The Sun.
London, England, 1841-11-15 00:00:00

MOUNSEY V. BURNHAM.

In this cause the bill was filed by the Rev. Thomas
:lounsey, who is the vicar of the parish of Outhorn, in
Yorkshire, against Robert Barnham, a farmer, occupying
lands within the parish. By the bill, the plaintiff claimed
tithes of clover and hay for the farm in question.
The hearing of this cause had terminated at. the rising
of the Court. His Honour postponed his judgment.
The Court closed at three o'clock.

COURT OF QUEEN'S BENCH, Nor. 13.

THE QUEEN V. THE EASTERN COUNTIES RAILWAY
COMPANY.

Mr. BUTT said this was a mandamus directed to the
Eastern Counties Railway Company, and calling upon
them to summon a Jury and assess compensation for the
damage and injury done to the land of the prosecutor,
John Collinridge. The writ recited that the prosecutor
had a leasehold for a lag period of certain land and pre-
mises which adjoined a public highway or road, called
the Bath Field-road--that the defendants, in order
to carry their railway over the said road, had
altered it by lowering the road to such a
depth in 'front of the land of the prosecutor,
that it had been thereby greatly damaged and
injured, and that he had been obliged to
make additional fences and lower a part of the lend in
order to the beneficial occupation and enjoyment of the
same. To that mandamus there was a return which set
out that the land of the prosecutor was not a part of the
land required for the purposes of the railway ; that the
land was not entered upon by the Company, tam
taken, nor used by them, nor was it in their
schedules, and that Collinridge was not the owner
of any land taken by the Company, or over which
the railway ran. The return, therefore, raised
the question of whether a party was entitled to compen-
tion for injury where the Company had not actually cut
into, or taken, or used, any part of the land in question.
Now he submitted to the Court, that, clearly within the
meaning of the Act ofParliament, Mr. Collinridge was en-
titled to compensation. In the first place the return was
no answer to the mandamus, because if the Company
were entitled to rely on the statement that no damage
had been done to the land, they should have stated
that fact in order that it might be traversed. They
merely state in a few words, that they have not taken, or
used, or gone upon the land of the prosecutor. The
Act under which the Company was incorporated was
the 6th and 7th Wm. 4th, chap. 106, and the sections
which referred to the awarding compensation were the
)th and the 29th. The Act empowered the Company in
'.he usual way to enter upon and take land for the pur-
poses of the railway, and by the 29th section they were.
in every case in which the land was damaged or-injuri-
ously affected, to grant to the owners or lessees com-
pensation. There were two cases in which compensa-
tion was to be awarded—first, in the case in which the
land was taken; and, secondly, where the land was not
taken, but injuriously affected. The Learned Counsel,
having read the clauses awardingcompensation, referred to
the cases of the Queen v. the Nottingham Water Works
Company, the King v. the Commissioners of the Thames
and Isis Navigation, and the King v. the Exeter Improve-
ment Company, which last, he contended, was strictly
analogous to the case before the Court. There the Com-
missioners had power to lower a road or high- way, and
the inhabitants of the houses on either side were obliged
to build steps in order to obtain access, and claimed corn-
pensation, which the Commissioners refused. The case came
before the Court of Queen's Bench on a mandamus, and their
Lordships were of opinion that the houses having been
injuriously affected the owners were entitled to compen-
sation. Now he submitted that that came not only
within the spirit but the very letter of the present Act,
and that the prosecutor was entitled to compensation.
The SOLICITOR-GENERAL for the defendants, contended
that under the present Act the party applying for the
mandamus was not entitled to compensation. He would
not dispute the decisions that had been come to in the
several cases cited by his Learned Friend, but
the compensation awarded therein turned upon the
particular clauses inserted for that purpose in
these several Acts. Indeed, the very fact of these
clauses having been introduced, showed that under the
ordinary compensation clauses they would not be en-
titled. They contained special clauses to give special
damage, but there were no such clauses in the Act under
which the present Company was incorporated. The
question was of the greater importance, because if the
Court was of opinion that the, prosecutor in the present
case was entitled to compensation for the injury he was
alleged to have sustained, there was not an owner of land
along the line of the railway who would not he entitled.
The meaning of the word `• damaged or injuriously affect-
ed," clearly referred to the injury sustained by hind taken
for the purposes of the railway, which was first to be
valued, and then the injury sustained by the placing of
materials or severance was an additional damage for
which the party was entitled to additional compensation.
If the Court should be of opinion that for consequential
damage accruing to a party from the making of the
railway compensation should be awarded, there would
be no end to the matter. A party living five or ten
miles from a railway might complain that he was obliged
to go two or three miles fUrther rotund in order to get
to London, in consequence of the making of the railway,
and claim compensation for consequential damage. Now,
he contended that the principle recognised by the Courts
of Law in all these cases was, that the consequential
and indirect damage to individuals ought not to counter-
balance the benefit to the public at large, and if the rule
did not hold good, no public work could be constructed
in that country.

Mr. BUTT having replied.
The Court took time to consider its judgment

COURT OF EXCHEQUER, or. 13.
POOLE V. PALMER.
This action was tried before Lord Abinger at the
sittings in London, after last term, when a verdict was
found for the plaintiff.
Mr. MESMER, on the part of the defendant, obtained
a rule nisi to set aside such verdict, and for a new
trial. The ease having been called on, his Lord-
ship read over his notes, from which it appeared
that the plaintiff was an auctioneer lately residing in
Bridge-street, Westminster, who was employed to sell
an estate at Norwood, upon which colonel Torrens had
an annuity ; the plaintiff had a written authority to sell,
signed by the defendant, and seven or eight other per-
sons who were interested in the estate. It further ap-
peared that there had been a negotiation between the
parties and the plaintiff for raising the sum of 1,8001. to
pay off the annuity. It was proved that the
plaintiff took all the steps necessary to bring
on a sale. Advertisements were inserted in va-
rious newspapers, the estate - was surveyed and .a- plan
made, and all other preliminaries gone through, when,

some lime before the; day appointed for the sale, the
plaintiff saw an advertisement in the papers, stating that
the same property was to be sold by Messrs. Shuttle-
worth ; he therefore claimed his commission, the same as if
he had actually sold the property. He brought his action
for 1571 10s. but the Jury gave a verdict for only
82 The defence attempted-to be set up at the trial was,
that the authorisation to sell was conditional upon the
plaintiff obtaining an advance of money to pay off the
annuity, and that he having failed to do so, he was not
entitled to recover either for his own trouble, or the ex-
penses to which he had gone. In order to prove his case
the Counsel for the defendant proposed to call a Mr.
Sparshott, who was one of the parties signing the authority
to sell, and proposed to make him a good witness by en-
dorsing his name upon the record. Plaintiff's Counsel
objected to this, and his Lordship holding the objection
valid, refused to allow the witness to be examined.
Mr. PLATT addressed the Court in support of the
verdict, but was interrupted by the rising. of the Court
at one o'clock, in order that the Judges might meet the
ether Judges on Crown cases.

BAIL COURT, Nov 13.
THE QUEEN V. COOPER.--CERTIORARI.

Mr. Sergeant TALFOURD moved for a rule for a cer-
tiorari to remove the indictment in the above cause from
the Borough Sessions of Bridgnorth into this Court. He
made the applicatiqn on behalf of the p 'osecutor, an
attorney residing at Wellington. The indictment had
been preferred against the defendant for publishing a
libel, reflecting on tha professional character of the pro-
secutor, in a newspaper called the Shropshire Conserva-
tive. He Thunded his application on the grounds that the
jurisdiction of the Sessions of the borough of Bridgnorth
was very small; that there was great party feeling in the
borough; that in so small a jurisdiction, it would be
impossible to have a choice of jurors; that it was impos-
sible to secure, a fair and impartial trial.—Application
granted.