The Sun.
London, England, 1837-03-03 00:00:00

gives but a gloomy prospect of the time that will be taken in
our other affairs.

" I am taken one day for a high diplomatist in disguise,
and another for an English officer, sent out on this expedi-
tion by an animal of which they have a more wholesome dread
than I was prepared for—the British Parliament. My Italian
servant and interpreter is by no means inclined to make him-
self merry with these suppositions, nor feel flattered at being
suspected to be a Turkish officer in disguise ; and I begin to
get seriously alarmed lest some injury be done hint under this
impression.

;"l'he weather lately has been remarkably fine and mild ;
the thermometer, one morning, at 60 degrees ; wind southerly.
To-day we have had roast beef and plum-pudding, our hearty
Capt. Chihli declaring that we should thi= day dine as they
do in England, if we should even have to starve for it through
the rest of the week.—l remain, &c.

" JAMES BELL."

ROLLS' COURT.-(THIS DAY.)

YORX AND NORTII MIDLAND RAILWAY.
JUDGMENT.-SIMPSON V. LORD IIOWDEN.

Lord LANGDALE in giving judgment in this case, which was
argued on Wednesday last, said the bill was filed by Sir John
Simpson and other persons, who had entered into an agree-
ment with Lord Howden, the defendant, praying that the
agreement might either be delivered up to be cancelled, on
the ground of its being illegal and against public policy, or
that the defendant might be restrained from proceeding at law
to recover the money thereby agreed to be given to him, until
some part of his land should be taken possession of by the
York and North Midland Railway Company, The case came
on for argument upon a general demurrer to the bill. The
bill stated, that in the year 1835 a company was formed for
making the railway referred to; that many persons subscribed
aed became purchasers of shares, and that propositions were
made to procure an Act of Parliament to incorporate the Com-
pany, and give them compulsory power to purchase lands;
that, pursuant to the Parliamentary regulations, maps of the
intended railway were deposited with the clerks of the peace ;
arid that Lord Howden was a proprietor of land through which
the intended railway was to pass. That at first he expressed
no objection, but stipulated that the railway should pass as far
to the eastward of his estate as possible ; and that being as-
sented to, he appeared satisfied ; but afterwards, without rea-
son assigned, he expressed himself to be opposed to the line,
and required that it should be withdrawn altogether from his
land. This opposition of his Lordship being expressed too
late to enable the Company to survey a new line, and pre-
, pare and deposit the necessary plans and maps within the
time required by Parliament, the Company went on with
their proposed application, and Lord Howden petitioned the
House of Commons in opposition to it. In that state of things
the parties came to the agreement in question in the cause,
dated the 4th May, 1836. That agreement was in effect that
Lord Howden should withdraw his opposition to the Act the
Company were then soliciting ; that the Company having ob-
tained the Act of Parliament according to the line then
applied for, should within six months after the Act had received
the Royal Assent, pay to Lord Howden 5,000/., and that they
should in the next Session use their best endeavours to procure
an Act to vary the line according to the agreement then made
between the parties. The 5,000/. was to be the compensa-
tion to Lord Howden for the damage his lands and estates
would receive by the intended line ; but without prejudice to
any further compensation he would be entitled to, if the varied
line should not be authorized, and that compensation was pro-
vided for in a particular manner by the agreements. Besides this
Lord llowden was to receive 1001. for every acre of land
taken by the Company, and there was a proviso that the agree-
ment should be void, if the Bill then before Parliament did not
pass into a law during that Session. This agreement having
been entered into, Lord Howden withdrew his opposition to
the Bill, which received the Royal Assent on the 26th June,
1836. The line of railway authorised by the Act was the ori-
ginal line, of which maps or plans had been deposited with the
Clerks of the Peace. The Bill stated, that after the passing
of the Act, and before possession had been taken of any of the lands
of Lord Howden, a new and more direct line, by three-quar-
ters of a mile, was recommended to the Company by their
engineer ; that the Committee resolved to adopt it ; that a
petition had been presented to Parliament, this Session, for
liberty to avail themselves of the new line ; and that, by
the adoption of it, the lands of Lord Howden would be
avoided, and consequently would sustain no damage, as was
contemplated when the agreement of the 4th of May, 1836,
was entered into. The bill then-alleged the agreement was
against public policy and illegal, and that no demand could be
sustained by either of the parties thereto against the other in
respect of it ; and further, that if the agreement were legal
or valid, it was not the intention of the parties that Lord llow-
den should be entitled to the 5,000/. as compensation, until it
should appear that some damage had been done to his property,
but that Lord Howden had commenced and was prosecuting
an action for 5,0001., and thereupon relief was prayed. In sup-
port of the demurrer it was argued the agreement was fair and
legal ; that the withdrawal of opposition to an Act of Parlia-
ment was ,good consideration for it ; that it was not against
public policy ; and that if there was a doubt whether the
agreement was against public policy, it was a question
for a Court of Law to determine upon. It was also ar-
gued that the authority of Parliament had not been re-
ceived for the deviated line; that Lord Howden's land
might yet be required ; that, therefore, he was in any view
of the case entitled to compensation, and consequently
the agreement ought not to be delivered up to be cancelled.
As a Court of Law had not the authority which a Court of
Equity had to order an agreement to be delivered up to be
cancelled, and as a Court of Equity in cases of doubt or diffi-
culty had the means of either obtaining the assistance of a
Court of Law or of putting the matter in a course of trial,
under the direction of the Judges of the Common Law, his
Lordship could no: allow the demurrer, on the ground that
this was an attempt to change the jurisdiction. He must con-
sider the question in regard to that part of the prayer of the
bill which asked that the agreement might be delivered up to
be cancelled. He should not take notice of the fact that the
plaintiffs were partakers of the illegality, if illegality there
was, with the defendant, because in cases depending on public
policy the Court did not give relief for the sake of the party
complaining, but for the sake of the public, and to
avoid public injury. The plaintiffs had contended the agree-
ment was illegal on these grounds—first, that it was a fraud
on the other landholders, through whose grounds the line was
intended to pass; secondly, that it was a fraud on the Legis-
lature by procuring an Act of Parliament on the ground that
one line was the best, when in fact that line was not intended
to be adopted; and thirdly, it was an illegal act of Lord How-
den, who was a Member of Parliament, to enter into an agree-
ment which put his private interests in competition with his
public duty as a Legislator, and gave him a direct interest in
the very subject on which that duty was to be performed. his
Lordship considered it was not necessary for him to determine
on the present occasion whether the agreement could be pro-
perly considered as a fraud on the other landholders, through
whose grounds the line of Railway was to pass, or how far the
character of the defendant, as a Member of Parliament, pre-
cluded him from entering into such an agreement. Al-
though it had been held that the withdrawal of opposition
to a Bill in Parliament might be a good consideration for a
contract, yet it by no means followed it might be so in
this particular case. But his Lordship would not enter
particularly into that question, because it appeared to him the
second ground for considering the agreement as invalid, was
sufficient to enable him to decide the demurer. Acts of Par-
liament, like the Act obtained in the present case, were laws
by which to some, and often to a very great extent, private
rights were sacrificed for something alleged and supposed to
be a great general and public benefit. The land, which a man
considered as his own, and which it was for the general in-
terest of the community he should safely consider his own, was
against his will taken from him—he was, against his will,
compelled to take for it a consideration in money, which
ha did not want ;land the ground on which that was done
was, that the public were supposed to derive some great
benefit from the proceeding. The Legislature judged of the
public benefit to be obtained from great schemes after hearing
all persons whose private interests were concerned, or con-
ceived to be in opposition to the scheme; and the Legislature
could only come to a right conclusion by knowing correctly
arid distinctly whose property was to be affected. For this
purpose notices were to be given, the maps and plans were to
be deposited, and the parties heard. In the present case Lord
Howden having at first opposed the Bill, subsequently entered
into an agreement to withdraw his opposition. By his consent
he concurred with the promoters of the Bill in representing
the line of road in the plan, duly deposited, was the line to be
adopted and acted upon. This representation must be consi-
dered to have had its effect on the minds of all persons interested
and who had no opportunity of contemplating that any other
line of road would be adopted. The promoters of the Bill and
Lord Howden prevailed on the Legislature to incorporate the
Company, and to sanction a line of way, from which it was
secretly intended by them to make a considerable deviation ;
and having gained the incorporation, and having the authority
of the Legislature to commence their operations, They were to
use their best endeavours to procure another Act for a varied
line. His Lordship did not think, if the Legislature had
a knowledge that the promoters of the Bill had en-
tered into that agreement, they would have consented
to the passing of the Bill. Looking at the conduct of the
parties, and that which they stipulated to do, and the conse-
quences of such conduct and stipulations both to the Legis-
lature and the public, his Lordship saw stron,g reasons for
thinking the contract would be considered and held to he ille-
gal. Ile could not decide in favour of the demurrer without
entertaining a clear opinion the contract was valid ; and
thinking it on the contrary very probable the contract would
prove to be invalid, his Lordship was of opinion on that
ground the demurrer must be overruled.
Mr. WILBRAHAM then moved on the part of the plaintiffs
for the common injunction to restrain the proceedings at law
on the overruling of the demurrer.—Granted.
The Court then proceeded with the consent petitions.

HOUSE OF LORDS.-(THIS DAY.)

ROSS V. MACLEAY.

This case, which was an appeal from the Court of Session,
Scotland, was opened last night, and Sir F. POLLOCK resumed
his statement on behalf of the appellant this morning. In the
year 1794, the appellant, Hugh Ross, was appointed Deputy
Paymaster-General to the Forces in the Island of Martinique,
in the West Indies, and this situation necessarily led to large
sums of money passing through his hands, which required a
great number of accounts to be kept, and considerable assistance
in transacting the business of that department. Early in the
year 1795, the respondent, Kenneth Mackay, went out to the
West Indies, and, in July, he began to act as head-clerk in the
pay-office under the appellant. In that year, from the state
ill of
public affairs, the accounts and business of the office were in-
creased to a considerable degree, and in consequence of health
Mr. Ross was obliged to leave Martinique, and the whole
duties of the office devolved upon Mackay. Notwithstanding