The Sun.
London, England, 1847-01-27 00:00:00

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ROLLS' COURT.—(THIS DAY.)
?lII{ ATTORNEY-GENERAL V. THE IRONMONGERS' COMPANY.
This was a petition, praying for the payment of the cost
of certain advertisements which had been incurred by the
Pad
It appeared that a charity of 150,0001., which
Pad been left for the purpose of ransoming British captives
in Turkey and Barbary, had by a decree of the Court been
diverted into the maintaining of certain schools in this
country. The petitioner advertised the existence of this
charity, and demanded the payment of the expenses of the
same, which was resisted by the defendants, who are trustees
of the charity.
ray
;'ray for the Attorney-General, and Mr. Kindersley for the
Ironmongers' Company.
the case concluded today, but hii Lordship deferred
tiengment to afford the parties an opportunity for arrange-
ntand directed the matter to be mentioned on Saturday
nett.
QUEEN'S BENCH.—(THIS DAY.)
TRie,,Quattx ON THE PROSECUTION OF THE MEDWAY NAVIGA-
rIPANY V. THE SOUTH-EASTERN RAILWAY COMPANY.
In
thisout
the instance'eeta mandamus had been issued by this Court, at
ntheeerS, or other the Medway Navigation Company, directing
railway
the time astern Company forthwith to cause their engi-
er, agent, to inspect or examine a certain locomo-
tive steam engine belonging to the Medway Company, which
niwa;ythe mandamus was issued was on a siding of the
ale railway
near Tonbridge, and to report thereon to
after
of such report, to the Medway Company a certificate
approvalsh of such engine, pursuant to the provisions of
Act ui,der which the railway was constructed. It ap-
peared by this Act that no locomotive, or other engine, or
?titer description of moving power, should at any time be
approved
upon, or used on the line, unless it should have been
of by the company, and they were require(',
within 14 days after notice to them, by any person de-
sirous of bringing any engine on the railway, to cause their
engineer or other agent to inspect and examine such engine,
1.1,' any place within five miles of the railway, and to report
thereon to the company • and that they, within seven days,
In Case the engine should' be fit and proper t o be used, should
give a certificate to the party of their approval. In their
return to the writ the South• Eastern Company
Maidstone
set forth that, on the passing of the
maidstone branch, the Medway Company obtained power to
Construct sidings, communicating with the main lines of the
branch, for the conveyance of their goods or minerals to
the main line, and that such locomotive power as the South-
Eastern possessed should be used for the conveyance of these
goods and minerals at the usual rates along their line, and
that they had incurred great expense, and afforded every
convenience to the Medway Company for this purpose. The
Medway Company demurred to this return, on the ground of
insufficiency in law, and that the right of having: their goods
so carried did not destroy the right of the Medway Company
to have a te tificate of approval of the engine in question.
The case now came on for argument in the usual form.
Mr. ALEXANDER. had been heard at great length on behalf
of the railway company. He contended that the return
was sufficient, and that the allegations in the mandamus
were not maintainable, inasmuch as they were too large and
general.
Mr. M. CHAMBERS was now heard in support of the writ.
He said as the return did not state that the engine was an
unfit one, it followed that they must assume that it was a
proses engine, and that it was incumbent upon the rail-
way company to direct their engineer to furnish them with
a certificate of the fitness of the engine, and that the
Medway Company should be furnished by the railway com-
pany with a certificate of approval. The 153 d section of
their Act, the one out of which ttie proceedings arose, dis-
tinctly enacted that the company should grant a certi•
fieate of approval if tile engine was found to be a fit and
proper one. The approval of the company was required in
order that they might be prevented from solely depending
upon their erg,neer, and from his supplying them, either
through carelessne s or design, with a false or capricious
report. He admitted that the engineer was a proper person
to make such a report, and that the company would be per-
fectly justified in saying, if he presented an unfavourable
report, tl:at the engine should not run on their line. It was
established as a fact that the engine in this case was a fit
and proper one, and that the Medway Company had adopted
the proper course, in order to run it on the line. In accord-
ance with the terms of the Act, the public might run an en-
gine over the line,' provided it was a fit one. The legal
construction of the Act, he contended, was that all parties
should not only have the power of running carriages,
but locomotives along a railway—in point of fact, using the
railway as a public highway. The mandamus could not be
too large or general, inasmuch as both the engineer's report
and the approval of the company must be obtained. Then
again, the word " approved' did not mean that an engine
might be rejected on frivolous grounds. If the engineer sent
in a report stating that the engine was unfit, whilst the
contrary was the case, the company was bound to give the
required certificate of approval, as the Act did not make
them entirely dependent upon the engineer, whose opinion
might be biassed.
Lord DENMAN said the Court could not help saying that
the Act made a very imperfect provision for inquiring into
the capacity of an engine. Some other officer than the en-
gineer should have been named, but the Court could not
construct a new Act to meet this particular case. The man-
damus should have directed a report. If a company refused
to do that which the Act required, an action would lie for
maliciously refusing to perform the conditions the Act re-
quired.
Mr. Justice PATTESON said the Act foolishly enacted
that engines and carriages might be run on certain condi-
tions, but it was merely inferential, as it did not say that
they might be run.
Mr. CHAMBERS held that all railways were nothing but
public highways, on which carriages of a certain description
might be run on certain conditions, and if he established
this right, the public might run locomotives along *such
lines with as much right as they now took aheocrseseato-f
at-
tached to a carriage along a common road. In
th
Vie King v. The Severn and Wye (2d Barnewell any Alder-
son) Chief Justice Holroyd stated distinctly that a rail-
way was nothing more nor less than a public highway, and
that persons using a certain mode of a carriage migt use
it en paying toll.
Mr. Justice Corxitincx said he had no doubt that a
railway was a highway under certain restrictions.
Mr, Julie.: Parrzson said, by the 128th section the com-
pany was empowered to provide locomotive power and car-
riages, but they were not commanded. In a case reported
in ex-parte Dowling's cases, a mandamus was applied for
t, compel a railway company to convey the goods of a
carrier along their line, as this Act did not compel them to
carry all goods. The application was refused. The ques-
ten was an important one, as all railway Acts were simi-
larly worded. He submitted that his clients had a right to
run their engine on the line, and hoped the Court would
compel the company to allow it to be run, without driving
there to try their right of action.
DENMAN said all railways were public roads,
112 the Acts under which they were constructed
gave the public certain rights over them, but it did
not follow that all consequences which attached to
Public roads must attach to railways. One of these
coahnirstrigeqiunenees would be that an one of the public might run '
any carries-es lie pleased. Hey thought it would be very
tot' hold out that any person might bring an engine
and work it over a line at his
own pleasure. Now the Act he
thought had provided proper security against the results,
which might abase by athe improper use of such a power—
"ally, th certificate of the engineer and the approval of
tile company. The mandamus called upon the company to
grant their certificate nod their approval before the engineer
had granted
writ which ntetlhis,inopposition to the spirit of the Act ; there-
fere o
calledfitanupon him to grant his certificate
that the engine was a
_examined it, was cieariy bad.
proper one, without his having
the other Judges agreed with
the Chief P STTFSON andustice, and that the mandamus as it stood was too
• Justice
large.
lhe mandamus was accordingly discharged.