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MAY 8, 1847.

RAILWAY INTELLIGENCE.
HOUSE OF COMMONS.—TRURSDAY.
THE BIRMINGHAA AND OXFORD JUNCTION, AND
BIRMINGHAM, WOLVERHAMPTON, AND DUD-
LEY RAILWAYS AMALGAMATION.
The following is the argument of Mr. Cockburn in this
most important case, in support of a locas standi, on the part
of the petitioners against the Bill, and to which we could
only allude last evening, in consequence of the late period at
which the Learned Counsel concluded.
Mr. WHATELEY having addressed the Committee on be-
half of the promoters,
The CHAIRMAN wished to know who were the opposing
parties?
Upon which Mr. COCKBURN rose and said :—Sir,—Some
difficulty has, it appears, arisen as to the rights of certain
parties for whom I have the honour to appear before you. I
have now to make an application on their behalf, and claim
to be heard for them in support of the allegations contained
in their petition. I am prepared to support that application
by numerous precedents, and I am satisfied that from the
facts of the case, as I shall have the honour to bring them
before you, you will say that if there were no precedents this
is a case in which a precedent should be made. I have :lie
honour, Sir, to appear before you on behalf of certain parties,
who are neither more nor less than the great mass. Allow
me for a moment to descend from the prayer of the petition
to the objects sought to be attained by the petitioners. The
petitioners pray that the Bill may not be allowed to be pro-
ceeded with, and they pray to be heard by counsel against
the Bill, and against the clauses, as affecting their interests.
The CHAIRMAN—II is with tha preamble of the Bill that
we have to deal, we have nothing to do with the conduct of
the directors.
Mr. COCKBURN—I really hope that the Committee will
allow me to proceed with my address to the Committee. I
will not put forward a single argument which, when you
have heard me, will not, I think, lead you to the conclusion
that that which I seek to effect on the part of the petitioners
is entirely within the power of this Committee to grant.
Ile preamble of the Bill states, first, that an Act was passed
in the last session of Parliament, called the " Birmingham
and Oxford Junction Railway Act, 1846," by which Act a
company was incorporated for carrying the undertaking
thereby authorised into effect, under the name of the" Bir-
mingham and Oxford Railway Company," and then comes
the important recital to which I beg to call your particular
attention, as it is a part upon which the shareholders are re-
solved to make their stand before this Committee—they
being convinced that justice cannot be done them, or them-
selves protected from, to say the least of it, most flagrant in-
justice.
The Cnainatax—lnjustice to individuals is not part of our
province to inquire into.
Mr. COCKBURN—I trust you will hear what I have to say,
if not I shall not further trouble the Committee. If, Sir,
you have made up your mind not to hear my case, why then
I shall sit down.
The CHAIRMAN—Go on, Mr. Cockburn.
Mr. COCKBURN—Sir, I beg to call your attention to the
recital of that Act. Now I turn to the petition: the peti-
tion states that the recital in the preamble is positively unjust.
And what does it recite? It states to your Honourable
House that it is expedient that the three railways should
be united into one; and the Birmingham and Oxford are
desirous of being united into one with the Birmingham,
Wolverhampton, and Dudley ; and upon this ground they
come forward and require powers to dissolve both companies
and fuse them into one—one destroying altogether the con•
stitution of the essential bodies, dissolving the constitution
and forming a new company out of the two existing corn•
panies. And in order that that could be done it was neces-
sary that the consent of the Birmingham and Oxford Railway
company should be obtained. You cannot when a company
is constituted purchase the right vested in them by their Act
of Parliament, unless by the consent of the shareholders. It
would be a monstrous thing, to use the mildest terms, to take
away that right from them, and appropriating that to some
one else. Then it is essentiallythe very foundation of these
whole proceedings that that part contained in the recital of
the Bill to which I have alluded should first have to be
proved. How then, is it to be proved? Is it to be proved
by ex parte statements ? or if not to be proved by ex parte
statements, how can it be proved except by allowing the
petioners to give evidence upon the subject? But that is not
given ; but, upon the contrary, if all the statements of
the promoters which this Act contains be, received as true
by the Committee, they would evidently be going, if the facts
contained in the allegations of the petition be proved, upon a
false and erroneous position. It is impossible to collect from
the prayer of the petition, which is of the common
form, without looking to the petition itself, the scope which
the petitioners have in view in framing their petition. Nor
can any person see to what that petition relates except the
whole facts and statements contained in the petition are care-
fully considered. In the usual form of presenting petitions,
it is usual to set forth your grievances in the body of the pe-
tition, and then at the end you commonly pray to be heard
by your agents—by your counsel—against the Bill. It is
not necessary, in the prayer of a petition, to recite all the
points of the petition. You state your facts, and then you
pray to be heard against the Bill. That petition begins by
reciting that a Bill is pending now. Now, Sir, I show that
it was quite necessary that the consent of the shareholders
should be received under the Act of Parliament. Let me
pause for a moment,, and turn to the Act incorporating the
Oxford and Birmingham Railway Company. By the 69th
clause of that,Act nrovision ia mad.. t hur stae r--.... or leasing
oe selling the line to the Great Western Company shall not be
enacted unless by consent of three-fifths of the shareholders.
(The clause was here read.) The next section is the 70th,
which makes further provision on the subject. (Clause here
Teed.) These two sections appear in the allegations of the
petitioners to which I have called your attention, and you
will find by and, bye, as we go on, that the sale or lease of
the Birmingham and Oxford to the Great Western Company
has not been approved of (as we are aware the provisions of
the Act require) by three-fifths of the shareholders. A
special general meeting had been assembled for the purpose
of considering the propriety of the transfer of the line to the
Great Western. On the other hand, it was also important
to bear in mind that by the provision contained in the next
clause it is enacted, that in the event of the sale or lease not
taking place, the Great Western Company has the right con-
ferred upon them by their Act to compel the Oxford and
Birmingham Company to convey to them, by what is called
in. Parliamentary language running clauses, by which they
should have the power of running over the line under such
circumstances and regulations as the Board of Trade, or
whatever public department that may be intrusted with the
management of these railways should determine. The
petition then went on to say :—" That a Bill is now pending
before your Honourable House, intituled, ' A Bill for uniting
the Birmingham and Oxford Junction Railway Company and
the Birmingham, Wolverhampton, and Dudley Railway
Company into one company, and for authorising the sale of
the Birmingham, Wolverhampton, and Dudley Railway, and
other new works to the Great Western Railway Company.'
" That your petitioners are shareholders in the Birmingham
and Oxford Junction Railway Company.
"That besides the object of opening a second line of com-
munication from Birmingham and the North of England to
London, by means of the said Birmingham and Oxford
Junction Railway, another main object aimed at by the pro-
moters of such railway was a better communication from
Lancashire and the north, as well as the central parts of
England, to the port of Southampton, for the purpose of
effecting which the line of the Birmingham and Oxford
Junction Railway was so laid out as to join the line of the
Great Junction Railway at the station of the latter at
Birmingham.
"That in the Act of Parliament iccorporating the said
Birmingham and Oxford Junction Railway Company, after
giving powers of sale or lease of the railway to the Great
Western Railway Company, it is expressly provided, that if
the Birmingham and Oxford Junction Railway should not
be purchased or rented by the Great Western Railway Com-
pany, it should be lawful for such company to use the rail-
way, by the said Act authorised, on such terms and subject
to such regulations, and on payment of such rates and tolls
not exceeding the rates and tolls by that Act limited, as
might be agreed upon between the said companies, or in the
event of difference between them, as might be settled by re-
ference to arbitration, the umpire being appointed by the
Board of Trade or other Government board for the time being
intrusted with the supervision of railways" ..
The petitiorrthgn goes on to state " that the Birmingham and
Oxford Junction Company was thus subject to the right of
the Great Western Railway Company to use the line, in any
event as an independent company, and was at full liberty to
receive and .Friake arrangements for the transit over its line
of the traffic of any other company as well as that of the
Great Western Railway Company." That is clearly the ex-
pressed intention of the Legislature. They contemplated by
the passing of this Act that the Great Western Railway
Company should have the .power of purchasing or leasing
this line, and that the shareholders of the Birmingham and
Oxford Railway should have the power of selling their line
to the Great Western Railway Company. Powers were given
in the Act for the one party to sell or to let, and for the other
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parties were left perfectly free, they could
they thought proper, to sell, to buy, to let, or to take, if
they thought proper, or hold the line if they thought proper.
Then, in case no such arrangement was madewith
hte
Great Western Company with respect to the lease or pur-
chase of the line, both parties were left precisely in the same
situation ; a permission was granted to the Companies to do
certain things, but no obligatory power was given to either
parties, either parties were left entirely at liberty to enter or
I not into contracts if they thought proper. The petition
then goes on to state " that, on the 12th day of August,
1846"—I call particular attention to these dates, as they
will be found to be important in the consideration of this
question—" that, on the 12th of August, 1846, the directors
of the said Birmingham and Oxford Junction Railway Com-
pany issued an advertisement, calling on the shareholders to
send in their scrip certificates by the 15th of September then
next, to be exchanged for sealed certificates, and that they
afterwards extended the time for sending in such scrip cer-
tificates until the 24th of October next. That many of the
shareholders in the said Birmingham and Oxford Junc-
tion Railway Company sent in their scrip certificates
accordingly before the end of the month of September, 1846.
That many others of the shareholders sent in their scrip
certificates before the 24th of October, but that no sealed
certificates were issued by the said directors until on or after
the 14th of December, 1846 ;" and I observe here that these
facts and dates will be found to have a material bearing upon
the question with respect to whether the consent of the other
shareholders ever has been given at all to this undertaking.
We say that the petitioners have been prevented from express-
ing their opinions on the subject by the use on the part of the
directors of undue and unfair means, and that the real sense
of the shareholders has never been taken in the affair at all,
and even when the sense of the shareholders was taken it
was found to be decidedly opposed to the course proposed to
be pursued by the directors. They go on to say, " That in
the interval between the sending iu of such scrip certificates
and the issuing, or coming out, of such sealed cer-
tificates, large quantities of shares in the said company
were sold, or contracted to be sold, and according
to the custom of the share market, it was a condition of such
contracts that they should be completed and the purchase-
money paid, on the issue or coming out of the sealed certifi.
tales, until which time the shares remained registered in the
books of the company in the names of the sellers, who alone
could vote in respect thereof at any meeting of the said corn-
-1 pany held before the issuing of such sealed certificates."
Now, Sir, it is possible that Hon. Members who have had
nothing to do with railway shares may not perfectly under-
stand
the meaning of thi
s—if not, allow me to explain it to
the Committee. You are aware that when a party signs thePar-
liame,utary contract, and pays his deposit, he receives what is

called scrip shares, which simply record the fact of the holder
having been a subscriber to the undertaking, and that the
payment of the deposit money has entitled him to the shares
in the company. That scrip, whether legally or not, has often
been parted with from hand to hand, so that perhaps the
party who signed the deed is separated by an interval, not
by the board or provisional committee as before. The direc-
tors their issue an advertisement, calling the parties holding
scrip certificates to bring them .in and receive in exch, age
the sealed certificates of the company, making theta
members of the company, and registering them as
such. At that time the shares are in of twenty,
thirty, or even fifty persons from the party who is
entitled to receive the shares in the company. When the
Act of Incorporation passes, then the directors who continue
in office, till, according to the provisions of the Bill, a general
meeting is called fur the election cf fresh directors, and effect
their title to the interest which they have in the company.
The directors of the compan) issued an advertisement, that
the scrip certificates should be sent in by the 15th Of
September, 1846; that time was afterwards extended to the
middle of October, 1846. The petition, Sir, then goes on to
state as follows:—" That the first general meeting of the
Birmingham and Oxford Junction Railway Company was
held on the 30th of October, 1846, and up to that
time the Great Western Railway Company had made 11
overture whatever to the shareholders, nor, as your peti-
tioners believe, to the directors of the Birmingham and
Oxford Junction Railway Company, for any purchase or lease
of their undertaking. That at such meeting the following reso-
lution was put, namely, ' That as this meeting deem it expedient
that an amalgamation of this company with the Birmingham,
Wolverhampton, and Dudley Railway Company should be
formed, the directors be authorised and requested, in con-
junction with the Birmingham, Wolverhampton, and Dudley
Railway Company, to apply to Parliament in the
next ensuing session for an Act or Acts to
carry such amalgamation into effect, providing in the
said Act for power to lease or sell the two
lines when amalgamated, or any part thereof, to the Great
Western Railway Company, the directors being requested
and authorised at once to negotiate with that com-
pany for some arrangement for that purpose. That
at the said last mentioned meeting— (I beg to call
your particular attention to this fact)— that at the said last
mentioned meeting Mr. Charles Russell, the chairman of the
Great Western Railway Company, being also a director of
the Birmingham and Oxford Junction Railway Company,
was present, and a discussion having arisen on the subject,
it was stated by the said Charles Russell that he was not
prepared to make any overture on the part of the Great
Western Railway Company for the purchase or lease by them
of the Birmingham and Oxford Junction Railway, referring
at the same time to the power of the Great Western Rail-
way Company, under the Birmingham and Oxford Junction
Railway Act, to use the line of the Birmingham and Ox-
ford Junction Railway in any event, and expressing a
strong opinion in favour of the proposed amalgamation
with the Birmingham, Wolverhampton, and Dudley Rail-
way Company." Now, it will be observed that the proposal
made at this meeting was entirely different from that pro-
posed in the Birmingham and Oxford Aet, for the sale or
lease of the line to the Great Western; but it was a proposal
for a totally different thing; it was a proposal for
an amalgamation of the Birmingham and Oxford Junction
Railway with the Birmingham, Wolverhampton, and Dudley
•
Railway, and proposing to unite them both into one line.
But the Birmingham, Wolverhampton, and Dudley Rail-
way was a totally independent and different company from
that of the Oxford and Birmingham Railway Compa_
You will observe this most important fact, that when Mr.
Russell, the chairman of the Great Western Company, was
called upon to say whether or not the Great Western Com-
pany proposed to rent or to purchase the Birmingham and
Oxford Railway, Mr. Russell says—" No; we are not pre-
pared to do that, for it is not necessary to do so; we have
already the power to use you we can use you, whether you
will or not. It is not at all essential to us to purchase a
lease of you ; but I tell you what I will do : if you, the Bir-
mingham and Oxford shareholders, will consent to a dis-
solution of your own company, and an amalgamation of
your company with the Birmingham, Wolverhampton, and
Dudley Railway Company, then we, the Great Western
Company, will be prepared to take you up and
agree to puchase both companies." The share-
holders, as might justly be expected, dissented from the
proposition made to them by Mr. Russell, the Chairman of
the Great Western Company. The petitioners then proceed
to state in their petition " That many of the shareholders of
the Birmingham and Oxford Junction Railway Company
were wholly opposed, and several of those present at the said
last-mentioned meeting expressed themselves as opposed, to
the proposal made at the said meeting for the amalgamation of
the Birmingham and Oxford Junction Railway Company, and
the Birmingham, Wolverhampton and Dudley Railway Com-
pany, and the negotiation then proposed for the sale of the
Birmingham and Oxford Junction Railway to the Great
Western Railway Company, inasmuch as the undertaking
of the Birmingham and Oxford Junction Railway Company
would be more valuable by being in a position to receive
and make terms for the traffic of other lines, and by not
being confined to that of the Great Western Railway Com-
pany alone, and inasmuch as the shares of the Birmingham,
Wolverhampton, and Dudley Railway Company, were of
much less value and at a much lower price in the market,
than those of the Birmingham and Oxford Junction Rail-
way Company. That, notwithstanding the opposition so
made at gash natotl.e yr Luc ova. s,caioer, the sacs resolu-
r.r.prited as aforesaid was pressed by the directors, and
declared to be carried." Now, Sir, I come to a most impor-
tant allegation in the petition, as tending to show that the
consent of the shareholders was not obtained. The petition
states "That the shares of the Birmingham and Oxford
Junction Railway were, and are still, of much greater value
than the shares of the said Birmingham, Wolverhampton
and Dudley Railway Company, and that the shares of the
Birmingham and Oxford Junction Railway Company
• are, in the opinion of your petitioners, worth
considerably more than a premium of 101. ss. per
share. That your petitioners believe that the pro-
posal to amalgamate the same two undertakings was
supported by the directors of the Birmingham and Oxford
Junction Railway Company contrary to the interests of their
proprietors, and because they were, to a great extent, direc-
tors in both such companies, and because three of the
directors of the Great Western Railway Company were also
directors in both such companies. That the interests of the
shareholders in the Birmingham and Oxford Junction
Railway Company, as a separate company, were in conse-
quence attempted to be sacrificed to the interests of the Great
Western and Birmingham, Wolverhampton, and Dudley
Railway Companies. That at the time of the said meeting _
of the 30th of October the directors of the Birmingham
and Oxford Junction Railway Company held large quan-
tities of shares in that company, and in consequence of the
changes which had taken place in the real ownership of large
qnantities of shares in the said company during such interval ,
between the sending in of the scrip certificates and the coming
out of the sealed certificates as afore said,thenumber of bond fide
shareholders in the said company entitled to attend and vote
at the said meeting had become very much reduced." The
petition then goes on to state the various provisions of the
Act, and the agreement entered into by the directors with
the Great Western Railway Company to the six articles of
which I beg to call your particular attention, more especially
to the sixth article in the agreement. I will now read to the
Committee the general terms of an agreement entered into
between the directors of the Birmingham and Oxford Rail-
way Company, and of the said two lines by the Great Western
Railway Company :
" Ist. The capital of the Birmingham and Oxford and Bir-
mingham, Wolverhampton, and Dudley Companies to be
considered as amalgamated, and taken at 1,700,0001.
" 2d. The Great Western Railway Company agree to pur-
chase the said two undertakings by payment of 10/. ss.
premium on each share of 201., the said premium to become
payable within six months after the completion and opening
of the lines. The Great Western Railway Company are to
be subject to any liabilities necessary for the completion of
the said lines, and for the purchase of the Stratford-upon-
Avon Canal, over and above the same capital.
"3d. That if the railways shall not have been completed by
the Ist, of January, 1850, the premium of 101.55. per share
shall be considered due on the Ist of July, 1850, to those
proprietors who have duly paid up the amount of their calls,
and who have not been in arrear at any time for three
months, interest being paid half-yearly at the rate of five
per cent. per annum on the said premium of 101. 55., from
the Ist of July, 1850, until the said premium shall become
payable as hereinbefore provided. The Great Western Br; ,
way Company may require the opening of any portion of the
line previous to the completion of the whole of the works
being executed, in which case the premium of 10i. Se. shall
become due and payable within six months after such partial
opening in the same =saner as if the whole line had been
completed.
"4th. Interest at the rate of five instead of four per cent.
per annum to be allowed to the proprietors of the said com-
pany upon all calls duly paid during the construction of the
lines, and in respect of any sums paid in anticipation of calls,
interest at the rate of four per cent. per annum shall be al-
lowed on so much as is advanced until it shall have been
called up, when five per cent. per annum will become pay-
able; coupons:to be given by the Great Western Railway
Company when the 201. share shall have been paid up or
advanced, entitling the holder to the premium of 101. 55.,
and interest upon the terms hereinbefore provided.
"sth. That any further capital required for the purpose of
the said companies shall be provided by the Great Western
Railway Company, either by creation of shares or otherwise,
as may be sanctioned by Parliament.
6th. The Birmingham and Oxford and Birmingham, Wol-
verhampton, and Dudley Companies are to be amalgamated,
and powers taken for laying the broad as well as the narrow
gauge thereon, and an arrangement is to be made for blend-
ing the Great Western board with the directors of the amal-
gamated company in such manner as to give the Great
Western Railway Company an effectual control over the
expenditure of the said undertaking."
Now the petition: goes on to allege; this important point—
namely, that such an agreement was not within the powers
of the Act of Parliament by which the Birmingham and
Oxford Company had been incorporated, and that it was a
violation of the powers conferred by such Act on the directors
the
of the company. With respect to that there cannot be
slightest shadow of a doubt that the Act which constituted
the Birmingham and Oxford Railway is an Act to form a
company to construct a railway between Oxford and Bir-
mingham. This claim, therefore, made by the directors
to carry out that which was the very essence—that
the shareholders should be consenting parties—had
been totally disregarded. The proposal was to amalgamate
the Birmingham, Wolverhampton, and Dudley Railway
Company with the Birmingham and Oxford Railway Com-
pany. ow the Birmingham and Oxford shareholders say
this—they say it is not fair upon us that the Great 'Western
Railway Company do not choose to purchase us, and give us
those terms which the value of our shares in the market co
•
title us to expect. The Great Western Railway has, it is
true, offered to purchase us, provided we became fused with
the Birmingham, Wolverhampton, and Dudley Rwaoi liNvvear).:
Company. Now the shares of the Birmingham,
hampton, and Dudley Cempany are not so valuable as our
shares. They are lower in the market, and the consequence
of the fusion or amalgamationto of the two lines will be that
of bringing the shares mean value, equivalent to the
premium to which the respective companies are entitled, and
the effect will be a loss and great sacrifice on our part, be-
, cause that, whereas we can get 15 per cent. for our shares,
if we are amalgamated with the Birmingham, Wolverhamp-
ton, and Dudley Railway Company, we shall only get a
something for our: shares equivalent to the mean valise of
the shares of the two companies. The petition then goes on
to state, " That certain of the shareholders of the Birming-
ham and Oxford Junction Railway Company, who had at
the same meeting, of the 30th October, dissented from the
proposal of amalgamation then made,
be-
tween the said 12th of November and the en
became aware,d
of
that month, of the said agreeement of the 12th_
Of November; they entered into a communication with