The Sun.
London, England, 1852-11-16 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY.
(Before the Lord Chancellor.)

HAWSES V. THE EASTERN COUNTIES RAILWAY COMPANY.

The Lord Chancellor gave judgment in this care, and
after stating the position of the parties, the nature of the
agreement, and the provisions of the act obtained by the
company, he observed that the sole question was whether
the plaintiff could in that court enforce the strict per-
formance of an agreement made during the progress of a
railway bill through Parliament. The company had been
prohibited from making a particular diverging or curvi-
linear line,but by the possession of Mr. Hawke, s
pro-
perty they became enabled at any time to do that indi-
rectly which they could not do directly, although in the.
agreement itself there was no reference to any such
.m-
-tention. The company, however, did not make the line
from Wisbeach to Spalding, they did not, therefore, re-
quire land for effecting the junction with the Ambergate
line, and after a long correspondence set out in the
pleadings, they finally received notice from Mr. Hawkes,
and nobody could blame him for giving it, that he in-
tended to give up possession of the house and land. The
company then sent proposals for compensation, but in
the end they gave notice that they did not intend to ful-
fil the agreement, and Mr. Hawkes with all diligence
filed his bill in January, 1849. Now it was not from
any doubt his lordship entertained on the question of the
power to enforce the performance of the agreement, but
from the importance of some questions of law which were
raised in the course of the argument, that he had deferred
his decision. None of those questions were involved in
this case. It so happened that a portion of the land to
be taken was affected by the Act of Parliament. That
gave a ground of jurisdiction, and it would seem quite of
course that if a party fully capable of contracting enters
into an agreement with a company to which Parliament
has given certain powers, that the company cannot ne-
glect or not perform the conditions of the agreement,
because their powers have lapsed by time, or because
they were about to do an act which they thought proper
to call an illegal one. In his lordship's opinion it was a
plain case for specific performance. It was objected that
the consideration was not a good one, but the cases of
Stanley v. the Birkenhead Railway, Edwards v. the Grand
Junction, and Simpson v. Lord Howden, all reported in
the same volume of railway cases, settled the question
that an agreement not to oppose the passing of a railway
Act was a good consideration, and that even if the line
was abandoned, the contract could be enforced. The
case of Lord Petre was still stronger. The condition
there was enormous-120,0001. for passing through the
grounds and in view of the mansion, and it was con-
tended beside, that Lord Petre, as a peer, could not
make such a contract. The objection was, however,
overruled. It was held that Lord Petre had as much
right to contract as any other person, and the whole of
the cases established the fact that an agreement made in
anticipation of the passing of an Act not to evade its pro-
visions, but to assist in enforcing them, was one that
must be performed. Several grounds had been urged in
argument against the fulfilment of this contract on the
part of the company, and the first of them was the hard-
ship on the shareholders ; but the cases in the volume
of railway cases, to which he had alluded, and particu-
larly at pp. 199 and 370, showed that there could be no
separation of those who contracted from the general
body when there was no fraudulent concealment. The
next ground was the hardship of the time having ex-
pired in which the works could be constructed, and the
purchase rendered available. That, however, was the
fault of the defendants themselves, who had acted with
as much bad faith as his Lordship had ever witnessed in
a public company with regard to this transaction. If
there was a hardship, the company had brought it on
themselves. The question of lapse of time was effec-
tually,disposed of by the observations of the Court in
the case 'of the Oxford and Birmingham Junction Rail-
way, 2 Phillips, 604-5. It had been contended, how-
ever, that the cases of contract of this description en-
forced by the Court had been reversed, and one of those
cases was said to be Webb v. the Direct Portsmouth
Railway. His Lordship had examined that case, and
he was clearly of opinion it was reversed on account of
the uncertainty of the contract. If he thought other-
wise he certainly should have required further time to
inquire and consider, but it appeared to him plain that
the Court did proceed there on the uncertainty of the
contract. His Lordship held that no subsequent acci-
dent could alter a contract such as that under his
consideration. The company when they contracted
had in their contemplation the passing of their Act.
It did pass, and with the plaintiff there was a
valid contract, good faith and honesty required it to
be upheld, and if Webb's case had proved to be that
which it was not—a reversal of the law—yet his Lord-
ship would have taken on himself the responsibility
of adhering to the principle of the other cases, and of
deciding as he did now. Then the case of Lord J. Stuart
v. the London and North-Western Railway, 21 Law
Journal, had been cited, as opposed to the other decided
cases. There, however, the positive contract was dis-
puted, and on that ground, as well as delay, the Master
of the Rolls refused to interfere. After referring to the
cases of Macgregor v. the Dover and Deal Company,
and Bagshawe v. the Eastern Union, his Lordship com-
mented strongly on that line of defence taken by the
company, which went to urge that they exceeded their
powers in making the contract, and that the plaintiff
knew they did so. There was nothing of the kind to be
found in the pleadings. There was no proof of it any-
where, and if it was to have been a ground of defence it
puliaeihntaiffehamrgigel.it
Ahaftvee
r hadopportunitydispoasinngof
ought to have been stated in the answer, so that the
tie question
r rebutting
tai
nt
of mutuality, and referring briefly to Goodge v. the Col-
chester Compan: and Fage v. the Newmarket, his Lord-
ship concluded by declaring eight law, eouity, and justice
agreed in enforcing such la contract as that before him.
and he had great satisfaction in dismissing the appeal
with costs.

Mr. Wigram asked for th• costs of the hearing before
Lord Truro.

Mr. Malins opposed this. It was the right of the de-
fendants at that time to demand a rehearing, and the
recent case of Webb and the other appeared to have
made an alteration in the Jaw.
His Lordship thought there was ground for rehearing,
and refused to give these costs.
The appeal against the order on exceptions to the title
of Mr. Hawkes, was ordered to stand over.

[Before Vice-Chancellor Stuart.].
IN RE THE UNIVERSAL SALVAGE COMPANY-Ex PARTE

WINTHROP.
This was a motion to reverse a decision of Master
Farrer, who had disallowed a claim of Mr. Winthrop as
a creditor of the above company of 2,1431. The facts
stated were these :—On the 15th of August, 1845, the
Hon. C. J. Murray, one of the directors, lent the com-
pany 3,000/., and as security took the joint and several
bond of nine other directors. The sum of 300/., Mr.
Murray's tenth share, had not, in fact, been paid by him.
In February, 1846, the time allowed by the bond for
repayment expired, but the loan was continued, and a
policy of assurance for 5,000/. and a warrant of attorney
were given to Mr. Murray, as a further security for
the loan. It was agreed that judgment should not
be entered upon that' warrant of attorney unless
any default were made in the payment of the pre-
miums.' Default having been made in the payment
of the premiums. Mr. Murray entered up judgment,
and took out execution against Mr. Winthrop and ano-
ther person connected with the company : a bill filed by
them to restrain execution was dismissed with costs.
Mr. Winthorp paid the sum of 2,1431. to Mr. Murray,
which, with contributions from others, made up a sum
of 3,741/. 13s. 4d. It appeared that on the 26th of
August, 1845, eleven days after Mr. Murray's loan, it
was resolved that each party making such advance
should be allowed 63 shares, as a security for the same,
with liberty to retain such shares in satisfaction thereof,
or to return the same, and claim the repayment of such
advances out of the company's funds. It was urged that
as Mr. Winthrop had retained the shares, and taken no
steps to return them and claim repayment, he had elected
to keep them.
Mr. Bagally appeared in support of the motion, to op-
pose
e h
were which Motrth facts before him. The question was
whether upon.Ruessellan
The Vice-Chancellor and Mr. Selwyn appeared, but
thought the Master had decided
properly on nwhether Mr. Winthrop was to be regarded as a creditor
properly
for the whole amount, or was to be deemed to have
made his election to retain the shares. Mr. Winthrop
had not returned the shares, and claimed payment. He
must be considered to have retained them in satisfaction
of his debt. The motion must be refused with costs.

COURT OF QUEEN'S BENCH.
(Sittings in Banco.)

THE QUEEN V. THE MAYOR AND ASSESSORS OF HARWICH

Mr. O'Malley moved for a rule to show cause why a
mandamus should not issue to these defendants, com-
manding them to entertain and discuss objections made
to certain persons whose names were now on the burgess
list of the borough. Notices of objections to these per-
sons had been given to the mayor and assessors before
the period of the late revision, and notices of the ob-
jections had likewise been served on the persons them-
selves, but when the revision took place, the mayor and
assessors refused to hear the cases discussed, as they were
of opinion that the notices served on the persons thus
objected to were insufficient. The 17th sec. of the
sth and 6th Win. IV., c. 76, the Municipal Corporation
Act, required that when the right of any person to have
his name on the burgess list was contested, notices of
objection should be given to the town clerk, and like-
wise to the voter, in the form No. 3, inserted in schedule
Dof the statute. In that form the residence of the
voter was described, that residence being the one which
was stated in the burgess list. A notice exactly in con-
formity with that which was inserted in the schedule,
had in this case been given to the town clerk, but the
notice served on the party himself was addressed to him
at his residence, but did not contain within it the state-
ment of the residence. On the ground of this omission,
the mayor and assessors held the notice to be insufficient.
The Learned Counsel contended that this decision was
erroneous, and that the objectors ought to have been
heard in support of their case.
The Court granted a rule to show cause.