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Analytical Digest of Cases: Railway Cases.

COMPENSATION.

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mittee, to hold him out to the world as per- | Bracebridge, ib.; Dawson v. Hay, ib.; Wilson sonally responsible for the reasonable and v. Holden, ib. necessary expenses incurred in forming such a company, and on its behalf; and, then, whether the credit was given on the faith of his being so personally responsible.

A committee-man, by merely allowing his name to appear in that character in the ordinary form of prospectus issued by railway companies, incurs no liability to a tradesman who supplies goods to the company; but the consent of a person to his name so appearing may be a fact of importance on a question of such liability as showing that he took an interest in the proposed concern, whether merely as a patron and well-wisher, or as co-operating in the measures preparatory to its formation. It becomes, therefore, material to know what the committee was doing when he joined it, and whether he knew what it was doing, and concurred therein. If advertising, printing, and stationery are necessary to the working of the committee, and no fund has been raised to pay for such necessaries, the tradesman may justly suppose that all who act on the committee have authorised him to supply them on their credit, although the individual committee-man has not specifically given such authority, and though the tradesman may know nothing more of the committee-men than that they are probably men of character and substance. The absence of the committee-man's intention to pledge his credit is immaterial, if he have given the authority beforehand.

If, however, the tradesman looked solely to the deposits on shares as the funds from which payment was to be made to him, he has no cause of action against the committee-man.

As the liability of the committee-man arises, not from his filling that character, but from his authorising the orders for goods or services, his admission of general liability may be evidence of his having authorised such orders before his name appeared on the committee.

The jury are to consider whether such an admission was made because the actual liability in law was questionable, and for the purpose of preventing litigation, or whether the admission is referable to his conscientious conviction that his acts have made him personally liable. In the latter case they may infer his general liability.

Where a party has incurred and paid costs in bringing actions against committee-men to recover the amount of his claim, at the request of another committee-man, he may recover such costs from the committee-man at whose instance he sued, under the common count for money paid.

Where it appeared that, on the trial of an action against a committee-man of a projected railway company, one of the jury was also a member of the committee, and had been sued in respect of the claim then in question, the Court granted a new trial, on payment of

costs.

Bailey v. Macaulay, 13 Q. B. 815; Same v. Pearson, ib.; Same v. Haines, ib.; Same v.

For injury to land. — Ferry. — Inquisition, where to be taken.—A compensation jury, of owner, under Stat. 8 & 9 Vict. c. 20, s. 6, in the city of L., awarded compensation to a landrespect of the works of a railway company, by which he alleged that his land was injuriously affected.

The land was divided from the railway works by a river. The land was in the city; the works were not. The mode in which the works injuriously affected the land was, that they obstructed the access to a ferry over the river and appurtenant to the land in question: Held,

sition was rightly take there.
That, as the land lay in the city, the inqui-

That the ferry might pass with the land, under a conveyance of the land with "all profits and commodities belonging to the same;" and that, where, as far as living memory went, the land and ferry had always been enjoyed by the same person, and there was no evidence to show that they ever had been the subjects of separate conveyances, a compensation jury were justified in concluding that the ferry did pass with the land under the above words. At all events, that there was no such want of jurisdiction as to call for a certiorari or prohibition. Regina v. Great Northern Railway Company, 14 Q. B. 25.

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Cases cited in the judgment: Sutton v. Clarke, 6 Taunt. 29; Peter v. Kendal, 6 B. & C. 703. COMPANIES' CLAUSES CONSOLIDATION. 1. Mandamus to take off company's seal from register of shareholders.-The Court will not grant a mandamus commanding a railway company to take the seal off the register of shareholders, on a suggestion that it was affixed without authority, and contrary to the provisions of Stat. 8 & 9 Vict. c. 16 (the Companies Clauses Consolidation Act, 1845), ss. 9, 66, 75, 90. Exparte Nash, 15 Q. B. 92.

2. Action for calls.-Executor. -The form of declaration given by the 26th section of the 8 & 9 Vict. c. 16, is not applicable in an action for calls against an executor, where the calls were made in the lifetime of the testator. Birkenhead, Lancashire, and Cheshire Junction Railway Company v. Cotesworth, 5 Exch. R. 226.

3. Transferee of bond.-The transferee of a bond, transferred to him under the provisions of the Companies Clauses Consolidation Act (8 & 9 Vict. c. 16), is the party in whose name an action upon the bond must be brought. Vertue v. East Anglian Railways Company, 5 Exch. R. 280.

4. Line part in England and part in Scotland.-Service of writ of summons on secretary. By the Act incorporating the Caledonian Railway Company, six miles of which are in England, and the rest in Scotland, the English Companies Clauses Consolidation Act (8 & 9 Vict. c. 16), is incorporated, so far as is neces

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Analytical Digest of Cases: Railway Cases.

sary for carrying into effect the English portion tem, to the ordinary locomotive principle. The

of the line. The company's principal office was in Edinburgh, and their only office in England was at Carlisle, which was used only for receiving passengers and goods.

Held, that service of a writ of summons in an action of debt, on the secretary of the company while attending a meeting in London, was good. Wilson v. Caledonian Railway Company, 1 L. M. & P. 731.

CONSOLIDATION OF CLAUSES.

Exhibition of plans and sections, how far obligatory.-A railway company, before applying for a Deviation Act, deposited with the clerk of the peace for the county, plans and sections of the proposed line, and cross sections showing the manner in which roads were to be carried over the line. On one of those cross sections (No. 3), were delineated the manner in which it was proposed to carry a road at J. over the line by a bridge, and the proposed inclination of the altered line of road.

The Deviation Act, when obtained, incorporated the Railway Clauses Consolidation Act, 1845, and enacted (sect. 9), that it should be lawful to the company to construct the bridges for carrying the railway thereby authorised over any roads, or for carrying any roads over the said railway, of the heights and spans and in the manner shown on the sections deposited The company made the line, and at J. deviated two feet vertically from the level marked on the plans. They carried the road over the line on a bridge of the proposed height and span, but with a different inclination of the altered road. A mandamus having issued, commanding the company to make the bridge and carry the road over it in conformity with cross section, No 3, and at the rates of inclination delineated thereon as the rates of inclination of the road when altered: Held, on demurrer to a plea to the return,

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Construction. Act of Parliament. - A declaration in case charged the defendants, in the first count, with digging trenches across a lane over which the plaintiff had a right of way; in the second, with severing pipes which conveyed water to the plaintiff's messuage; and in the third, with stopping a drain for carrying away the foul water from the premises.

Plea, that, by a certain Act of Parliament, the defendants were authorised to construct a certain railway; that they had agreed with the plaintiff for the purchase of a portion of the land of the plaintiff near to the messuage; that the making of the railway, and carrying the same near to the plaintiff's messuage, being likely to occasion injury and inconvenience to the plaintiff, it was agreed that the defendants should pay to the plaintiff, for and in respect of the purchase of the said land, such a sum as should be sufficient to compensate her, not only for the value of such land, but also for all such injury and inconvenience as should necessarily arise from, or be incidental to, the making of the railway, and carrying the same near to the said messuage of the plaintiff; that, in pursuance of such agreement, and before the committing of the alleged grievances, by a deed between the plaintiff and certain other persons having an interest in the said land, the plaintiff and those other persons, in consideration of 5751., &c., conveyed the land to the defendants for the purpose of making the railway; that it was declared by the deed, that the 5751. so paid should be, and then was, accepted and taken by the plaintiff and other persons, for the purchase of the land, and by way of full compensation for all damage, loss, or inconvenience which could or might be sustained by them, or any of them, by severance, or otherwise by reason of the exercise of any the powers of the Act, the said 5751. being the sum so theretofore agreed to be paid as aforesaid to compensate the plaintiff, not only for the price and value of the land, but also for all such injury and inconvenience as should necessarily arise from, or be incidental to, the making of the railway, and carrying the same near to the plaintiff's messuage. The plea then went on to aver, that the grievances comContract not under seal.-Work done in pur-venience necessarily arising from and inciplained of were part of the injury and inconsuance of objects of company.-A railway com- dental to the making of the railway, and carpany, duly incorporated by Act of Parliament rying the same near to the plaintiff's messuage, (6 & 7 Wm. 4, c. cxxiii.), entered into an and were part of the damage, loss, and inconagreement, not under their seal, with a convenience sustained by the plaintiff by reason tractor that he should execute certain works of the exercise of the powers of the Act, and upon their railway, for the purpose of chang-intended to be compensated by and included ing the system of locomotion which they then in the said compensation money so paid as employed, the rope and stationary engine sys-aforesaid.

1. That the exhibition of the plans and sections imposed no obligation on the company, except in so far as the plans, &c., were incorporated in the Act. 2. That nothing in the Railway Clauses Consolidation Act, 1845, rendered the cross sections obligatory on the company. 3. That, if sect. 9 in the special act was obligatory (which, semble, it was so far as regarded the height and spans of the bridges), the obligation did not extend to the rates of inclination of the altered road, and that the mandatory part of the writ going in this respect beyond the obligation imposed by law, the writ was bad altogether. Regina v. Caledonian Railway Company, 16 Q. B. 19.

CORPORATION.

Analytical Digest of Cases: Railway Cases.

The plaintiff, in her replication, craved oyer of the deed, and demurred generally.

The deed, as set out on oyer, recited that the plaintiff and others had agreed to sell the land in question, and the defendants to purchase the same for the purposes of their railway, for the residue of a certain term therein; and that the plaintiff and the others had agreed to accept and take, and the defendants had agreed to pay 5751. for the said land, &c., "by way of full compensation for all damages, loss, or inconvenience whatsoever which could or might be sustained by any person or persons (except the reversioners), by severance, or otherwise by reason of the exercise of any of the powers of the said Act upon the said lands, &c., so agreed to be purchased as aforesaid." It then proceeded to state that the plaintiff and others, in consideration of 5751., conveyed all their interest in the said portion of the said land to the defendants:

Held, that the plea, as a plea of compensation, was bad in substance, inasmuch as the deed did not show that the 5751. was paid and received as compensation for the grievances complained of in the declaration :

Held, also, that the plea was not so framed as to show that the acts complained of were done under the authority of the Act of Parliament. Pilgrim v. Southampton and Dorchester Railway Company, 7 C. B. 205.

EXECUTION.

385

charge being for the use of the railway, carriages, and locomotive power only, the company will not be responsible for any alleged defects in their carriages or trucks, unless complaint be made at the time of booking, or before the same leave the station; nor for any damages, however caused, to horses, cattle, or live stock of any description, travelling upon their railway, or in their vehicles:"

Held, that, giving to the words of the contract their most limited meaning, they must apply to all risks, of whatever kind, and however arising, to be encountered in the course of the journey; and, therefore, that the company were not responsible for injury done to a horse from the firing of a wheel, in consequence of the neglect of the servants of the company to grease it. Austin v. Manchester, Sheffield, and Lincolnshire Railway Company, 10 C. B. 454.

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Of registered shareholder. Effect of.Where nothing but the simple fact of infancy is pleaded to an action for railway calls against purchaser who has been registered and thereby become a shareholder in a permanent character, the interest continuing to be vested in the infant, and the subsequent obligation to pay, such plea is insufficient.

On judgment recovered.—Sci. fa.—Due diliTherefore, where, to a declaration for railgence. Whether execution upon a judgment way calls, the defendant pleaded, that, at the recovered against a railway company governed time when he first became the holder of the by the provisions of the Companies Clauses shares, and at the time of his making the conConsolidation Act, should issue against a tracts by force of which the debts, causes of shareholder, depends, not only upon the plain-action, and liabilities in the declaration mentiff's failure to find sufficient property and tioned, accrued to the plaintiffs and were ineffects of the company to satisfy his judgment, but also upon his having used due diligence to find such property and effects.

his making and entering into the contracts by curred by the defendant, and at the time of force of which the plaintiffs' claim to be enWhether he has used due diligence, is a titled by law to make the call upon the defendpreliminary matter, to be decided by the Court ant, as in the declaration alleged, the defendupon motion for leave to issue such execution. ant was an infant within the age of 21 years; Where, however, a sci. fu. issues against a to which the plaintiffs replied, that the defendshareholder upon a judgment recovered against ant, at the time when he first became the the company, such due diligence should be holder of the shares, and at the time of his stated on the writ, and may be traversed and making the contracts in the plea mentioned, tried by the jury. Devereux v. Kilkenny and was of the full age of 21 years; upon which Great Southern and Western Railway Com-issue was joined, and a verdict entered for the pany, 1 L. M. & P. 788. defendant: Held, that the plaintiffs were entitled to judgment non obstante veredicto. Birkenhead, Lancashire, and Cheshire Junction Railway Company v. Pilcher, 5 Exch. R. 121. And see Calls, 4.

Case cited in the judgment: Bank of England v. Johnson, 3 Excb. R. 598; 6 D. & L. 458.

HORSES AND LIVE STOCK.

Special contract for the conveyance.-Horses were delivered to a railway company, to be carried by them from A. to B., for hire, subject to a note or ticket containing the following notice:"This ticket is issued subject to the owner's undertaking to bear all the risk of injury by conveyance and other contingencies; and the owner is required to see to the efficiency of the carriage before he allows his horses or live stock to be placed therein; the

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Analytical Digest of Cases: Railway Cases.

the whole be taken; and the promoters, on his refusal to sell part, may abandon the purchase. Regina v. London and South Western Railway Company, 12 Q. B. 775.

2. Assessment of compensation.-Warrant to summon a jury, issued without notice to landowner.- In debt, under "The Lands' Clauses' Consolidation Act, 1845" (8 & 9 Vict. c. 18), for the amount of compensation claimed by the plaintiff according to s. 68, for his lands actually taken by defendant, a railway company, the declaration alleged that plaintiff gave defendants notice in writing, of his claim, which exceeded 501., and of his desire to have compensation assessed by a jury; that 21 days elapsed, and that defendants did not give plaintiff notice of their intention to issue a warrant, nor did they issue a warrant, to summon a jury to assess compensation. Plea, that they did issue a warrant within 21 days. On demurrer, stating as ground that the plea, though pleaded to the whole count, left part of the breach unanswered.

Held, by Lord Campbell, C.J., Patteson and Erle, JJ., that no notice was required by the statute, and that the plea was good. Coleridge, J., dissentiente. Railstone v. York, Newcastle, and Berwick Railway Company, 15 Q.B. 404. 3. Award to be taken up by promoters.Umpire's lien for fees.-Mandamus. -Under the Lands' Clauses' Consolidation Act, 8 & 9 Vict. c. 18, if a difference between a landowner and promoters of an undertaking has been referred to arbitration, and an award made, the Court will, under sect. 35, compel the promoters by mandamus, at the landowner's instance, to take up the award.

And the promoters must, for that purpose, pay the fees due on the award; the arbitrators or umpire having a lien on the award for such fees, which the promoters are bound to satisfy, except so far as the obligation may be limited by sect. 34. Regina v. South Devon Railway Company, 15 Q.B. 1043.

4.

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Costs of inquiry before a jury. A party, whose land has been " damaged or injuriously affected" by the execution of the works of a railway company, and who, in a proceeding initiated by himself under the 68th section of the Lands' Clauses' Consolidation Act, 8 & 9 Vict. c. 18, recovers by the verdict of a jury a larger sum than that tendered by the company, is entitled to the costs of the inquiry before the sheriff, the earlier provisions of the Statute as to the manner of assessing compensation, being virtually incorporated in that section.-Richardson v. SouthEastern Railway Company, 11 C.B. 154.

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MANDAMUS.

1. To complete new lines of road.-Excuse by want of funds and expiration of compulsory powers.-Laches in prosecutor.-An Act (6 & 7 Wm. 4, c. viii.), for repairing and amending a turnpike road, recited that, the trustees under former Acts had amended, &c., and had expended and borrowed money for the pur pose, but that the road could not be sufficiently amended and repaired, nor the debt paid, unless further powers were granted; it recited also that the public would be benefited if powers were given to make certain new diversions from the former road; it then (after repealing the prior Act) enacted that this statute should, for an enlarged term, be put in execution for repairing and amending the said road, and for making and maintaining the new lines; authorised the trustees to continue the existing toll-gates, and to take certain increased tolls, and required them to apply the tolls, and the money already in their hands in amending the said roads, paying off debt, and otherwise putting this Act in execution as to them should seem expedient. It then authorised, empowered, and required them to form the new lines, and for that purpose to enter upon and take lands and buildings, making compensation, &c.; but the compulsory power in this respect was to cease in five years from the passing of the Act. trustees entered into receipt of the increased tolls, but did not make the new lines. Seven years after the compulsory powers had expired, a person moved for a mandamus to the trus tees to make the new lines, stating on affidavit that he was an inhabitant of the neighbourhood, and that the making of them would be an advantage to him and other neighbours, and to the public; but he did not explain his delay in making the application. Affidavits in answer stated that, soon after the statute now in question, another Act passed for making a railway, which had accordingly been formed, running parallel to the turnpike-road, greatly injuring the receipt by tolls, occupying part of the space intended for the new lines, making it impracticable to complete them except at a very great expense, and rendering the construction of them unimportant. They also ascribed to the prosecutor a merely personal motive for making his application.

5. Construction.- Lands which have been taken."-The words, "lands which shall have been taken for or injuriously affected by the execution of the works," in the 68th section of the Lands' Clauses' Consolidation Act, 8 Vict. c. 18, include such lands only as are actually taken or actually affected by the works. Burkinshaw v. Birmingham and Oxford Junction Railway Company, 5 Exch. R. 475. And see Mandamus, 2.

The

Held, that laying out of consideration the affidavits in answer (which might have been controverted on a return), the Court, in its discretion, ought to refuse a mandamus. Regina v. Halifax Road Trustees, 12 Q.B. 448. 2. To assess compensation after expiration of compulsory powers.-Lands' Clauses' Consolidation Act.-Stat. 8 & 9 Vict. 18, s. 123 (Lands' Clauses' Consolidation Act, 1845) provides that the powers of promoters of an undertaking, within that Act, and any special Act there referred to, "for the compulsory purchase or taking of lands for the purposes of the special Act," shall not be exercised after the expiration of three years from the passing of the special Act.

Analytical Digest of Cases: Railway Cases.

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Held, by the Court of Queen's Bench, that a jury to assess the proper amount, under the this clause does not prevent such promoters provisions of the Act. The company took no from summoning a jury to assess compensa- further step in the matter: Held, that, under tion for land at the instance of the landowner, these circumstances, A. could not maintain an when the promoters have, within the three action to recover from them the 4,500l. Buryears (by virtue of their special Act), given no- kinshaw v. Birmingham and Oxford Junction tice to the landowner of their requiring such Railway Company, 5 Exch. R. 475. land, but have neglected to summon a jury till the three years had expired. And that the promoters may, at the landowner's instance, be compelled by mandamus to summon such jury.

Judgment affirmed by the Exchequer Chamber. Regina v. Birmingham and Oxford Junction Railway Company, 15 Q. B. 634.

MANAGING COMMITTEE.

Fraudulent misrepresentation by agent.-Assumpsit against C., H., and Y., for money had and received. The plaintiff's case was that the three defendants were members of the committee of management of a registered railway company, to which company he had paid the money in question as a deposit on shares; and that, before he so paid, and while defendants were committee-men, a false representation as to the state of the company had been publicly advertised in the name of the committee. The only evidence of the receipt of the money was the payment to bankers, appointed by the committee, who gave a receipt on behalf of five trustees, of whom H. was one, but not either C. or Y.

Held, that the action did not lie. Semble, that the defendants might have been liable for the fraud in another form of action, if it had appeared that the false representation had been wilfully made by a party authorised to act generally in the transaction for the defendants, and the jury had found the fraud in fact; although there was no direct evidence that the fraud had induced the plaintiff to pay the money. Q. B. 856.

Watson v. Earl Charlemont, 12

Cases cited in the judgment: Walstab v. Spot-
liswoode, 15 M. and W. 501; Wontner v.
Shairp, 4 C. B. 404, 420.
See Committee.

NOTICE TO OWNER.

PROVISIONAL COMMITTEE-MAN.

1. Individual liability. Admission made under mistake.-A member of a provisional committee, who first takes part in the affairs of a company, so as to make himself individually liable on a given day, does not thereby make himself liable for services performed for the company after that day, where the order was given before it.

An admission by him of his liability is not conclusive against him; but the jury, in estimating its weight, are to take into consideration the circumstances under which it was made.

As, that, when it was made, unfounded opinions prevailed respecting the extent of a provisional committee-man's liability. Newton v. Belcher, 12 Q. B. 921.

2. Resolution.-Evidence.-In an action by the plaintiffs for work done as engineers for a railway company, of which the defendant was a member of the provisional committee, the plaintiffs gave in evidence certain resolutions of the committee, made at meetings at which the defendant was present. The defendant offered in evidence a resolution to the effect that engineers should be employed, but that the members of the provisional committee were not to incur any personal responsibility; but at the meeting the plaintiffs were not present: Held, that the resolution was receivable in evidence. Rennie v. Clarke, 5 Exch. R. 292.

PURCHASE.

Allegation of breach.-Construction of Act. -By an Act for making a railway, the comof St. M., in Liverpool, and certain grounds pany were authorised to purchase the church and buildings attached thereto, not forming part of the site of the church, but that nothing in the Act contained should enable the company to take down or interfere with the said church or ground, without the consent in writTo take land.-Right of owner to recover ing of the diocesan first obtained, upon the value where lands not taken.-A., the proprietor previous payment by the company to him and of certain houses, which were liable to be taken the Archbishop of York, for the time being, of for making a railway, under the provisions of such sum as should be agreed upon between the local act of the promoters of the under- the said archbishop and bishop and the comtaking, received a notice under the 18th sect. pany,-in ascertaining which sum, regard was of the 8 Vict.c.18, from the promoters, that the to be had to the cost of a site for a new church, property would be required by them for and of erecting and completing the same, and the railway, and the notice demanded the par- also to the value of such part of the premises as ticulars of 4.'s interest therein, and stated did not form the site of the church; and that, their willingness to purchase it. A. duly fur- upon payment of the sum so to be agreed upon, nished these particulars, and a sum of 4,500l. the then present church, and the ground atset upon the property by him, which tached thereto, not forming the site of the amount he claimed from the promoters as a church, and the freehold and inheritance compensation for taking the property, and he thereof, should vest in the company; and that required payment thereof, or that a warrant the sum so paid to the archbishop and bishop should be issued by the company to summon should be employed by them, among other

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