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Analytical Digest of Cases : Railway Cases.

385 The plaintiff, in her replication, craved oyer charge being for the use of the railway, carof the deed, and demurred generally.

riages, and locomotive power only, the comThe deed, as set out on oyer, recited that pany will not be responsible for any alleged the plaintiff and others had agreed to sell the defects in their carriages or trucks, unless land in question, and the defendants to pur-complaint be made at the time of booking, or chase the same for the purposes of their rail. before the same leave the station; nor for any way, for the residue of a certain term therein; damages, however caused, to horses, cattle, or and that the plaintiff and the others had live stock of any description, travelling upon agreed to accept and take, and the defendants their railway, or in their vehicles :" had agreed to pay 5751. for the said land, &c., Held, that, giving to the words of the con“by way of full compensation for all da- tract their most limited meaning, they must mages, loss, or inconvenience whatsoever apply to all risks, of whatever kind, and howwhich could or might be sustained by any ever arising, to be encountered in the course person or persons (except the reversioners), of the journey; and, therefore, that the comby severance, or otherwise by reason of the pany were not responsible for injury done to a exercise of any of the powers of the said Act horse from the firing of a wheel, in conseupon the said lands, &c., so agreed to be pur- quence of the neglect of the servants of the chased as aforesaid," It then proceeded to company to grease it. Austin v. Manchester, state that the plaintiff and others, in consi- Sheffield, and Lincolnshire Railway Company, deration of 575l., conveyed all their interest in 10 C. B. 454. the said portion of the said land to the de Cases cited in the judgment: Southcote's case, fendants :

4 Co. Rep., 84, n.; Morse v. Slue, 1 Ventr. Held, that the plea, as a plea of compensa 258; Hinton v. Dibber, 2 Q. B. 646; 2 Gale tion, was bad in substance, inasmuch as the & D. 36; Owen v. Burnett, 2 C. & M. 353. deed did not show that the 5751. was paid and

INFANCY. received as compensation for the grievances

of registered shareholder. Effect of. — complained of in the declaration :

Where nothing but the simple fact of infancy Held, also, that the plea was not so framedlisn

| is pleaded to an action for railway calls against as to show that the acts complained of were

a purchaser who has been registered and theredone under the authority of the Act of Parlia

by become a shareholder in a permanent characmen

ter ter, the interest continuing to be vested in the Railway Company, 7 C. B. 205.

infant, and the subsequent obligation to pay, EXECUTION,

such plea is insufficient. On judgment recovered. --Sci. fq.-Due dili-! Therefore, where, to a declaration for railgence.—Whether execution upon a judgment

doment way calls, the defendant pleaded, that, at the recovered against a railway company governed

d 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

ansin action, and liabilities in the declaration mentiff's failure to find sufficient property and

pand tioned, accrued to the plaintiffs and were ineffects of the company to satisfy his judgment,

ment curred by the defendant, and at the time of

(3 his making and entering into the contracts by but also upon his having used due diligence to find such property and effects.

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 defend

tea by la preliminary matter, to be decided bỹ 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 al 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 shouid be holder of the shares, and at the time of his stated on the writ, and may be traversed and maki

ced 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 en

titled to judgment non obstante veredicto. Case cited in the judgment: Bank of England Birkenhead, Lancashire, and Cheshire Junction v. Jobason, 3 Excb. R. 598; 6 D. & L. 458. Railway Company v. Pilcher, 5 Exch, R. 121. HORSES AND LIVE STOCK.

And see Calls, 4. Special contract for the conveyance.-Horses LANDS' CLAUSES' CONSOLIDATION. were delivered to a railway company, to be 1. Compulsory sale. Refusal of owner to carried by them from A. to B., for hire, subject sell less than the whole land. -Under the Lands' to a note or ticket containing the following Clauses' Consolidation Act, 8 & 9 Vict. c. 18, notice :-“This ticket is issued subject to the if the promoters of an undertaking demand a owner's undertaking to bear all the risk of compulsory sale of premises by authority of injury by conveyance and other contingen- the Statute, the owner, by sect. 92, may refuse cies; and the owner is required to see to the to sell less than the whole ; but, if they have efficiency of the carriage belore he allows his given notice of requiring a part, the owner horses or live stock to be placed therein ; the cannot, by reason of such notice, require that


Analytical Digest of Cases : Railway Cases.

the whole be taken ; and the promoters, on

MANDAMUS. his refusal to sell part, may abandon the pur- 1. To complete new lines of road.Excuse chase. Regina v. London and South Western by want of funds and expiration of compulsory Railway Company, 12 Q. B. 775.

powers.-Laches in prosecutor.–An Act (6 & 2. Assessment of compensation.- Warrant to 7 Wm. 4, c. viii.), for repairing and amending summon a jury, issued without notice to land- a turnpike road, recited that, the trustees owner.- In debt, under “ The Lands' Clauses' under former Acts had amended, &c., and had Consolidation Act, 1843" (8 & 9 Vict. c. 18), expended and borrowed money for the pur. for the amount of compensation claimed by the pose, but that the road could not be suffiplaintiff according to s. 68, for his lands ac- ciently amended and repaired, nor the debt tually taken by defendant, a railway company, paid, unless further powers were granted; it the declaration alleged that plaintiff gave de- recited also that the public would be benefited fendants notice in writing, of his claim, which if powers were given to make certain new diexceeded 50l., and of his desire to have com- versions from the former road; it then (after pensation assessed by a jury; that 21 days repealing the prior Act) enacted that this elapsed, and that defendants did not give statute should, for an enlarged term, be put in plaintiff notice of their intention to issue a execution for repairing and amending the said warrant, nor did they issue a warrant, to sum-road, and for making and maintaining the new mon a jury to assess compensation. Plea, lines ; authorised the trustees to continue the that they did issue a warrant within 21 days. existing toll-gates, and to take certain inOn demurrer, stating as ground that the plea, creased tolls, and required them to apply the though pleaded to the whole count, left part of tolls, and the money already in their hands the breach unanswered.

| in amending the said roads, paying off debt, Held, by Lord Campbell, C.J., Patteson and and otherwise putting this Act in execution as Erle, JJ., that no notice was required by the to them should seem expedient. It then austatute, and that the plea was good. Coleridge, thorised, empowered, and required them to J., dissentiente. Railstone v. York, Newcastle, form the new lines, and for that purpose to and Berwick Railway Company, 15 Q.B. 404. enter upon and take lands and buildings,

3. Award to be taken up by promoters. making compensation, &c.; but the compulUmpire's lien for fees.- Mandamus. -Under sory power in this respect was to cease in five the Lands' Clauses' Consolidation Act, 8 & 9 years from the passing of the Act. The Vict. c. 18, if a difference between a land- trustees entered into receipt of the increased owner and promoters of an undertaking has tolls, but did not make the new lines. Seven been referred to arbitration, and an award years after the compulsory powers had expired, made, the Court will, under sect. 35, compel a person moved for a mandamus to the trusthe promoters by mandamus, at the land- tees to make the new lines, stating on affidavit owner's instance, to take up the award. that he was an inhabitant of the neighbour

And the promoters must, for that purpose, hood, and that the making of them would pay the fees due on the award ; the arbitrators be an advantage to him and other neighbours, or umpire having a lien on the award for such and to the public ; but he did not explain his fees, which the promoters are bound to satisfy, delay in making the application. Affidavits in except so far as the obligation may be limited answer stated that, soon after the statute now by sect. 34. Regina v. South Devon Railway in question, another Act passed for making a Company, 15 Q.B. 1043.

railway, which had accordingly been formed, 4. Costs of inquiry before a jury. - A running parallel to the turnpike-road, greatly party, whuse land has been “ damaged or injuring the receipt by tolls, occupying part of injuriously affected” by the execution of the the space intended for the new lines, making it works of a railway company, and who, in a impracticable to complete them except at a proceeding initiated by himself under the 68th very great expense, and rendering the consection of the Lands' Clauses' Consolidation struction of them unimportant. They also Act, 8 & 9 Vict. c. 18, recovers by the verdict ascribed to the prosecutor a merely personal of a jury a larger sum than that tendered by motive for making his application. the company, is entitled to the costs of the in- Held, that laying out of consideration the quiry before the sheriff, -- the earlier provi- affidavits in answer (which might have been sions of the Statute as to the manner of as- controverted on a return), the Court, in its sessing compensation, being virtually incorpo- discretion, ought to refuse a mandamus. rated in that section.-Richardson v. South- Regina v. Halifax Road Trustees, 12 Q.B. 448. Eastern Railway Company, 11 C.B. 154. 1 2. To assess compensation after expiration !

5. Construction.- Lands which have been compulsory powers. -Lands' Clauses' Consoli. taken.”—The words, “lands which shall have dation Act,-Stat. 8 & 9 Vict. 18, 8. 123 been taken for or injuriously affected by the (Lands' Clauses' Consolidation Act, 1845) execution of the works," in the 68th section of provides that the powers of promoters of the Lands' Clauses' Consolidation Act, 8 Vict. undertaking, within that Act, and any specia c. 18, include such lands only as are actually Act there referred to, “ for the compulsory taken or actually affected by the works. purchase or taking of lands for the purposes Burkinshaw v. Birmingham and O.xford Junc- the special Act,” shall not be exercised atte tion Railway Company, 5 Exch. R. 475. the expiration of three years from the passing And see Mandamus, 2.

of the special Act.

Analytical Digest of Cases : Railway Cases.

387 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 4,5001. Bur. years (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

PROVISIONAL COMMITTEE-MAN. promoters may, at the landowner's instance, 1. Individual liability. Admission made be compelled by mandamus to summon such under mistake.-A member of a provisional jury.

committee, who first takes part in the affairs of Judgment affirmed by the Exchequer Cham- a company, so as to make himself individually ber. Regina v. Birmingham and Oxford Junc- liable on a given day, does not thereby make tion Railway Company, 15 Q. B. 634. himself liable for services performed for the

company after that day, where the order was MANAGING COMMITTEE.

given before it. Fraudulent misrepresentation by agent.--As- An admission by him of his liability is not sumpsit against C., H., and Y., for money had conclusive against him; but the jury, in estiand received. The plaintiff's case was that matirg its weight, are to take into considerathe three defendants were members of the tion the circumstances under which it was committee of management of a registered rail- made. way company, to which company he had paid As, that, when it was made, unfounded opithe money in question as a deposit on shares ; nions prevailed respecting the extent of a proand that, before he so paid, and while defend- visional committee-man's liability. Newton v. ants were committee-men, a false representa- Belcher, 12 Q. B. 921. tion as to the state of the company had been 2. Resolution.- Evidence.--In an action by publicly advertised in the name of the commit- the plaintiffs for work done as engineers for a tee. The only evidence of the receipt of the railway company, of which the defendant was a money was the payment to bankers, appointed member of the provisional committee, the by the committee, who gave a receipt on behalf plaintiffs gave in evidence certain resolutions of five trustees, of whom H. was one, but not of the committee, made at meetings at which either C. or Y.

the defendant was present. The defendant Held, that the action did not lie.

offered in evidence a resolution to the effect Semble, that the defendants might have been that engineers should be employed, but that liable for the fraud in another form of action, the members of the provisional committee were if it had appeared that the false representation not to incur any personal responsibility; but had been wilfully made by a party autho- at the meeting the plaintiffs were not present : rised to act generally in the transaction for the Held, that the resolution was receivable in evidefendants, and the jury had found the fraud dence. Rennie v. Clarke, 5 Exch. R. 292, in fact; although there was no direct evidence

PURCHASE. that the fraud had induced the plaintiff to pay the money. Watson y. Earl Charlemont. 12 Allegation of breach.-Construction of Act. Q. B. 856.

-By an Act for making a railway, the com

pany were authorised to purchase the church Cases cited in the judgment: Walstab v. Spot- l of St. M., in Liverpool, and certain grounds liswoode, 15 M. and W. 501; Wontner v.

and buildings attached thereto, not forming Shairp, 4 C. B. 404, 420.

part of the site of the church, but that nothing See Committee.

in the Act contained should enable the comNOTICE TO OWNER.

pany to take down or interfere with the said

church or ground, without the consent in writTo take land.- Right of owner to recovering of the diocesan first obtained, upon the value where lands not taken.-A., the proprielor 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 Ai'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 4,5001. the then present church, and the ground atwas set 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 388

Analytical Digest of Cases : Railway Cases. purposes, in making payment to the person public company, under the 8 & 9 Vict. c. 16, entitled thereto of the value of the said ground s. 36, is by motion for a scire facias, and not and buildings, not forming part of the site of by a motion for a rule to show cause why exethe church.

cution should not issue against such shareThe archbishop and bishop, having agreed holder. Hitchins v. Kilkenny and Great with the company, offered the plaintiff, the in- Southern and Western Railway Company, In re cumbent of the church of St. M., and the Emery, 10 C. B. 160. person entitled to the ground and buildings

SHARES, SFURIOUS. not forming part of the site of the church,

Money paid in respect of failure of conside3001. as the value of his interest therein, upon

ration.- Broker and principal.-Sale of spurithe assumption, that, being consecrated ground, it was in his hands inapplicable to any secular

ous shares.- Stock Exchange rules. On the

10th March, 1847, A. employed B., a sharepurpose, and was therefore only worth that sum. The plaintiff thereupon brought an ac

| broker and member of the London Stock Ex

gat an ace change, to sell for him tion upon the case against them.

certain documents

which purported to be scrip or certificates, The declaration, after setting forth the provision of the Act above referred to, stated, that

each for 50 shares, in a projected railway com

pany. On the 27th B. sold these certificates the plaintiff was entitled to the value of the land and premises not forming the site of the

to C., and handed over the proceeds to A. church; that it was afterwards agreed between

The certificates being subsequently found to the company and the defendants, that the sum

be forged, B. was, on the 11th of May, called of 7,7321. 17s. should be paid by the company

upon and obliged to pay (pursuant to a reso

" to the defendants, as the sum upon the pay

lution of a committee of the Stock Exchange)

to C. a certain agreed value as for genuine cer. ment whereof the company were to be autho

ītificates of that company, which considerably rised to take possession of the said church and premises, and take down the church, with the

exceeded the price for which he had sold the consent of the diocesan ; that the said sum was

spurious certificates. paid to the defendants, and thereupon the pre

In an action by B. against d. to recover the mises became and were invested in the com

sum paid by him to C., the declaration conpany, and the bishop gave his consent accord

tained a special count averring a promise by

A. that the certificates were genuine, and a ingly; that the said sum was sufficient to pur

i count for money paid. Upon the latter count, chase a site, and complete the new intended church, and also to pay the value of so much

"muc | A. paid into Court the sum he had received on of the said ground and buildings as did not

the original sale, with interest. form the site of the church; and that the value

Held, that B. was not entitled to recover of the said ground and buildings was 2,0001.,

"upon the special count, there being no promise, which sum the defendants were requested to

express, or implied, that the certificates were pay the plaintiff, but which they refused to

genuine; and that, under the count for money pay, and had not paid, although a reasonable

paid B. was only entitled to recover the time for so doing had elapsed.

amount actually paid by him to A. At the trial, the Judge told the jury that the

Held, also, that the resolution of the com

mittee of the Stock Exchange, made after the plaintiff was not concluded as to the value of|.. the ground and buildings so vested in him,

transaction was completed, however it might

l, bind the members of that body, could not and not forming part of the site of the church, 1 by the determination of the archbishop and

's affect A. Westropp v. Solomon, C. B. 345. bishop under the Act; and he left the ques

WINDING-UP ACT. tion of value to them, telling them that they! 1. Construction.—Quære, whether the Jointwere not bound to estimate the value as Stock Companies Winding-up Act, 1848 (11 of land irrevocably appropriated to spiritual & 12 Vict. c. 45), applies to railway compauses :

nies; and whether the Joint-Stock Companies Held, that the jury were properly directed; Winding-up Act, 1849 (12 & 13 Vict. c. 108),

Held, also, that the declaration sufficiently is retrospective ? Mackenzie v. Sligo and disclosed the duty of the defendants under the Shannon Railway Company, 9 C. B. 250. statute, and that the breach was well alleged. 2. Contributory.-An action having been Hilcoat v. Archbishop of Canterbury, 10 C. B. brought against the defendant, a provisional 327.

committee-man of a certain railway company SCI. FA.

provisionally registered, for work done for and Issuing execution against shareholder.- Sem

on behalf of the company, and judgment havble, that the proper form of issuing execution ing been recovered against him, and a writ of under the 8 and 9 Vict. c. 16. s. 36. against ca. sa. issued thereon, an order absolute was the shareholder of a railway company, is by me

a bu made for winding up the affairs of the comsci. fa. Devereux v. Kilkenny and Great pany under the Winding-up Act, 11 & 12 Southern and Western Railway Company, UL. | Vict. c. 45, and an official manager was apM. & P. 788.

pointed. The Court stayed the proceedings

until after proof by the plaintiff of his debt SHAREHOLDER.

before the Master appointed by the said Act Execution against.—The proper course to Macgregor v. Keily, 4 Exch. R. 801. obtain execution against a shareholder of a

The Legal Observer,



ATTORNEYS CERTIFICATE DUTY. discretion in deferring this stage, so as to

afford the Cabinet an opportunity of consi

dering how the significant hint afforded by FALLACIES OF THE “TIMES.”

a majority of 52, in a House consisting of We were enabled in our last Number nearly 400 members, can be taken advanbriefly to advert to the gratifying fact, that tage of with the best grace and the least the House of Commons, for the sixth time, public inconvenience. in the fullest House which ever divided Without relying too much on the success upon the question, and by an increased already achieved, it may safely be asserted, majority, had decided in favour of the that the Bill has now been introduced claim of the Attorneys and Solicitors of under circumstances more promising and Great Britain and Ireland, to the remis. encouraging than existed on any previous sion of the Annual Certificate Duty. It occasion, since the Legislature has been was also intimated, that the motion for the appealed to for relief. Nevertheless, we second reading of Lord Robert Grosvenor's should mislead our readers by suggesting, Bill wo-uld be postponed until after the that the only difficulty remaining is, to perChancellor of the Exchequer made his fi- suade the Chancellor of the Exchequer to nancial statement, when, it may be hoped, relinquish 120,0001. of annual revenue. the Right Hon. Gentleman will consider it The opposition to the repeal of the Attorconsistent with his sense of duty to defer neys' Certificate Duty lies deeper. There to the clearly expressed sentiments of a are persons-not without authority in cermajority of the people's representatives, in tain quarters—who conceive that every atreference to a tax involving a comparatively tempt to exercise influence, and any-the inconsiderable portion of the public re- slightest – manifestation of independence venue, but pressing with great severity and by an attorney, ought to be resented as an injustice upon that branch of the Legal impertinence, if not indeed punished as a Profession which is exclusively subjected crime. This liberal class has found a conto its operation. The repeal of the Certifi- genial exponent of its prejudices amongst cate Duty has hitherto, fortunately and ju- the leading writers for the Times newspaper, diciously, as we conceive, been dissociated which, on the morning after the recent difrom all party considerations—the parlia- vision upon the introduction of the Bill, mentary majority advocating it embraces contained an article in which ill-concealed men of every political creed-still, it is due mortification and disappointment were comto those who, like Lord Robert Grosvenor, bined with a greater number of fallacies, give their general support to the Govern- and a bolder disregard of facts, than are ment, not to precipitate a Ministerial defeat often discovered in the columns of that when the object in view may be attained journal. The writer's moral perception is so without offending the amour propre of any overclouded on this occasion, that he seems member of the administration. Even if the to find it impossible to conceive a highforms of Parliament and the state of public minded member of the British Legislature business allowed—as they did not—of an heading a movement of this nature from no earlier day being fixed for the second read other impulsion than a sense of its justice. ing, we are satisfied the noble lord, the “ Lord Robert Grosvenor, we know not member for Middlesex, exercised a sound why,” says the Times), “except that every

VOL. XLV. No. 1,306.

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