Analytical Digest of Cases: Railway Cases. The plaintiff, in her replication, craved oyer of the deed, and demurred generally. 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:" 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., 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 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. company to grease it. Austin v. Manchester, Sheffield, and Lincolnshire Railway Company, 10 C. B. 454. a Cases cited in the judgment: Southcote's case, 4 Co. Rep., 84, n.; Morse v. Slue, 1 Ventr. 238; Hinton v. Dibber, 2 Q. B. 646; 2 Gale & D. 36; Owen v. Burnett, 2 C. & M. 353. INFANCY. 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. Therefore, where, to a declaration for railway calls, the defendant pleaded, that, at the time when he first became the holder of the shares, and at the time of his making the contracts by force of which the debts, causes of On judgment recovered.-Sci. fa.-Due diligence. Whether execution upon a judgment recovered against a railway company governed by the provisions of the Companies Clauses Consolidation Act, should issue against a shareholder, depends, not only upon the plain-action, and liabilities in the declaration mentiff's failure to find sufficient property and effects of the company to satisfy his judgment, but also upon his having used due diligence to find such property and effects. Whether he has used due diligence, is a preliminary matter, to be decided by the Court upon motion for leave to issue such execution. Where, however, a sci. fu. issues against a shareholder upon a judgment recovered against the company, such due diligence should be stated on the writ, and may be traversed and tried by the jury. Devereux v. Kilkenny and Great Southern and Western Railway Company, 1 L. M. & P. 788. 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 tioned, accrued to the plaintiffs and were inhis making and entering into the contracts by curred by the defendant, and at the time of force of which the plaintiffs' claim to be entitled by law to make the call upon the defendant, as in the declaration alleged, the defendant was an infant within the age of 21 years; to which the plaintiffs replied, that the defendant, at the time when he first became the holder of the shares, and at the time of his making the contracts in the plea mentioned, was of the full age of 21 years; upon which issue was joined, and a verdict entered for the 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. LANDS' CLAUSES' CONSOLIDATION. 1. Compulsory sale. — Refusal of owner to sell less than the whole land.-Under the Lands' Clauses' Consolidation Act, 8 & 9 Vict. c. 18, if the promoters of an undertaking demand a compulsory sale of premises by authority of the Statute, the owner, by sect. 92, may refuse to sell less than the whole; but, if they have given notice of requiring a part, the owner cannot, by reason of such notice, require that 386 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. MANDAMUS. 1. To complete new lines of road.-Excuse by want of funds and expiration of compulsory 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, 1845" (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 50%., 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. On demurrer, stating as ground that the plea, though pleaded to the whole count, left part of the breach unanswered. 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, 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. 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. 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. The 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, 4. Costs of inquiry before a jury. A running parallel to the turnpike-road, greatly party, whose land has been " damaged or injuring the receipt by tolls, occupying part of 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. -- 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 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. 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' Consoli dation 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. 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 4,500l. 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- 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 company were authorised to purchase the church of St. M., in Liverpool, and certain grounds 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 was 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 and buildings, not forming part of the site of the church. The archbishop and bishop, having agreed with the company, offered the plaintiff, the incumbent of the church of St. M., and the person entitled to the ground and buildings not forming part of the site of the church, 300l. as the value of his interest therein, upon the assumption, that, being consecrated ground, it was in his hands inapplicable to any secular purpose, and was therefore only worth that sum. The plaintiff thereupon brought an action upon the case against them. s. 36, is by motion for a scire facias, and not by a motion for a rule to show cause why execution should not issue against such shareholder. Hitchins v. Kilkenny and Great Southern and Western Railway Company, In re Emery, 10 C. B. 160. SHARES, SPURIOUS. ration.-Broker and principal.-Sale of spuriMoney paid in respect of failure of conside10th March, 1847, A. employed B., a shareous shares.-Stock Exchange rules. On the broker and member of the London Stock Exchange, to sell for him certain documents each for 50 shares, in a projected railway comwhich purported to be scrip or certificates, pany. On the 27th B. sold these certificates to C., and handed over the proceeds to A. be forged, B. was, on the 11th of May, called The certificates being subsequently found to lution of a committee of the Stock Exchange) upon and obliged to pay (pursuant to a reso The declaration, after setting forth the provision of the Act above referred to, stated, that the plaintiff was entitled to the value of the land and premises not forming the site of the church; that it was afterwards agreed between the company and the defendants, that the sum of 7,7321. 17s. should be paid by the company to the defendants, as the sum upon the payment whereof the company were to be autho-to C. a certain agreed value as for genuine certificates 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- sum paid by him to C., the declaration conIn an action by B. against A. to recover the mises became and were invested in the com- tained a special count averring a promise by pany, and the bishop gave his consent accord-4. that the certificates were genuine, and a ingly; that the said sum was sufficient to pur-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 4. 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 of the said ground and buildings was 2,000l., which sum the defendants were requested to pay the plaintiff, but which they refused to pay, and had not paid, although a reasonable time for so doing had elapsed. At the trial, the Judge told the jury that the plaintiff was not concluded as to the value of the ground and buildings so vested in him, and not forming part of the site of the church; by the determination of the archbishop and bishop under the Act; and he left the question of value to them, telling them that they were not bound to estimate the value as of land irrevocably appropriated to spiritual Held, that B. was not entitled to recover upon the special count, there being no promise, express, or implied, that the certificates were genuine; and that, under the count for money paid B. was only entitled to recover the amount actually paid by him to A. mittee of the Stock Exchange, made after the Held, also, that the resolution of the combind the members of that body, could not transaction was completed, however it might affect A. Westropp v. Solomon, & C. B. 345. WINDING-UP ACT. 1. Construction.-Quære, whether the JointStock Companies Winding-up Act, 1848 (11 & 12 Vict. c. 45), applies to railway companies; and whether the Joint-Stock Companies Winding-up Act, 1849 (12 & 13 Vict. c. 108), is retrospective? Mackenzie v. Sligo and Shannon Railway Company, 9 C. B. 250. 2. Contributory.—An action having been brought against the defendant, a provisional committee-man of a certain railway company provisionally registered, for work done for and on behalf of the company, and judgment having been recovered against him, and a writ of made for winding up the affairs of the comca. sa. issued thereon, an order absolute was pany under the Winding-up Act, 11 & 12 Vict. c. 45, and an official manager was appointed. The Court stayed the proceedings until after proof by the plaintiff of his debt before the Master appointed by the said Act Macgregor v. Keily, 4 Exch. R. 801. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, MARCH 19, 1853. ATTORNEYS' CERTIFICATE DUTY. discretion in deferring this stage, so as to afford the Cabinet an opportunity of considering how the significant hint afforded by a majority of 52, in a House consisting of nearly 400 members, can be taken advantage of with the best grace and the least public inconvenience. FALLACIES OF THE "TIMES." WE were enabled in our last Number briefly to advert to the gratifying fact, that the House of Commons, for the sixth time, 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 would 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 120,000l. 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. X |