The Sun.
London, England, 1840-06-10 00:00:00

ROLLS' COURT.—('r Is DAY.)

ROBERTSON V. CRAINFORD.-01:DGUENT.)
The MASTER of the ROLLS gave judgment in this case,
which was argued on Saturday last, and which came before
the Court upon exceptions to the Master's Report. •
The facts of the case were these:—ls 1815 the plain-
tiff, Harriett Robertson, then Harriett Bourchier, the widow
of a civil servant of the East India Company, belonging to
the presidency of Bombay, became entitled to a pension
during her widowhood cut of the Bombay Civil Fund.
On the sth of June, 1828, it was resolved by the sub-
scribers to the fund, theit the pension enjoyed by the widow
of any member should not be discontinued on her being
married. On this resolution being communicated to Mrs.
Robertson, she stated 't was her intention to avail herself
of it, and she sent to the defendant, the agent of the trus-
tees of the fund, a copy of a certificate or marriage b.:-
tween the plaint'ffs, Captain and Mrs. Robertson, on the
s'll March 1536; and in the same paper the parties
were stated to have been re-matried, having been pre-
viously irregularly married. This reference to a prior
marriage, stated to be irregular, induced the trusters of
the fund to inquire when such previ;,:us marriage took
place. If it took place previous to the stli of June, 1828,
the pension payable to Mrs. Bourchier during her widow-
hood ceased. Na satisfactory answer being given to the
inquiries made by the trustees, they continued to refuse
payment. Mr. and Mrs. Robertson then filed their bill
against the trustees to comps! payment, and, on the cause
coining before the Court, a reference was directed to the
Master to inquire whether a valid marriage was contracted
previous to the sth of June, 1828, The Master found
there was not, and the question now came before the Court
upon exceptions taken by the trustees to the Master's
Report.

Nis LORDSHIP observed that if a marriage took place on
the sth of March, 1830, the circumstances under which it
did take place had been greatly misrepresented by Mr.
and Mrs. Robertson, and the certificate of marriage ap-
peared to have been a mere invention. The sanction of an
oath to so gross a fiction as that appeared to his Lordship
to have been, necessarily injured the credit of the guilty
parties. It appeared to his Lordship that Mr. and Mrs.
Robertson formed an illicit connection, and went to Scot-
land in 1818 or 1819; that they cohabited there, and per.
mitted themselves to be called" Mr. and Mrs. Robertson,"
and were by several persons considered to be married, but
that Mrs. Robertson half-yearly made a solemn declaration
that she was not married ; and their conduct was so equi-
vocal that though some persons there considered them to
to be married, several considered them not to be married.
From the beginning of this connection, Mr. and Mrs. Ro-
bertson is ere desirous of preserving the pension which
was payable only to her during her widowhood—they
were also desirous of preserving their reputation. Widow-
hood was the title of the pensionmarriage was the title to
respect in society. There could be only a title to one, the
parties desired to have both, and so, whatever the fact
was, there was constant misrepresentation. To the de-
fendants there was a periodical declaration of widowhood,
in the society in which they lived there was an appearance
of marriage. It was in the midst of that miserable equi-
vocation and degrading deception that his Lordship had
had to collect the evidence to ascertain, if possible, the r, al
fact, and on the whole he thought the evidence preponde-
rated in favour of the master's finding. It seemed to him
more probable that persons who had a strong desire to
preserve the pension, and whose notions of virtue arid mo-
rality d d not preserve them from the illicit connexion
they formed, would trust to such contingencies as circum-
stances afforded for acquiring and maintaining, with.ut
just title, some respect in society, than that they would act
virtuously and morally in their personal connexion. Oa
the whole, his Lordship thought the evidence showed
that though the parties . cohabited in such a manner
as to create a repute, by which marriage might be
in-
inferred, they did so fur appearance only, and without
any notion that a marriage was established. The opinion
his Lordship had read, with the consent of the parties,
informed him that mere appearance in the world and ha.
bit and repute would not make a marriage by the law of
Scotland, if it could be considered a contract of marriage
had not been formed between the parties. Considering
the mode in which the connection between the parties was
formed—the notions of morality which they appeared to
have entertained—their interest to preserve the pension—
the equivocal circumstances under which they appeared in
Scotland to several persons who had made affidavits—and
the periodical declarations made en oa:h by Mrs. Robert-
son, which would expose her to punishment if false,
his Lordship thought the title to the money was that
which they preserved valid, and that they were
content to rest upon appearances only for any claim for
consideration in society. Their whole life seemed to have
been passed with the view of maintaining an appearance in
society without losing their title to the pension.• It could
hardly be doubted that when the certificate of the sth
March, 18:10, was fabricated, the expressions that bad
given rise to this litigation were inserted with a view to
persuade some persons there had been a marriage during
the whole time of cohabitation. Nothing could be said
in any way to excuse or palliate the conduct Mr. and Mrs.
Robertson had pursued ; but it was his Lordship's duty to
adjudicate on the civil rights of the parties, and he thought
the Master had rightly determined the parties were not
married before the sth of June, 1838.

The except;on was therefore overruled, but withou
costs. The trustees to take back their deposit, and ti
have their costs as between party and party.

COURT OF QUEEN's BENCH.

(TIII~ DAY.)

(Sittings tn 13anco.)

THE QUEEN V. TILE EASTERN COUNTIES RAILWAY COMPANY.
In this case a manc'a mus had been obtained, calling upon
the Eastern Counties Railway Company to finish their
railway, and carry it on to Norwich and Yarmouth,
in accordance with the provisions of the Act of Par-
liament. On the faith of its being so continued,.
several inhabitants a Norwich and other parts of
the county of Norfolk had become subscribers to
the railway, but the Company had determined that they
would not carry their railroad be;ond Colchester, in Es-
sex. The return to the mandamus set out as a reason for
not completing the railroad on to Norwich, that they only
had 9,8921. in band, a sum totally inadequate to purchase
the property necessary for the comeletion of the railroad.
The ATTORNEY-GENERAL agreed that this was not a
good return to the mandamus, and that a peremptory
mandamus must issue to compel them to complete the
work. It did not lie in the Company's mouth to say that
their funds were not sufficient. They had a ba
lance of their capital of 1,600,0001. to be raised
yet, and they bad, morever, a power of bor-
rowing 533,0001. on mortgage. Having this power, how
could they say they had not funds sufficient to complete
the work, when they had not raised one-half the money
they had the power of raising. Even if the return had
been that they had expended all the money they had the
power of raising they were bound to complete the railway,
and not to break their contract with the public.
Sir W. Foeeete contended that the return was a good
return. The Company had no means of raising money
which they had net before raised, and then rn,king the
mandamus absolute would only be raising greater ob-
stacles to the raising the money. The mandamus, if
made peremptory, would call upon the Company to com-
plete the railroad, whether they had funds to enable them
to do so or not. Could a mandamus compel people to
subscribe ? In all Acts of this description, certain parties
were authorised to make the road ; but the Act was not
Imperative on them to do so. The return was in substance
that the money in hand, together with the whole of the
money they were entitled to raise, would be insufficient to
complete the railroad. How, then, could the Learned
Attorney-General contend that it did not lie with them
to say that the funds were insufficient? He contended
that they were perfectly competent to abandon the line
without an Act of Parliament, and quoted the Act of the
Company in support of his views. If the Act were
imperative, an indictment would lie against the
Company, but he submitted that the Act was
not imperative, and was never intended by the Le-
gislature to be so. The parties were bound only
to pay the money they had subscribed, whereas if this
mandamus were made absolute, they would be bound to
pay all such further sums as might be necessary to com-
plete the work. They were merely empowered, not com-
manded. to undertake the railway. With regard to the
power of borrowing, the Legislature had restricted that to
the sum of 533,000/., and they would be doing an illegal
act if they attempted to borrow more. By a section of the
Act it was enacted, that if the Company did not
purchase the land necessary for the railroad, before the
expiration of two years, that then the compulsory powers
should cease. Now, it could never be contended that it
was imperative on the Company to complete the road when
any proprietor of the land might prevent them. It was
true that the Legislature had subsequently enlarged the
period, but it' the Legislature had not done so, would the
Court have granted the mandamus? Their Lordships, if
they grlnted a mandamus, would be proceeding upon to
tally different grounda to the Court of Chancery for
if the Lord-Chancellor were; Elatisge4 that any
Company had not sufficient funds to complete their works
the Lord Chancellor would issue his injunction to prevent
their proceeding with them. Their Lordships could not
grant this mandamus. The Learned Gentleman quoted in
support of his opinion the case of the King v. the Br-
mingham Navigation Company, in Blackstone's Reports,
in which, under circumstances nearly similar, the
Court had refused a mandamus, lie therefore sub-
mitted that these parties had a right to exercise
their discretion as to the completion of their works,
and as he had shown that they had it not in their power
to do it, he submitted the (~;otirt ele:d not issue the num-
damus. The mandamus itself was defective, as it did not
recite that the moneys had been paid up, nor set forth
that any unreasonable delay had taken place, and he sub-
mitted it must be quaelied Nppn its iestifficie.ecy, and he
submitted, moreover, that the return to the mindal us was
a comic:to ,iuswer to it.

Cau.Ev. UT, in the absence of the Attorney- Genc-
ral, rep'ied, and contended that tt Act tans not perm 4.,
sive but imperative, that it in fact said to the Company
you ii;ugt either take all or leave all.