The Sun.
London, England, 1847-11-09 00:00:00

THE

referred to several decisions on this point, and among
others to the case of Ward v. the Society of Attorneys,
1 Cole,where it was held that a single;dissentient mem-
ber might prevent an incorporated society from
surrendering its charter. But even if the Act thus
done by the directors had been within the scope of
their authority, the statutes of mortmain would
necessitate an application to Parliament to enable the
Great Western to hold the land they had contracted
to purchase. The aid of the Legislature, however,
was, independently of that point, necessary to com-
plete the performance of the contract; and if so, how
could this Court enforce a specific performance ? If
the Court is to make such a decree, let it be consi-
dered how the contract is to be performed. The first
thing to be done is to amalgamate the two railway
companies; that could only be effected by the Legis-
lature ; and the Court must therefore decree that the
defendants shall apply to Parliament for an Act for
this purpose. Was there any precedent or authority
for such a decree ?

. His HONOUR, after observing that there were two
Acts, one of which authorised the Great Western to
purchase the Birmingham and Oxford Railway, and
the other authorised the said body to purchase the
Birmingham, Wolverhampton, and Dudley line, asked
whether the contract in question might not be consi-
dered as two separate contracts for those two separate
purposes ?
Sir F. KELLY admitted that two contracts might
well exist on one paper ; but the present agreement
was not for two distinct sales, but for the atnalga-
'nation of two railways, and the sale of the amalga-
mated lines. By the 69th section of the private
Act of the Birmingham and Oxford Company, it was
enacted that it should be lawful to that company,
with the consent of three-fifths of the shareholders,
to sell their line to the Great Western Company, and
that, on the completion of the purchase, the two com-
panies should thenceforth be amalgamated. There
was also power in another Act to enable the Birming-
ham, Wolverhampton, and Dudley Railway Company
to sell their railway to the Great Western, but there
existed no enactment authorising the amalgamation
of the Birmingham and Oxford and the Birmingham
and Dudley lines. With respect to the decree
now asked, however, if the contract could not be
performed without an Act of Parliament, such an
Act must be obtained; but would a court of
equity interfere with the constitutional rights of
the subject so far as to compel persons to petition for
an Act contrary to their own wishes, or to abstain
from petitioning against it ? Before the Court would
decree the specific performance of the contract, it
would, at least, be satisfied that it could be performed ;
but it was notorious that, do what the Court and
directors would, an Act would not be obtained. The
facts of the case were these :—There being an Act of
Parliament empowering the Birmingham and Oxford
Company to sell their e:.;lway to the Great Western,
they had entered into an agreement to amalgamate
with the Birmingham and Dudley Company, and
then to sell the amalgamated railways to the Great
Western. At that time there was no Act authorising
the sale of the Birmingham and Dudley to the Great
Western. Two Bills were accordingly brought into
Parliament, one to authorise the sale, and the other
to effect the amalgamation. The former passed, and
the sale was authorised, subject to two conditions,
neither of which, he observed by the way, had been
performed. The Bill for the amalgamation, however,
was lost in the House of Lords, because it was not
submitted, after its introduction, to the share-
holders, and approved by three-fifths of their
number. The plaintiffs, by their bill in equity,
stated that the Bill in Parliament had been promoted
in accordance with the agreement, thus admitting
that the directors of the Birmingham and Oxford
Company ht.d supported the Bill. It was, in fact,
opposed only by some of the shareholders. The
standing orders of the House of Lords require the
consent of three-fifths of the shareholders to the Bill;
without that consent an Act cannot be obtained from
the Legislature; and that consent cannot be obtained
in the present state of the companies ; 35,000 out or
the 50,000 shares into which the capital is limited
being in the hands of persons avowedly hostile to the
amalgamation. If the Court, then, decree a specific
performance, it must first order the company to
petition Parliament for an Act, and, secondly, order
three-fifths of the shareholders to give their consent
to the Bill after it is brought in. The prayer of the
Bill is silent on this point ; it does not suggest how
the Court is to proceed to enforce the performance of
the agreement, but merely prays that it may be per-
formed. It goes on, indeed, to ask that in the mean-
time the defendants may be declared trustees of their
railway for the Great Western ; but how long is this
state of things to last ? Are they to continue trustees
from year to year, from session to session, until three•
fifths of the shareholders give their concurrence to
the projected act ? It is impossible for the Court to
make such a decree ad interiui,lwhen it cannot compel
the performance of the compact itself. The plaintiffs
are not now in a condition to ask for such a perform-
ance, for the very Act which empowers the Birmingham
,Ind Wolverhampton and Dudley Company to sell,
declares, by the 25th section, that it shall not be law-
ful for that company to transfer their rail way until it
shall be proved to the satisfaction of the Railway
Commissioners that one-half of the capital has been
raised by the Great Western for the purchase, and a
certificate to that effect be obtained from the Railway
Commissioners. This certificate, then, must be ob-
tained before the purchase is completed ; the Bill
does not state that it has been obtained; it must,
therefore, be assumed that it has not, and consequently
the Great Western cannot at present insist on the pur-
chase. There is also this further objection. The original
Act which authorised the sale of the Birmingham and
Oxford line, enacted that no lease or sale should take
effect unless and until the maximum tolls of the Great
Western are reduced in the manner therein mentioned,
which could only be done by the authority of Parlia-
ment. Last year another Act was passed, which
provides that the tolls shall he reduced as soon as the
transfer of the line has taken place, consequently the
tolls have not been reduced, and until they are, the
former Act prohibits a sale Of lease of the line. Fur-
ther, the contract sought to be enforced is void, even
if the directors had authority in the first instance to
enter into it, because it has not been properly con-
firmed. The 8 Vic., c. 16 (the Companies' Clauses
Consolidation Act), directs that no matters shall be
transacted at any ordinary meeting unless special
notice of such matters shall have been given in the
advertisement convening the meeting; that no extra-
ordinary meeting shall enter upon any business not
set forth in the notice upon which it shall have been
convened, and that every notice of an ordinary or ex-
traordinary meeting shall specify the purpose for
which it is called. Now, the Bill states that a
meeting was called to consider the expediency
of effecting an amalgamation, not that it was
summoned to consider this contract, which had then
been entered into. Immediately after the agree-
ment was approved of by the directors, an extraor-
ordinary meeting was convened by a notice, stating
that it was called " for the purpose of considering,
and if approved of by the meeting, ratifying an
agreement entered into by the governing bodies, for
the sale to the Great Western of the undertakings of
the Birmingham, and the Birmingham, Wolver-
hampton, and Dudley lines." Here the notice was
clearly insufficient; it did not mention that amalga-
mation, and therefore any ratification by a meeting so
convened was a nullity.
Mr. J. Parker, Mr. Bacon, and Mr. Willcock fol-
lowed on the same side, and their arguments engaged
the attention of the court during the remainder of
the day.

(Before Vice-Chancellor KNIGHT BRUCE.)

HASLEM V. ROSS.

The bill in this case was filed by the plaintiff
against Mr. M. N. Ross, of Astley Hall, in the
county of Lancaster. Its object was to obtain the
possession of certain hereditatnents, which had been
in the family since the year 1783. The bill stated
that Adam Mort, by his will, dated 1830, gave all his
landed estates to two persons in fee simple, and that
in the year 1833, one of these two devisees charged
his estates with the payment of debts, and died, leav-
ing the plaintiff his heir-at-law. To this the de-
fendant had put in a general demurrer.
His HONOUR allowed the demurrer.
(Before Vice-Chancellor WicaAm.)
CARLISLE V. ELLIOTT.

The facts of this case were reported in this journal
of Monday. The plaintiff, the trustee of Queen
Elizabeth's Hospital at Bristol, applied for the com-
mittal of the defendant for a breach of an injunction
which forbade his quarrying in an adjoining close
called the Jew's-acre, so as to injure the hospital.
His Honour this morning said that if the acts com-
plained of had been done by the complainant himself
he would clearly have been guilty of a breach of the
injunction, and the only question on a motion for his
committal would have been quo animo the acts had
been done; and he did not think that the fact that the
acts had been done in this case by the defendant's
l os sneteruo,l
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Adams,inn
ng ttthe o
hri
eccoups led with the defendant's own can-
uct, altered the case. He had licensed Adams to
quarry
ands,at
while
eh
nevertheless,at
he acts dretained
hine
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tpowerstood
dwereb f
y
withucommitted. The only redeeming point in the defen-
/lainst'isifoanvoouurr
thenwas hdisieotate,rato repair the injury done.
plaintiff'
s7oolff the order
which he should make, theth purport of which was that
(whichf had
the defendant should pay the
been ordered to be paid in July last) wthitehinoshteosuorfdatyhes
from the date of the order, and also
present and the former motions, and thatc
also pay the costs incurred by reason of the d'ahinouawld
which had arisen from Adams' act. His Honoure
also referred it to the Master to fix a line beyond
which the defendant should not be at liberty to carry
his works, and ordered thatuntiltha
fortytlinewas
yardsdeter-
mined upon, he should not work within
the walls of the hospital.

COURT OF QUEEN'S BENCH, Mt!. 8.
HOPS AND RATS.-WRIGHT V. HUMPHREY.

This was an action to recover compensation in da-
mages for injury sustained to several bags of
hops by rats. Mr. Baron Parke tried the case at
Maidstone, and the jury returned a verdict for the
plaintiff, damages 601.
It appeared by the declaration that the defendant,
who is a warehouseman, had undertaken to warehouse
and safely deliver over to the plaintiff a quantity of
hops, which were assigned to his care. They were
handed over, but it was found that a number of
rats and mice had played sad havoc with them
while under defendant's care. It therefore became a
question for the decision of the jury, whether the
mice had or had not got into the hops before they were
consigned to the custody of the defendant ; such a
thing, it appeared not being uncommon. A witness
at the trial deposed that he weekly turned over the
hops, and that every care, by having cats and traps,
was taken to entrap mice and rats, showing that
every care had been taken of the hops. But a witness,
who was rather prone to exaggerate, deposed
that he slept in the warehouse, and could not say that
proper care was taken of the hops, as rats came forth
in shoals and traversed his prostrate body, and on one
o( casion he awoke and found a rat's tail in his mouth,
which in his precipitation he bit off and swallowed.—
(Laughter.)
Mr. MONTAGUE CHAMBERS moved for a rule nisi,
on the ground of misdirection, and that the verdict
was against the evidence.
The COURT deferred its decision until the Learned
Judge had been consulted.

COURT OF COMMON PLEAS, Nov. 8.

FIERAIND V. LEAF.

In this case, which was tried before Mr. Justice
Coltman, and in which the verdict was for defendant,
Mr. Sergeant &TEE moved for a rule for a new
trial, on the ground of misdirection, and also that the
verdict was against evidence. This action was brought
to recover the sum of 1121. 19s. for literary articles,
supplied to The Foreign, Colonial, or New Quarterly
Review, of which the defendant was a proprietor. It
appeared that it was originally started in March,
1843, and that certain resolutions were agreed to
respecting the mode in which it should be conducted.
One of them was that Dr. Worthington should be
appointed editor, and that a committee of six proprie-
tors should be formed to assist him in promoting the
circulation of the work, and obtaining as far as pos-
sible, without expense, literary contributions for it,
but not to interfere with the editorial departrne nt.
Mr. Powell, one of the committee, introduced the
plaintiff to Dr. Worthington, as a contributor, and
several articles written by him were inserted, for
which he was paid at the rate of 81. per sheet. Sub-
sequently, however, he wrote an article on the
philosophy of Descartes, which did not accord with
the sentiments of the editor, and it was refused, with
an intimation that no articles from the same
writer would be published in the Review.
The plaintiff, however, continued to write, and
handed his papers to Mr. Powell, and they were
inserted as usual, and the present action was brought
to recover the amount due from him. The principal
question upon which he based his application was as
to whether the articles were supplied gratuitously.
Mr. Powell stated at the trial, on the part of the
plaintiff, that the contributions were received, on the
understanding that they were to be paid for. Dr.
Worthington, on the other hand, stated that his im-
pression was that they were supplied gratuitously by
Mr. Powell, and that he did not know that they were
the productions of the plaintiff, otherwise he should
not have admitted them. The Judge, in summing
up, left it for the jury to say—first, whether they
believed the articles were supplied gratuitously ; and
secondly, whether the name of the author had been
fraudulently concealed from the editor, and if he
would have rejected them had he known that they
were Mr. Ileraud's. The jury then asked whether
any proprietor could contract for articles without the
consent of the editor, to which the Judge replied in
the negative. The Learned Sergeant new argued
that the words in the resolution, to the effect that the
committee should, " as far as possible endeavour to
obtain articles gratuitously," gave Mr. Powell an
authority to contract for articles to be paid for. He
also argued that Mr. Heraud was not liable for any
concealment on the part of Mr. Powell, in not making
the writer's name known. The editor had received
the articles, and carefully considered and altered them
previous to publication, and he submitted that all the
proprietors were liable for the amount due to the
plaintiff, at the rate of 81. per sheet.
The Court, after considerable deliberation, deferred
their decision until to-morrow.

COURT OF EXCHEQUER, Nov.B.
(Sittings in Banco.)
BURNSIDE V. DAYRELL.
This action was tried before the Lord Chief Baron
during the sittings in London after last term, when
the verdict passed for the plaintiff, with 421. damages.
Mr. CROWDEE, pursuant to leave reserved to the
defendant at the trial, now moved for a rule calling
on the plaintiff to show cause why the verdict should
not be set aside and a nonsuit entered. The defendant
was sued as chairman of the provisional committee
of the projected Direct Manchester, Leeds, and
York Railway, for the recovery of a sum of
money paid by the plaintiff as deposits on a
number of shares applied for by, and allotted to him,
in that scheme. The scheme was abandoned, and at
the trial of the cause it appeared that the defendant
never acted on behalf of the concern subsequent to
this allotment, but had attended one meeting only, at
which he protested against the whole of the proceed-
ings. He had, however, imprudently allowed his
name to stand in the prospectus as chairman of the
committees. The question now concerned in the
case was simply as to the party with whom the con-
tract was made. On that point the evidence was, that
applications for allotments were sent in to the pro-
visional committee, but that the managing committee
finally made the allotment. The Learned Counsel
thereupon contended that there was no contract with
his client, as he was not a member of the managing
committee. The argument on the other side was,
that the contract was made with the whole body of
members, and delivered to the plaintiff by their
secretary, whose evidence was rejected.
The LORD CHIEF BARON said, he was of opinion
thst the secretary's evidence was inadmissible, unless
it was supported by the authority of the board in the
several matters it referred to. He thought, there-
fore, that there should be a rule nisi.
Mr. MARTIN afterwards moved for a new trial, on
the ground of the rejection of the secretary's evi-
dence.
After a long discussion, in which it was endea-
voured to bring the cross rule before the Court, at the
same time as the rule for the nonsuit, by engrafting
it upon the latter, it was finally arranged that the
defendant should take a rule nisi for a nonsuit ; and
that, in the event of its being made absolute, the
plaintiff might take a rule nisi for a new trial.
Rule nisi accordingly.
POTEZ V. GLOSSOP.
In this case Mr. COCKBURN moved for a rule nisi
to set aside the verdict for the plaintiff for the sum
of 1001., on the ground of improper rejection of evi-
dence, and misdirection of the Learned Judge who
tried the case.
The action was heard before the Lord Chief Baron
at the Middlesex sittings, and was on an assumpsit
upon two hills of exchange for the sum of 2501., pay-
able four months after date, and bearing date Aug.
29, 1846.
The facts of the case, as shown by the evidence
upon the trial, were the following :—A person of the
name of Gardiner was in the habit of carrying on
business as a bill-discounter, under the name of
Rutter and Co. The place of business occupied by
him was in Fludyer-street, at premises for which he
paid a certain sum for the use of during the day.
Advertisements were inserted in the news-
papers by Gardiner, offering to advance money
in sums not exceeding 2,000/. upon personal
security at very moderate interest,. The defendant
was a clergyman, and was induced in consequence of
these advertisements to apply for money upon the
terms stated. A correspondence ensued upon the
subject, and subsequently the two bills of exchange
which form the subject of this action were ac-
cepted by the defendant and given to Gardiner
Repeated applications were made for the money,
to be advanced upon the bills, but was repeatedly put
off. On the 11th of September a person of the name
of Coyle obtained the sum of 1001. upon one of those
bills from another person of the name of Gadderer,
who, subsequently, took the bills to a Laurence Levy,
' who discounted them. A person of the name of Jones
shortly after obtained possession ;of the bills.
The action was now brought by a Miss Potez,
for the purpose of recovering from the defendant, the
acceptor of the bill, the sum of 5001., which she
stated she had advanced to Gadderer for the same.
The name of Miss Potez did not, however, appear
upon either of the bills. A verdict passed at the trial
for the plaintiff for the sum of 1001.
On the part of the defendant a large number of
pleas were placed upon the record, averring that the
bills were obtained by him through fraud and eosin,
and that the plaintiff had knowledge of the same, and
certain letters were proposed to be put in from
Gardiner to Glossop, with a view of showing that
Gadderer was aware of the purpose for which the
acceptances had been given. The Lord Chief Baron
refused to receive them as evidence, and it was
now contended that in so ruling his Lordship had im-
properly rejected important evidence, and upon this
ground the verdict ought to be set aside.
The COURT granted a rule upon this ground, con-
sidering that the evidence was admissible ; and also
upon
the ground of misdirection of the Learned
Judge.

A decree of the Prussian Government forbids all
workmen, of whatever trade they may be, to proceed to
S witserland, under pain of fine and imprisonment.