioned Act declared, and according to the provisions thereof, the shares so forfeited were afterwards sold by defendants, to wit by the said directors, by public auction: and plaintiff had thereby been deprived of his right to compel defendants to make such entry and indorsement as aforesaid, and to deliver to plaintiff such certificate, and had also been deprived of the shares and all benefit thereof, and all the dividends and other profits, which he might have derived therefrom, and also of the benefit of selling shares at an increased premium, the shares having, since the committing &c., risen in value.

2nd count, stating that plaintiff, at the time of the committing &c., was the lawful holder, and well entitled to, 300 shares in the undertaking of defendants; that defendants, without lawful cause, and in pretended exercise of the powers confirmed by the Company's Clauses Consolidation Act, 1845, wrongfully declared the shares forfeited, and afterwards confirmed such forfeiture, and afterwards sold the shares: whereby plaintiff had been deprived of the said shares and the benefit thereof, &c. (as in 1st count).

Held, on special demurrer :

That both counts disclosed a good

cause of action, inasmuch as they shewed a wrongful act of omission by defendants in neglecting to register, and also wrongful acts of commission by them in declaring and confirming the forfeiture, and selling the shares; and that such acts were not simply inoperative, but that the declaration disclosed an actual loss to the plaintiff, resulting from those acts.

Held, also, that it was not necessary for plaintiff expressly to aver that a reasonable time for registering the shares had elapsed. Catchpole v. Ambergate &c. Railway Company, 111. reasonable time, 111.

2. Pleading Ante, 1.

1. Obligation on Railway Company to complete line.

Per Lord Campbell C. J., and Crompton J.

When a Railway Company have obtained an act of Parliament, reciting that the formation of a railway from A. to D. will be beneficial to the public and that the Company are willing to execute it, and giving them compulsory powers upon landholders for that purpose, and the Company, in exercise of the powers, have taken lands and thereupon made part of their line, they are bound by law to complete such line, not only to the extent to which they have taken lands, but to the farthest point. Although the statute enacts only that it "shall be lawful" for them to make the railway.

And although the uncompleted por tion, from B. to C., is a line substituted by a later statute for the line marked out between the same points by the original act.

Mandamus lies to compel the entire completion, at the instance of a landholder whose land has been required

or is prejudiced by the non-completion.

And, if, by the expiration of powers, it has become impossible to finish the line up to the original terminus, a mandamus lies nevertheless to complete it up to the point at which the practicability ceased.

It is not a good return, that the line of which the completion is demanded has become superfluous, or from the circumstances of the district would be inconvenient, or would not remunerate the Company:

Nor that the funds which can in reasonable probability come to the possession of or be disposable by the Company will fall short by 100,0007. of the sum required to make the railway authorized by their Act, and which the writ commands them to make.

Semble, however, that, if there appeared an entire failure of funds from unforeseen casualties, and without imprudence or bad faith in the Company, the Court, in its discretion, would refuse a mandamus.

And that absolute want of funds, or of means to obtain them, might be returned to the writ.

Held by Erle J.: That a statute using permissive words as above does not of itself oblige the Company to complete their line.

And that, if, under such a statute, they have exercised a compulsory power of taking lands, they are not therefore obliged to complete the line any farther than such power has been exercised. Regina v. York and North Midland Railway Company, 178.

See S. C. in error. Post, 2.

2. Statute enabling not obligatory.

An Act for making a railway recited that the formation of the railway would be beneficial to the public, and that the Company were willing to execute it and the power of compulsory taking lands, with the then ordinary powers, were 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. York and North Midland Railway Company v. The Queen, 858.

3. The obligation begins when the act receives the Royal assent.

Per Lord Campbell C. J., Coleridge and Crompton Js.; Erle J. dissentiente:

A Company having obtained an act of Parliament for making a railway, on representation that it will be for the public benefit, with compulsory powers for taking lands along the proposed line, is bound, from the time when such act receives the Royal assent, to execute the work.

The Royal assent makes the Act binding as a contract by the Company with the public and with the landowners, whether the clauses under which the railway is to be made be in form imperative or permissive.

And the Court will enforce the performance by mandamus at the instance of one of the landowners:

Although the powers conferred upon the Company are temporary: And

Although the Company have taken no step, by issuing shares or otherwise, to carry the act into execution.

A mandamus, issued as above stated, called upon the Company immediately after receipt of the writ to do and take all necessary acts and steps, both as to the purchase of lands and otherwise, for making and completing, and to make and complete, the railway. The Company's act, referred to by the writ, estimated the expense of the works at a stated sum, and enacted that it should be lawful for them to raise a capital to that amount by creation of shares, and by mortgage. It did not appear by the mandamus that this had been done.