The Sun.
London, England, 1844-04-22 00:00:00

LAW INTELLIGENCE.
VICE-CHANCELLOR'S COURT April 20.

THE GREAT WESTERN RAILWAY V. THE BIRMINGHAM
AND GLOUCESTER RAILWAY. ,

His HoNouß gave judgment in this case, which
was part heard during the vacation, and the argu-
ment in which was continued during the two first days
of the present term. The circumstances were these :
—That under a variety of railway Acts the plaintiffs
were entitled, on or before the month of June, 1845,
to repurchase a moiety of the shares in a certain
tram-road between Gloucester and Cheltenham, for
the sum of 17,5001., after deducting the dividends,
which the defendants should in the meantime receive
from the tram-road, and they were also, on or before
the same time, entitled to purchase that half of the
Gloucester and Cheltenham Railway which lay next
Cheltenham. That if they should repurchase they
and the defendants would become joint tenants of the
tram-road, and each would become the owner of a
half of the railway. The defendants, the Birming-
ham and Gloucester Railway Company, had con-
structed
a portion of their railway on this tram-road,
up to the terminus at the basin of the canal, and the,
plaintiffs complained that they had thereby altered
the character of the road, and had prejudiced the
dividends, which would affect the interests of the
plaintiffs in case they repurchased the road.
The VICE-CHANCELLOR, in giving judgment, said
the case of the rival railways stood in this manner :
that the Birmingham and Gloucester Railway Com-
pany were entitled to the tram-road in ques-
tion, subject to the right of repurchase, which
might be exercised by the Great Western Railway,
which right had been derived by means of having
purchased the interest which the Gloucester and
Cheltenham Union Railway had in it. The Great
Western Railway had filed this bill for an injunction
to restrain the defendants from laying down rails for
the purpose mentioned; his Honour thought the plain-
tiffs, although their statement was short, had made that
statement with much clearness and truth. He did
not think the mode in which the case had been stated
was unfair, but the question was, how far their case
was established by the legal right they possessed?
When it was first brought forward, his Honour thought
the thing complained of went to the destruction of the
tram-road itself, and he therefore granted the injunc-
tion ; but it appeared the point was, how far the de-
fendants were justified in doing what they
had done under the terms of the original
Act, by which the tram-road was to be
made and maintained. If they were justified
in doing this under the Tram-road Act, then they
could not be prevented merely because difficulty
might hereafter arise as to the reduction to be made
in the dividends, in case the Great Western Railway
Company thought fit to exercise their power of re-
purchasing. They certainly had a right to re-pur-
chase, but it was not certain yet that they would do
so. In ascertaining what was the amount of reduc-
tion to be made, this Court would have power to take
care the Great Western Railway should not suffer.
There might, perhaps, be relief in the way of com-
pensation, but for that the time had not yet arrived,
and it was useless to speculate upon the fact whether
they would re-purchase or not. The question now
was, whether there was evidence on the affidavits of
an illegal dealing with the tram-road, either in the
shape of waste or destruction, so as to induce this
Court to interfere. It was stated, first, that the de-
fendants intended to break up the tram-road, and
dig up the soil, and remove the rails, and
also that parts of the stone upon which
the rails are laid have been cut away, so
as to endanger the safety of the tram-road ; but, on
the other hand, there were affidavits contradicting
' this altogether, stating that the new rails were laid
down quite independently of the old tram-road, and
the stones had only been cut away at the top in order
to leave a smooth surface for the new rails without
endangering the safety of the old rails. On due con-
sideration of the affidavits respecting waste and de-
struction, his Honour's opinion had been removed,
and he did not think anything had been done which
would interfere with the proper existence of the tram-
way in its original state, and he therefore could not
interfere. The Birmingham and Gloucester Railway
Company were the absolute owners in equity of the
tram-road, and great powers were given- by the Act
to the owners of the tram-road. On the fullest con-
sideration, his Honour's opinion was, that the Court
was not authorised to continue the injunction, and as
it turned out, lie thought the injunction had been im-
properly granted. Ile must, therefore, dissolve it,
with casts.

COURT OF QUEEN'S BENCH, April2o.
THE QUEEN V. THE INHABITANTS OF LEEDS.

There had been an appeal against an order of two
justices, by which a mother and her children were
removed from Leeds to another parish. The
sessions discharged the order, subject to the opinion
of this Court, as to whether the consent of the wife
to a separation from her husband should have been
stated in the examination.

Mr. Buss and Mr. STAPLETON now submitted that
the mother and children could not be separated from
the husband and father without the consent of
the wife and mother; for it had been decided that it
was against public policy and good morals to separate
a husband and his wife ; and it was further pressed
that the husband and wife could not be separated,
even with their consent; and there being nothing in
the examination of the husband touching the wife and
children, it was informal.
Mr. PASIILEY and Mr. HALL admitted that it was ,
true the examination of the husband adverted only
to his settlement; but it was the complaint which de-
termined the subject of inquiry. The question be- '
fore the justices would be shown by the complaint.
The examination was a ministerial, and not a judicial,
act. Where nothing else was shown the mother's
maiden settlement must prevail. No doubt it had
been supposed that the consent of the husband alone
was sufficient to the separation. Here there was no
proof that the wife had not consented. The order
was good as to two of the children, because they were
above the age of 19, though of tender years; there-
fore, if the-mother ought to continue her maternal
care over them she must accompany them. In one
case the overseers had intended to send the husband
to Scotland, and the wife to-a parish in England, and
it was one of those cases of hardship which sometimes
drew lectures from the Bench, which might scarcely
be correct in point of law; but there was no such
hardship in the present case, and the wife having been
examined immediately after the husband, and not dis-
senting from the separation, it must he presumed that
L. wish was the same as her husband's. A party
remaining silent under such circumstances must be
assumed to consent. _ _ _

The CouRT took time for consideration.
INNES V. BOUCHER AND OTHERS.

The present action was brought for an assault and
battery by the plaintiff, who was a member of the
Caledonian Society, at Radley's Hotel, New Bridge-
street, Blackfriars, against the defendant, to recover
compensation from him. It appeared that the plain-
tiff had claimed a right to sit at a particular part of
the room at one of the meetings of the society, upon
which a dispute arose, and one of the defendants al-
leged that the plaintiff had used threats of personal
violence, and the matter being brought before the
committee for regulating the affairs of the society, it
was resolved that the plaintiff should no longer con-
tinue a member. It would then appear that on the
9th of November this resolution was submitted to a
general meeting of the society, by which the reso-
lution was confirmed. Many objections were taken
by the plaintiff to the competency of the meeting, that
he baknot had notice of it, and that only one of the
members present had paid up his subscription. The
case was tried before Lord Denman, and a verdict
for the plaintiff was returned with 40s. damages.
Mr. ERLE was instructed to move for a rule to
show cause why there should not be a new trial, on
the ground that the plaintiff had no right to remain a
member.—Rule granted.

COURT OF EXCHEQUER, April 20.
EEDUCTION.-MARLAY V. DEWING.

This was an action by the plaintiff to recover com-
pensation in damages for the injury he had sustained
by means of the seduction of his daughter by the
defendant.
Mr. Martin, with whom was Mr. Bovill, conducted
the case for the plaintiff; and Mr. Jervis, Mr. Cock-
burn, and Mr. Bramwell appeared for the defendant.
Mr. Martin said this was one of these extremely
painful cases wherein a father was compelled to appeal
to a jury of his country for compensation—if, indeed,
money could be considered a compensation—for the
debauchment of his daughter. The plaintiff had been
a Lieutenant-Colonel in her Majesty's Marines, but
had retired from the service on a pension. He had
been married twice, but from some circumstances,
into which it was not his duty upon the present
oc-
casiontHime,e,thsteeortetelfneedrteear,olvnat
had separated from the second wife.
aftergochhesigthoußet wroxbiothurnheie daughter,forashort
who was even now not
heeighteen years of age, as his
servant, because she hadn might
say
housekeeper. Indeed,that she was his
other help than the occa-
sional assistance of a charwooman to do the more dirty
work of the house. Of course
sehof her duties was
to go to market and to the various shops ind the village
ni
with
this
the
for the domestic purposes, and it
occupation that she first became acquaienteiw
defendant. The Learned Counsel then entered into
a detail of the transaction, as stated in the following
evidence :
Mary Ann Marlay—l am the daughter of the
plaintiff, who was Lieutenant-Colonel in the Marines.
I shall be eighteen next November. I live with my
father at Cheshunt, to which place we went in Ja-
nuary, 1843. He had before lived at Broxbourne, only
three months at that place ; but before that my father
lived in Wilton-place, where he had been about twelve
months. I was during that time at school at Grove
House, Walthamstow. I left school in 1842, towards
the end of the year. After that I went with my father
to live at Cheshunt and Broxbourne. We were