The Express.
London, England, 1847-11-09 00:00:00

the asthority of the leglelature. Therefore, whatever the
patios might intend to do, the question must finally be do.
riled by parliament." Even if the Birmingham and Oxford
ha 1 power to sell their line to the Great Western, still they
had no power first to unite themselves to another rail-
way, and thee to all the amalgamated c,mpanies.
It could not be said that this was done in exe-
cution of the powers of sale, for the very terms
of the contract were, that the amalgamation was to be
first made, without which the sale could not take place.
Even the price which was to be given was fixed with re-
femme to this amalgamation, because it was stated that the
Great Western would give a higher price, on account of the
greater value gained by the amalgamation. The Great
Western might fairly say, when the time for completing the
contract should arrive, that they would not give so high a
price unless the amalgamation were first effected ,• if se, the
contract would net be binding upon them, and surely it
would not be binding in such a came upon the other parties.
The. !hi:2er oft
tf thiaebdill was,
d that_ the agreement
t should be
?tit dirrstioldott.theacttoduel,tadntedl
:KV it ji might declared" under
the
Company were trustees for the Great Western, and that
they were bound to complete their engagement to sell
the lines under the agreement, and that the directors
might be restrained from entering into any agreement
for amalgamating their railway with any other line.
Under the prayer it would be necessary for the court to
direct the parties to go to parliament to obtain an act for
the purpose, and the court would also have to direct that the
defendants should not oppose the passing of such en act. A
court of equity could eke such a direction, and it
' would be taking. away the right of all persoas to petition
against the possum of the act. The case of Wan r. the
Grand Junction Watarworko Company" (2 Russell and
Mylne, 407), established this propmition, that though a
waterwerk company might proceed to parliameat to enlarge
their powers and obtain water from other sources, yet that
they could not apply the funds of the existing company to
any other than the existing purposes. The case of the
Attorney-General e. the Manchester and Leeds Railway
Company ' (1 Railway Cases, 436) also established that the
court could not deal with the contract while it depended
upon the act of the legislature. It was evident that the
contract could never be carried out except with the
' sanction of the legislature, and an act for such a per.
pose could not be applied for except with the approbation
of three-fifths of the shareholders ; and it was very certain
that three-fifths of the shareholders in the Birmingham and
Oxford Company would never sanction the application, con-
sequently the act
asked to declare that the Birmingham and Oxford Company
should be trustees for the Great Western ; but how long was
this intended to last ? It might be continued from time to
time, during repeated sessions of parliament, until no opposi-
tion was made to the pawing of the act, and the court could
grant such a prayer as that.
The Vice-Chancellor said he understood that there wu an
act passed which authorised the Great Western Company to
purchase the Birmingham and Oxford, and then another
act enabling the Great Western to purchase the Birmingham
and Dudley Railway. If so, it might be contended that the
agreement which bad been entered into was only carrying
out, in one purchase, what might be done by two distinct
transaction.—Sir Fitzroy Kelly said that neither of these
acts authorised the amalgamation of the Birmingham and
Oxford and the Birmingham and Dudley Railways, and urged
that unless there were such power of amalgamation the
contract could not be enforced. The act referred to was the
10th and llth of Vic., which provided that no lease or sale
to the Great Western ab,uld be effLoted until the maximum
tolls of the Great Western should be reduced to a limit
therein specified ; and then it was declared that the tolls
should not be reduced until the transfer of the line was
effected, so that on this ground also the agreement could not
be curied into effect —Mr. J. Parker, Mr. Bacon, and Mr.
Willoock, appeared with Sir Fitzroy Kelly in support of the
demurrer, but the arguments were not concluded at the
rising of the court.

Before Vice-Chancelke Ithight Bruce.
FLEET'S D. RICHIII.-81T-ore.—The plaintiffs were a
legatee and her husband, and the defendants were the exe-
cutors, who were also devisees in trust under the will of real
estate, out of which the legacy was payable. The defence
made wee, that the legatee had retained in her possession a
deposit note, part of the testatrix's estate, alleging that the
testatrix bad given it to her. The executors hail brought an
action of trover against the husband for the note, and had
recovered damages and costs, which they now claimed a
right to set-off against the legacy.
The Vice-Chancellor said the defendants were not liable
to pay the legacy out et the proceeds of the real estate, in
their character of executors, but in that of devisees in trust.
There was, moreover, the fact that the legag was bequeathed
to the wife, whereas the judgment was against the husband
alone. There could, under these circumstances, be no set
off, aad the plaintiffs must have a decree with costs, except
against one of the trustees, who had disclaimed, and against
whom the bill must be dismissed with costs.

I.IASLAX C. RM.-COCKS/On O. ALLIBON.-HEIR-/T-
-LAW Soctirrr.—These were two suits alleging legal titles in
the plaintiffs, as heirs-at-law, to certain estates. The defen-
dants demurred, and, in the first case, Mr. Russell, for the
defendant, said that the proceedings were instigated by a
society of which the court had so often heard.—Mr. Hum-
phrey appeared in support of the demurrer in the second
cause.—Mr. Watson appeared for the plaintiffs in both snits,
sad submitted to the demurrers, but asked for leave to
amend, which the court refused.

Before Vice-Charioellor Wlgenm.
CARLYLE O. ELLlOT.—Bazacm OF INIVECTIOIC—His
Honour delivered judgment in this:motion,the facts of which
appeared in our impression of the orb instant. The object
of the motion, it will be remembered, was to commit the de-
fendant for • breach of an injunction which had been
awarded against him in October, 1845, restraining him or
his agents and workmen, from quarrying, blasting, or dig-
ging stone in a close called the Jews Churchyard, belong-
ing to the hospital of Queen Elisabeth, so as to injure
thereby the adjoining soil on which the hospital had been
built, or the building and boundary wall of the hospital itself.
The defendant having alterwuds recommenced the work
complained of, and injury having been thereby occasioned
to the boundary wall of the hospital, an application was
made in July Wt to commit the defendant fur a breach o
the injunction. The court on that occasioa made an
order, by consent of all parties, that the defendant
should pay to the plaintiffs (the trustees of the
hospital) the sum of 701., towards repairing the
damage which had been occasioned to the wall,
and the defendant undertook not to damage or interfere with
the wall in future. Since that order was made, the defend-
ant bad granted a lease of the close to a poor stone-cutter,
named Adams, by whom the quarrying had been resumed,
the defendant being :present at the time, so as to cause truth
injury to the plaintiff's wall. Hence the present motion.—
His Honour thought that the acts complained of, if done
the defendant himself, would clearly have been a breach of
the injunction. The defendant, however, had leased the
close to Adams by whom the acts had been done. By the
lease a controlling power over the working of the lessee had
been reserved to the defendant, who, instead of exercising
that power, had stood by and seen the acts committed. The
only point in the defendant's favour was the offer to indem-
nify the plaintiffs for the damage done. The order, which
appeared proper under the circumstances, was by consent of
the defendant to order him to pay the 701. within 14 days from
the date of the order, together with the costs of the motion of
July last,as well as those of the present motion. And with like
consent that the defendant should pay the expenses of re-
pairing the damage done by Adams to the wall, such damages
to be ascertained by the Muter. There would also be a
reference to the Muter to ascertain what was the least
distance from the wall within which der ndents might carry
on their works without injury to toe plaintiffs' property, and
to mark the line accordingly. And in case any injury should
ante by working up to toe line fixed, the order was to be
without prejudice to any future application by the plaintiffs
to alter the line marked. out.