The Sun.
London, England, 1847-01-28 00:00:00

COURT OF QUEEN'S BENCH, Jan. 27

THE QUEEN ON THE PROSECUTION OF THE MEDWAY NAVIGA-
TION COMPANY V. THE SOUTII-EASTERN RAILWAY COMPANY.
In this case a mandamus had been issued by this Court, at
the instance of the Medway Navigation Company, directing
the South-Eastern Company forthwith to cause their engi-
neer, or other agent, to inspect or examine a certain locomo-
tive steam-engine belonging to the Medway Company, which
at the time the mandamus was issued was on a siding of the
railway near Tonbridge, and to report thereon to
the railway company, and to give, within seven days
after such report, to the Medway Company a certificate
of approval of such engine, pursuant to the provisions of
the Act under which the railway was constructed. It ap-
peared by this Act that no locomotive, or other engine, or
other description of moving power, should at any time be
brought upon, or used on the line, unless it should have been
approved of by the company, and they were required,
within 14 days after notice to them, by any person de-
sirous of bringing any engine en the railway, to cause their
engineer or other agent to inspect and examine such engine,
at 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 to be used, should
give a certificate to the party of their approval. In their
return to the writ the South. Eastern Company
simply 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 far 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 certificate of approval of the engine in question.
The case now came on for argument in the usual form.
Mr. ALEXANDBR 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
proper 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 the proceedings arose, dis-
tinctly enacted that the company should grant a certi•
ficate of approval if the 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 engineer, and from his supplying them, either
through carelessness 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, that 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, wai 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 Derimax 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 P.ATTESON 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 a horse at-
tached to a carriage along a common road. In the case of
the King v. The Severn and Wye (2d Barnewell and 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 might use
it en paying toll.
Mr. Justice COLERIDGE said he had no doubt that a
railway was a highway under certain restrictions.
Mr. Justice PArrEsore 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
to 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-
tion 'eras 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
them to try their right of action.

Lord Die.:!cur said all railways were public roads,
as 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
consequences would be that any one of the public might run
any carriages he pleased. He thought it would be very
alarming to 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 a proper security against the results,
-which might ensue by the improper use of such a power—
namely, the certificate of the engineer and the approval of
the company. The mandamus called upon the company to
grant their certificate and their approval before the engineer
had granted his, in opposition to the spirit of the Act ; there-
fore the writ which called upon him to grant his certificate
that the engine was' a fit and proper one, without his having
examined it, was clearly bad.
Mr. Justice PAItESON and the other Judges agreed with
the Chief Justice, and that the mandamus as it stood was too
large.
The mandamus was accordingly discharged.

BAIL COURT, Jan. 27.
BANKES V. NEWrON.

Mr. Justice Erie proceeded to give judgment in this case
this morning.
The facts of the case were, that Mr. Newton, a barrister,
had beecme indebted to Mr. Bankes in the sum of 41. for
groceries, and in consequence of the non-payment of the
money Mr. Bankes sued Mr. Newton in the Sheriffs' Court,
and obtained a verdict in his favour. Mr. Newton after-
wards applied for a rule nisi for a new trial, on the ground
that the clerk of the plaintiff's attorney had, during the
absence of Mr. Newton, represented the cause as undefended,
and consequently the cause was taken, and a verdict obtained.
He also applied on the ground that there was a competent
court to dispose of debts under 51. in the district in which
he (Mr. Newton) resided, at Wandsworth. On these grounds
the rule was granted.
Mr. Hoggins yesterday showed cause against the rule. He
urged, that when the debt was contracted the defendant's
offices were in Manchester-buildings, while his house was at
Wandsworth. Neither had he objected when the writ was
served,

Mr. Justice ERLE, in giving judgment, remarked, that after
what had been shown on the other side, it appeared to
him that the two grounds on which the rule had been ob-
tained did not materially bear upon the case, and, therefore,
under all the circumstances, the Court thought it better to
discharge the rule.

COURT OF COMMON PLEAS, Jan. 27.

TIIE EAST INDIA STEAM-SHIP COMPANY.-SCOTI AND

ANOTHER V. BERKELEY.

Mr. GREENWOOD appeared in this case, which was part
heard, ih 'support of the plaintiff's right to recover the sum
of 21,600/. from the Hon. Craven Berkeley, M.P., as a direc-
tor of the East India Steam-ship Company, now defunct.
The action was brought by Messrs. Scott, Sinclair and Co.,
the extensive ship-builders of Greenock, to recover
the sum named as the balance of an account
due for building a steamer for the said company.
The proceedings which were taken resulted in j adgment being
signed against the defendant. Before execution was issued
objection was taken as to the liability of the defendant, and
after some discussion it was mutually agreed to turn the
matter into a special case for the opinion of the Court, as to
whether, in September, 1843, when judgment was signed, the
defendant was a member or director of the company.
All the arguments adduced, which were entirely of a tech.
nical and legal character, were directed to this matter.
The COURT decided the point in favour of the defendant.
The other cases argued were demurrers of no interest ex-
cept to the parties concerned.

SECONDARIES' COURT, Jan. 27.
ESDAILE AND OTHERS V. MTH.
This was an action brought to recover the sum of 51,3881.
on a guarantee.
The defendant suffered judgment to go by default.
The plaintiffs are bankers, and it was understood the de-
fendant is a gentleman at York, but it did not transpire either
in the address to the jury, or in the course of the evidence, in
whose behalf or on what ground the guarantee was given,
but it appeared that 28,6661. odd was upon overdue bills of
exchange and interest, and the remainder the balance of a
banking account, and twelve months' interest at five per cent,
Mr. Walls, a clerk to Messrs. Roy, the plaintiff's solici-
tor was called to prove the calculation of the interest, and
also that the defendant had admitted the correctness of the
account.
The Learned SECONDARY asked in what manner the ad-
mission was made.
The witness said he had gone through the account with
Mr. Bond, of York, the defendant's attorney, who had
signed the admission.
The bills and admission were then put in, but not read or
handed to the jury.
The Learned SECONDARY said the defendant did not appear,
but there did not seem to be any reason to doubt the correct-
ness of the claim.
The jury gave a verdict for the full amount claimed.
The remainder of the morning was occupied in hearing a
case for work done, but which was not of the slightest interest.

SHERIFFS' COURT, Jan. 26.
(Before Mr. Under-Sberiff Buncuu.L. )
STOCKER V. SPINETTO.
The plaintiff sought compensation in damages against the
defendant for criminal conversation with his wife. Judg-
Melit Yr"
"I'4 to go by defaults and a writ of inquiry