The Express.
London, England, 1853-02-09 00:00:00

JUDICIAL COMMITTEE OF TILE PRIVY

COUNCIL--YostigaDAT.

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lillAtlell P 1111710111.-11

COI OP PATIN'''.
Mr. Webster appeared lot the pout inner; Sir F. T►aiger,
Mr. T. Jones, end Mr Ds teston reprerteted the opponent
of the patentee. Mr Henry Darwin.
The Might Moe. Dr. Luehingten delivered the *Want
M the 11, who w.rie ol opin,on nut wily that great .J•
v4ntrigea bad ■ecrued w the public by the introduction of
this invention, but also that the patentee bed not received
any rsuwner.•tton by to worlitnie. Under these rirtutn•
stance.. their I inistiips would isdis:se her to grant
en eatellai.n of the patent for *even years.
The counea thee adjourned sine die.

EQUITY COURTS.--YwaeknAT•.
awes. IN. Loeb (NO.. 11.1.06 &MD 1,111. LOOMS Jl.lllCill.
Ile CVMMI:4I.I...—LUXACT. . .

In thie caw., eeoieltatood---;•erist—urdar that the court
might consider whether row sati•factory arranaement
inn:hi not be made which would put an eud tu litigation,
and wl.ich was in the pa'er of to-the,
Their lordsnipsintimtiml that they would take some fur-
ther time to look into a matter of form connected with writs
of sunemed•me-
RI !MIMS AND 1)11 L RAILWAY Cotar.tne Ex

MoWAIT A.I. ELLIUTE—TILM 11 INDINU t r Acr.
This ease, wheels was part heard on • former day. was
resumed. It was en appeal from an order of Vice-Chan-
cellor Kinder&ley confirming a decision of the Master,
piecing Mr. Nowell and Dr. Elliott on the list of contri-
butories to the liabilities of the D Jeer and Railway
Company, under the Winding-up Act. A guarantee had
been gist a by the directors to the shareholders, among
whom were Mr. Mowatt and Dr. }.l•utt, that, if the com-
pany did not obtain at act of parliament, they should not
only be held harmh•a of liability, but that their deposits
should be smutted ti them in full. The Master had made
• cell of n. a shire.

Mr Daniel, Mr. Witles Of the common-law bar). and
Mr. Itoaburuh. ter the appellant', contended that they
were not only held haradeas by the gulrantee, but untitled
to have tae whole of *hear deposit. returned to them.
. .

Mr. Diane and Mr. rieliryn, for the official manager,
urged that the Liet of Mr. Molest% and Dr. Elliott's having
signed the deed constituting the company rendered them
liable, notwithstanding the gosiantee.
Mr. Ilislap Clarke appeared to watch the ease for Lord
LlndesborJugh, one of the directors.
The Lord Chancellor, without hearing the reply, said
that there was an order fur the winding-up of the sffain of
this company, and all the shareholders had been placed on
the list of emitributories to certain aspen,.. incurred by
. .

the official manager in getting in some outstanding debts of
the company, as well as to some debts against the coin-
piny, which were still unpaid, and the Master had made a
ea:, able call to liquidate those liabilities, and the question
was whether that call was just or not. He doubted whe-
ther the precise point in the case had been brought before
the Vice-Chancell..r, for the ease appeared to him to be
free from any doubt nr difficulty. The company was un-
able to get all their shares taken, and u an inducement to
persons to take them entered into arrangements with the
South Eastern Railway Company, by which the
ahem of this company would be made stock
of that company. On 24th of January, 1846, the
directors issued a circular which accompanied the letters
of allotment, in which it was stated that the arrangements
with the South Eastern Riilway Company had been com-
pleted, which would ensure the Dort r and Deal Company
from loss ; and that in the event of an set of parliament
not being obtained by.the Dover and Deal Company, the
whole of the deposits would be returned without deduc-
tion. 1 hat was clearly an indemnity against all lots. This
circular was advertised in the newspapers on the 20th
January and one of the solicitors of the company sent a
cope of It to Dr. Elliott, and pointing out the advantages
to be obtained by the shareholders, urged him to take
shares, and get his friends to do so also ; and Mr. Mowatt,
through Dr. Elliott, was induced to take some shares. He
could uot, therefore, be said not to have been aware of this
guarantee, and he eccordisgly signed the deed on the 2nd
of February. On the 4th February, the solicitor of the
company induced tie. Mowatt to take snore shares; which
be did, and a second time executed the deed on the faith of
the guarantee. There could be no doubt that the parties
previously liable were the directors, who by the indemnity
which they gave induced him to take the shares and to sign
the deed. The guarantee wi.s collateral to the deed, and
its meaning was that, in effect, "if you will execute the
deed, we will guarantee you against loss." The order
therefore, as regarded Mr. Mowatt and Dr. Elliott, must
be discharged.
The Lords Justices concurred, and the appeal was allowed
with coots.

Some discussion then arose with regard to the nature of
the ordrr, and it was arranged that the order should be
made fur the discharge of the whole tall.
The Lord Cheasellur here left the court, sad the Lords
Justices sat alone. _

BILEN•N O. PRZISTOX.
Tins was a motion to commit the defendants for contempt
in not obeying the injunction which had been granted to
restrain them from proceeding with an action at law. The
ease was only part hoard when the court rose, and we there-
fore postpone oar report.

Bares' ?WM Muria co furs law.

SHRIWARORT AND BIRMINGHAM RAILWAY COMPANT
•. LoNboN AND 14 (Wit WRSTRIN RAILWAY CONYANY.
—J VD42111111%
_ _

of the Rolls gave judgment in this case. The
bill was filed by the Shrewsbary as.d Birmingham Railway
Company against the London and North Waste= Railway
Company and the Shropshire Union Railway and Canal
Company, for the purpose of enforcing the due fulfilment
and obtaining the arms of an agreement entered into be-
tween the companies, which was entered into under then
cirensestances. In 1847 the London and North Western
and the Shropshire Union had a bill in parliament to au-
thorise the London and North Western to undertake a lease
elf the Shropshire Union. That bill was opposed by the
plaintiffs, and in order to induce them to withdraw their op-
position, an agreement was entered into in the
month of May, 1317, but which was not re-
duced to writing until the 12th of October, 1847.
The opposition was withdrawn and the bill passed. In the
agreement the London and North Western Company
agreed to take a lease of the plain itL' railway, and not to
convey any italic from Shrewsbury to Wellington, or to
worths line by Gursol and Stafford to compete for any
traffic which properly belonged to the Shrewsbury and
Birmingham Railway. The Shrewsbury and Birmingham
Railway, is November, 1849, applied to the defendants tol
innate the lease. This was not done, and in the month of
December following the plaintiffs filed their bill in this
NON, pra)ing that the defendants, the London and North
Western Company, might be decreed to refine their con-
tract. A demurrer was put in, which was argued before
the late Vice-Chancellor of Ragland, who allowed the de-
Rayner. This decision was appealed spinet to the
Lord Chancellor (Lord Cottenham), who overruled it.
On the answer being put in an application was made in De-
cember, 18.50, to Lod Intro, who was then Lord Chancellx,
for as injunction, which had been granted to be continued,
and his lordship thought that the question as to the injunc-
tion could not be determined until various questions had
been decided at law, and he, therefore, dissolved the in-
junction granted by Lord Cottenhain, and gave liberty to
the parties to bring such action as they might be advised,
the plaintiffs and defendants agreeing to keep accounts in
the meantime. The action was brought, and after the
judgment of the Court of Queen's Bench, in November,
18.51 (in favour of the pi einuffs), the motion for an Bijou-
Mon was renewed before him is the early part of last year.
The motion, however, stood over until the hearing, which
took place is November. The ease of the plaintiffs was
that the defendants bad broken the agreement, while the
defendants contended that the agreement was void ; that
It was beyond the powers of the company under
their act of parliament, and that it was against
public policy ; and, moreover, that even if it were
valid the period at which it should come into operation had
not arrived, and would not arrive until the whole of the
lines in question were completed. The plaintiffs contended
that all these questions had been determined in their fa-
vour by the court of law, the judgment of which was con-
firmed by Lord C .ttenham, and the defendants contended
that Lord Cottenham's decision was not conclusive—that
the court must be determined by the decision of Lord
Truro, who had dissolved the injunction—that the ques-
tions which Lord Truro thought should be determined at
law had not is reality been determined—and that until
they were determined this cause should stand over. lie
WWI not, however, disposed to adopt that course, but upon
a full consideration of the case, he had thought it better
for the parties themselves, and more consistent with
the duties imposed upon the court, especially since
the last statute, to endeavour himself to come
to the best conclusion he could, and by this means din
%oration would probably at an earlier period come to be de-
cided by a higher tribunal. The first question was whether
the agreement was valid. The main grounds on which the
defendants relied were—first, that it was • fraud upon the
public by conferring a monopoly; and, secondly, that it
was not within the scope of the act. The first ground had
been overruled by the decnian of Lord Cottenham, and
also by the Court of Queen's Bench; and as to the nomad
pond, ha did not think that the validity of the agreement
had hesmentialilebrd. The next question, however, stood,
on a different ground. It was this—whether the agreement
was to come into effect in accordance with the act of par.
liament. He was of opinion that it must, and that as the
act only gave power to the one party to grant, and to the
other to accept, a lens when the lines were completed, and
as they were not yet completed, the time had not arrived
when the agreement should come into operation. He was
of opinion, therefore, that the ease for the plaintiffs failed,
and that the bill must be dismissed. He thought, how-
ever, it was not a case for eons, and he should therefore
cumin both this and the cross bill without costs.

•oreaa WwweitAwnium erVaill%
This w the int day of the sittings after Hilary Term.
FPOOILS Y. TUB LONDON AND SOUTH Will7l/21 RAILWAY

Co
The bill in this suit war filed on the 16th of December,
1852, by the plaintiff' nn behalf of themselves and all
other the shareholders 'can't the company and the direc-
tion. The object of the bill was to obtatu • declaration of
the court that it woo not within the powers of the London
sod Smith Western Railway Company to complete, or fur-
ther to arty on, the works of a railway, the construc-
tion a or i h they had commenced from Su-
beasts se &Blistery, sad that the feeds of
Ils• Lassies sad &ma Western Railway Company

cannot be lawfully applied to such purposes, and for en in-
junction to restrain the directors of the Loudon and South
Western Railway front farther carrying on and completing
each works, and for a declaratim that the directors were
personally responsible for all tummy* expended and acts .
done in the completion or further carrying on these works ,
subsequent to the period limited by the London sad South l
Western Extension Act for the completion of these work..
The cause came on upon tuition for an injunction in the
terms of the prayer sif the bill, so far as it referred to an
injunction. The motion was argued on the 13th and 11th
of January. It appeared that in 1816 an act wee passed by
which the construction of a branch railway front Basing-
stoke to baliebury was nuthorised within a period of five
years, the powers of taking land compulsorily being how-
ever limited to three years, and in 1849 by another act those
compulsory powers were extended to a further period of
two years. All these powers expired in the autumn of 18.51.
In January, 18.52 (after the periods limited by each act had
expired), the directors entered into a contract with Mr.
Brassey for proceeding with the works, under
which ho was working up to the time of the
motion being made. It also appeared that shortly
after the issuing of the act in 1846, the directors had con-
tracted with Mr. Beauty to form the line at the price of
380,0001., slid he began the w rks, which he continued until
some time in the year 1848, when, in consequence of the
panic, the works were suspended, with a view to relieve the
shareholders from a call at so unfavourable a period. The
works sulasequenty proceeded slowly, and in June, 1851,
when the act expired, the amount expended in the forma-
tion of the line was 27.3,4811. Half yearly inectings of the
shareholders were held under the act, at which the accounts
of the expenditure were regularly presented. The opinion
of the shareholders had been taken on the original contract
and on the subsequent ausisension of the works, and the pro-
ceedings of the directors were approved of from time to
time by resolutions which were printed and regularly eir-
minted amongst the subscribers. On the expiration of the
powers in the act in December, 18,51. the expediency of
recommencing the works was considered at a special general
meeting. A committee of shareholders was appointed, by
whose report the shareholders were recommended to authorise
the directors to continue their works as soon a, their
finances would permit, and at a subsequent meeting the
recommendation wu adopted, and the director, entered
into the agreement with Mr. Brassey, to complete the
railway with a Uncle line as far as Andover only, for
74,0001., and the works under this contract now proceeding
formed the suhject of the present motion.
Mr. Malin and Mr. F. J. Wood submitted that the act
now complained of being illegal, it ouvht to be restrained
at the instance of any shareholder. The 'section of mist-
ing, of the shareholders could not give validity to the act.
which was itself illegal. It did not appear that the plaintiffs
had concurred in this unction, or that they were present at
the meeting ; and even if they had been, no acquincence on
their port was sufficient to destroy their right to prevent
this act, itself illegal, from being done. The only question+
which the court could consider were whether the plaintiffs
were shareholders, and whether the act was ill, gal ? Both
points were clear, and the plaintiffs were therefore entitled
to the injunction.
Mr. Bacon, Mr. Follett, and Mr. Wickens, for the de-
fendant:, submitted that the acts were not illegal. It might
be a question whether, their powers being expired, the
company could compulsorily take land; or, at the suit of
the Attorney .O I, as representing the public, it might
be a question whether time was the essence of the contract
as between the company and the public, but as amongst
themselves it was not competent for any shareholders hav-
ing acquiesced ti claim to stop the very proceedings in
which they had acquiesced. In cases where the court had
interposed by injunction there was something not authorised
by the company's act, but here the very thing complained of
was that whieh the act authorised. Again, it was a rule of
the court not to interfere by injunction, at least in a ease of
any doubt. where the consequences of granting the injunc-
tion would have caused infinitely more mischief than could
be occasioned by refusing it. The case stood over for his
Honour's judgment.

COURT OF QUEEN'S BENCH.-YErrERDAT.
lITTWO, AT ITIAT Pauaa—Eooi■ LOND CANT/AIL •A • Silt=

JIMT.

THE QUEEN V. ORCHARD AND COX.- ALTAI:IID
ComoriaAcr.

This was an indictment fur an aileeed conspiracy to de-
fraud a pasty of his coats, and to mislead the Court of Com-
mon Pleas and one of the Masters of that court, in reference
to the same bill of costs.

Mr. M. Chambers, Q.C. (who with Mr. Henniker ap-
peared for the prosecution), said that tho defendant Orchard
was an attorney, and the defendant Cot his articled clerk.
In the year 1819, a Mr. F. G. Orchard, then • minor,
brought his action by his nut friend against • Mr. Reek.
straw, which action came on for trial upon; the 17th April,
1850. Upon the trial Mr. F. 0. Orchard obtained a ver-
dict for 311. 10s. After the trial the costs were lazed in the
usual way, the attorneys upon both sides attending before
a Master of the Court of Common Pleas, in order that he
might give his allocatur certifying the proper amount to be
paid. In the Uution of bill. of coca, it is usual for the
attorney to make an affidavit, called au affidavit of increase,
setting out the amounts paid by him to the Tarim' wit.
nesses. This affidavit was made in this instance ; but, as
the prosecutor alleged, the statements of moneys paid con-
tained therein were false, and were known to be so by the
defendants, inumueh as the money in some instances had
not been paid. This was the ground of the present premo-
nition.

Mr. Se ''sent Wilkins appeared for the defendant Orchard,
and Mr. E. James, ca.c., and Mr. Huddlestone for the de-
fendant Col. The learned eerjeant contended that although
the defendant Orchard would appear to have acted irre-
gularly, yet the intention (which was the gist of the offence)
was not fraudulent.

Mr. E. James, for the defendant Cos, adopted the same
line of defence.

A great many witnesses were called as to the character
of the two defendants, all of whom spoke eery highly of
their honourable and upright conduct.
Lord Campbell then summed up.
The ry returned a verdict of Guilty.
Mr. E. James 'eked, on behalf of both defendants, that
the court would hear afidavits in mitigation on a future
day.
Lord Campbell was ready to bear them at that moment.
Mr. E. James said that none were yet prepared.
Lord Campbell then ordered that the defendants should
come up to receive sentence upon Thunday neat.

COURT OF EXCHEQUER.—YEATERDAY.
smums AT Nnt Pants AT WATIIIIIITTIL—Rowe Ma. BATON
Alums mob Imam. Joan.
BATSMAN •ND ANOTEER a. GRAT.—ALLECIED
INFILINGIIIINT 01, • PATIINT.
_. .

This part-heard ease, which we noticed yesterday, was
concluded this morning.
The learned Judge was in the midst of summing up,when
The jury interposed, and said they had agreed upon their
verdict, which they thought should be given for the plain-
tiff-damages, 40s.
The Attorney-General tendered a bill of exceptions to his
lordship's ruling.
TEE SOUTH YORKSHIRE AND RIVER DUN RAILWAY

CONTANT O. JOH-;11-8T-0-Xl:

This was an ac.ion to recover 2641. for calls made on
shares in this eomnaay held by the defendant, and
481. Ile. Bd. fur iatereat.

Mr. H. Hill, Q.C., and Mr. Phipson appeared for the
plaintiffs, and Mr. Bramwell, Q.C., and Mr. Outh for the
defendant.
It appeared that the plaintiffs' company had been smal-
gamated with other companies ; and although the defendant
had applied fur shares in the South Yorkahire Railway Com-
pany, other shares had been sent to him, and he had re--
feud to pay the calls which bad been made upon them.
The point at iieue resolved itself into • question of law;
and it was understood that it would be turned into a special
case for the opinion of the court above.
Mr. Baron Martin said he was of opinion that the plain-
tiffff• had no ease.

The plaiotiffs were accordingly nouseited, leave being
reserved to move to cuter a verdict for the plaintiffs, should
the court above decide the question of law in their favour.

PREROGATIVE COURT.—YESTKRDAY.
Biros. tka Joni Domes.
The coon was engaged all day in hearing the care of
" Gorham v. Maim and Goodfellow," the arguments in
which were not concluded.

COURT OF BAN
Barons Xs.

r.-YESTERDAY.
BOLP/TD.

IN RI K 1

~11111 OP

This was the last examination meeting in the matter of
W. J. Herridge, who h►d carried on business as a cheese-
monger, at Deptfori. lie had nit surrendered, and it was
stated that he had gone to Australia. The liabilities are
not considerable, it is thought something under 1,0001.;
and the bankrupt has left behind him about 1501. in debts
and proparty. lie was ordered to be proclaimed in the usual
form.

Baron. Ma. Caionsuoxza Er*ra

IN as M'Ciltoaos.—AxoTura B. . -7- BANIRIIPT.

This was the last examination meeting in the case of W.
M.George draper and tallyman, of St. John-street-road.
He also lisla absconded to Australia. Ili+ debts are about
1,000/. • the assets consist of a few debts which he has left
uncoacted, the proceeds of which are uncertain.
Mr. Lawrence, for the assignees, stated the facts to the
court, and applied for the usual order thereupon.
Hie Honour directed the bankrupt to be proclaimed.

INSOLVENT DEBTORS' COURT.-MTERDAT.

Mimosa Ma.

Law.

IM THE MATTI& or Juits HEMET CROMWELL RUSSP.LL.
This insolvent, said to he a lineal descendant of Oliver
Cromwell, appeared for further examination. Mr. Sargood
opposed for Mr. Thomu Tapping, • barrister, and three
other barristers; Mr. Cooke supported.
The case occupied the whole day, and counsel addressed
the court at considerable length. The principal complaint
was that the insolvent, an attorney, had made a fraudulent
disposition of his property. In the year 1845, the insol-
vent, and it was alleged Mr. Tapping, had projected the
Thames, Southend, Northern and Eastern Junction Rail-
way Company—and the parties advanced 2001. each to
any on the undertaking. The insolvent gave his I 0 U's
for the money on which he was sued, and judgments were
obtained. A few days before the trials the insolvent made a
post nuptial settlement on his wife, and resided several
years abroad. He came to England last May, and was
arrested. He had been several times before the court.

A singular circumstance occurred on the present occasion.
It appeased that the insolvent had presented a memorial on
account of some tithes in respect of the very property
which had been presented to the Earl of Albemarle for the
pert he teak is the restoration of Charles 11., audit had by