The Sun.
London, England, 1842-01-19 00:00:00

ROLLS' COURT-(THIS DAY.)

,WRIGHT V. MAUNDER.
the'rhiS case was instituted for the purpose of compelling
bth,Pti'L romance of a contract upon the defendant, for the
'iv-114'1'1(14e of, a certain estate belonging to an insolvent, to
zont the defendants were assignees. The property in
estion had been put up to sale, with the provision on
~,!Patt of the assignees, that a reserved bidding should be
17e4u.,,e tbr the said property of 323/, but at the sale, this
trait was not adhered to by the vendor, and a con-
1, ter was entered into between the plaintiff and the
er, conveying the property to him for
.the sum of
of: This suit, therefore, was instituted for the purpose
c+TlnPelling that contract, although it was. contended
gal "e, part of the defendant, that the provisions of the
t9lld not been complied with. -
"Is LORDSMIP decided in favour- of-. the plaintiff,. the
e°'ls to come out of the estate of the assignees, although
a
th vmmutton had been passed by the assignees amongst
enaselves this could not be binding on the plaintiffi

VICE-CHANCERY.—(THIS.DAY.)
Lou (Before Vice-Chancellor KNIGHT BancE.)
1) Mayoa OF LONDON V. COOMBE—EXCHEQUER CAUSE.
L.4„11 this cause the Lord Mayor and the Corporation of
8714°11, the commonalty, citizens, and certain other per-
ni.'; Bill embers of the Company or Fellowship of Porters
un.
""-ungsate, were the 131aintiffs, and Mr. Harvey
the
--‘'unibe and Co., brewers, of castle-street, Long-acre, in
,eounty of Middlesex, defendants.
The counsel engaged were, for the plaintiffs, the Soli-
deitiJ-General, Mr. Spence, Mr. Richards, and Mr. Ran-
Apkbason
Por the defendants, the Attorney-General, Mr.
and Mr. James.
deeThe bill prayed that it might be declared, by a
t ree
01„ of the Court, that the exclusive right of por-
-haegre and carriage of all corn, grain, salt, and
articles landedfrom or carried into any vessel
1L...411in the port of London, or delivered and conveyed
th",n, any such vessel to any pla.ce. within the limits
hateir Pull, was vested in the plaintiffs, to be exercised in
behalf and for their benefit ; that an account
might be taken of all the malt belonging to the defen-
dants which had been landed by workmen not members
,i°f, the Fellowship Porters, at the Savoy Wharf, in Mid-
dlesex ; and thit an account' might be taken. of the sums
Illorley due to the Fellowship of Porters, in respect of
rt-ti:eh malt landed and delivered. The bill stated that the
,aty of
. .
London was a very ancient city, and that its
foi,izzleonse were incorporated time out of mind, and were
qnd(pally long period possessed_ of exclusive rights
Prrilleges, which had been from time to time con-'
Hued by Charter and Acts of Parliament ; that the
Ttterage of' all coals, corn, and other grain, merchan-
li'se, &c., brought into the port of London, or going out
it hy- the river Tharnes, in any barge or vessel what-
vr or delivered or remaining on the banks of that
PoPtiver, Within the limits of the port of London (which
rt extended from Staines Bridge, in the county of
iddie sex, to Yenland, alias Yendele, in Kent), be-
tellged to the plaintiffs, and that those rights sare
tkecuted by the corn and salt porters, freemen of the city,
‘,4tecrtain rates of wages ; that by. an act of the Common
`-aericil of the Corporation, made in the 18th year of the
I.cgtl.lilpeof James the First, the corn and salt porters were
1,,e0r °rat d into one company, to be called by the name.
" ePorters of Billingsgate"—that no person having
(1Z: &c., to unload within the limits of the port of Lou-
th was accustomed to do so without giving notice at
ee °Sae of the Portres of their intention to so unload,
4(.„ (tad upon the receipt of such a notice that
load tPetent number of porters attended to un-
'4ltai s'
be,--that the Fellowship consists of three thou-
"d th—,i'surls, all freemen of the City of London,
Porter, k, from time immemorial, certain rates of
the 'le, earria..e, metage, &c., were received by
Jorter..
; that. the defendants were in the habit of
plkee;g•tout of vessels from Hertfordshire and otherh
Cosm-t,' uY means of hired workmen not belonging to the
severftjnY of Porters, large quantities of 1
to htiaL,Porters had been present when thele. defendants
were were Id malt, and had offered their services, whichfth
in h tQinsed• The amount of rates were also set or
t e L,,,
rUS(,..d
,bill, which the defendants, on being applied to, re
kr. Pay.
'413%4 "A3IEB, for the defendant,.
ts.tvaete:.li that their
(4 the %Without disputing the res 1 ht and title
Ity of London to be considereder an ancient. and
the e-,,"
;4e, &c., denied the right of the Corporation to
chin• of porterage on merchandize landed,
1114 ; they denied that the right- of porterage
easy ecn from time immemorial exercised by the Coin. -
Nal ot. from
that they believed that such a right did
)*°n4 thin the City of London; but did not extend be-
Auld •"e
W limits of the City nor to private wharfs; that if
, ould greatly restrict the trade of her Majesty's
; they believed that the porters had exercised a
Iltahle'ahned to some extent of late, but that it is an
"1' eta
and one of modern date. The defendants also
thaja,:eu that many persons having corn and other mer-
in vessels coming to bedelivered within the Port
lv°t,-"a, not only have been permitted to unload, without
acis; notice, as mentioned in the bill, but also that
tire. Persons had unloaded the same without giving no-
neY also believed that when such notice was
,f a aumber of persons belonging to:the ellowship
‘lilieAurters were accustomed to attend, but they
1/tirss' that the practice of giving notice was
tilerd °Y any traders, except throh ignorance
al• ian-,,°11,01 fear of the power of the Corporation of
_
Mrt,71.1 lalie answer went on" to state that the rates of
urh ,4 "ore not reasonable, and that at private wharves
be -taltses had been refused and successfully resisted ;
defendants took the Savoy wharf, which
d° Duchy of Lancaster, and which
"as "ot within the limits of the City of Lon-.
tlity .4tal which wharf was their private property ,
after
the that on two occasions in the year 1833,
aye r y
had commenced using the private wharf, they
t thielptise tc, the meters appointed by the. Corporation
ears, le intention to land malt, and requiring them.
)411(1%. and measure the same. The defendants did so,h
aw to the impression that they were bound r
ealPloy those meters, and to have such ma t
ilttqte,,d, but they did not require it to be me.a-
~tti th ,or their own USN They never gave. notice
het
Pellowship Porters to attend at their wharf.
tvortors having received notice from the meters, came
car ‘,vharf on the above occasions, and claimed the right
•iaand porterage, and on these two occasions they
ttrs der
he porters. Th defendants alleged that the pt.)r-
Si *ere incoPinpeten't and inefficient men compared witli
11 ;jinn workmen, and that the rate of wages charged
NiCllorters was a hundred per cent, higher than that
_
litiv`° their workmen ; and the defendants had aecord
11 B.ilee these two occasions employed hired labourers.
rt Loci malt manufactured by the defendants was
hY them in bulk; but that the malt
.purc ase
'e ki• li,„—• `,On those two occasions above-mentioned, was
eerat ro by the meters. They admitted that
anti the since the year 1833 '_,aaaiT„ themselves at the wharf, and interfered withthe
qefeo_ of goods thereon; and that in consequencet the
rcants had put up a notice directing them o b
kita eSI as trespassers. Several other statements were
the defendants' answer, setting forth the exorbi-
_ litanses if
the rate of porterage claimed.
4tse 1-"°l3'R observed that there must be a very clear
tktiareade out on one side or the other, to enable him to
th° question
without sending it to a Court of
'the e
SA
''°I,ICITOR-GENERAL said, that the question in-
ct,7,l the present case had been in effect already
by the Courts of Law, and cited the case of Zac-
Postin V• Wiltshire, Strange's Reports, as soye-
b- his view also the cases of Milbouin
Afteter, and Layburne v, Crisp.
),c)llhothr a;_ilung discussion between the Counsel engaged
it "ef rc, Ls'ues as to why the cause should not be brougnt
the Courts of Law on action rather than issue,
iightas tagreed eventually that the plaintiffs had not a clear
m his i)obtain a decree directing an action.
tee it confirmed that view of the case, and de
sa ms Ira, an issue as to the custom claimed in the
Tuneup,t the bill ; secondly, an issue to the
aes,
third ect, leaving out the term measurage ;
!and fourth issues referred to the reasonable-
kid t,.' the amount charged for porterage, carriage, &e.,
Arid r decree further ordered that if the Jury should
Nvs, "at the sums set forth in the third and fourth issues
Knot of reasonable amount, that they should find
'ibert-tta a reasonable amount, and the Judge
to be at
/t.,!. to advise any special matter.
the neat \ fixed that the trial should take place at
at Winchester Summer Assizes.
(Before Vice-Chancellor Wroaam.)
The }!tsLoP V. THE BANK OF ENGLAND.
blll in this case was filed for the purpose of having
titi:tioaordureetitttaekdebnyof the estate of the late Dr. Hislop. It
the Counsel for the
.plaintiff that the
died insolvent, the bill was dismissed with costs.
)11,. tx NEW APPOINTMENTS OF QUEEN'S COUNSEL.
1/11 • ergus, mr
Walk
Iri,iitieinyotn M Parker, and Mr.
"ell, took their seatse in the bar.

&T e Chevalier Bunsen, Prussian Minister on a
hoveeuse- ial Mission, left his residence iu Carlton-
to pterrace, yesterday morning, for Ostend,
his Sovereign on his way to this country.

QUEEN'S BENCH.-(THIS DAY.)

TILE QUEEN V. THE LONDON AND SOUTHAMPTON RAIL-
WAY COMPANY.

This was an appeal against an order of Sessions, im-
posing a certain rate upon that portion of the defendants'
railway, which passed through the parish of Mitchin-
L Bever, in Hampshire, between Winchester and South-
ampton.
Mr. M. D. Him, now appeared on behalf of the de-
fendants, and submitted that the rate was excessive, the
Sessions having made the rate not only, upon the tolls,
but they also added something on the principle of taking
into consideration the advantages the Company enjoyed
from carrying passengers and goods. Now the Sessions
had found that the actual earnings of the Company
were less than the proportionate earnings of that por-
tion of the line which passed through the parish in
question, but they had shown no grounds for resorting
to these proportionate earnings as the measure of the
rate,. it being only resorted to when there was no means
of ascertaining the definite proportion of' the actual
earnings, He contended that the whole of the profits
on which the rate could be made was the sum which
a tenant would pay, after making the necessary deduc-
tions for the support _ and maintenance of the line
It would be necessary to consider what the nature and
object of the Railway Acts were, before ascertaining
what were the hereditaments which were liable to a rate.
The Act recognised the establishment of a statutable
highway, which was to be permanent, and to.be used by
the public at their pleasure on complying with certain
conditions. These conditions embraced the payment of
certain tolls, which were not to exceed a certain sum per
mile. There was also a set of provisions regarding the
management and control of the railway, which the Le-
gislature had placed in the hands of the Company, sup-
posing very properly that the parties who. had embarked
a large capital in the undertaking, would be most likely
to conduct it in such a way as would conduce to the com-
fort and convenience of the public, and their own inte-
rests. A power, however, had since been given to the
Board of Trade to give or withhold their assent, as they
thought proper, 'to the regulations made by the Com-
pany. The Company had also a power conferred upon
them by their Act, of carrying on the trade of
carriers, which they could not undertake without such
a power. It was contended, on the other side,
that the effect of the Railway Act was to establish
a monopoly, but they had not shown even if there was a
monopoly, that that was any ground for increasing the
rate. The assertion that the Company was liable to
abuse -its powers and establish a monopoly, would not
constitute a good ground for laying on an additional rate.
The respondent parish contended that not only had they
a right to lay a rate on the basis of the tolls alone, but
also that the advantage which a lessee of the railway
might be expected to derive from his lease'hy supplying
power, and carrying upon it, must be taken into account.
If a lessee (they said) was capable of deriving all the
profits which now accrued to the Company from the con-
veyance of goods, cattle, and passengers, such lessee pay-
ing all the expenses incidental to the working of the
railway, then the profit of the whole line might be taken
for the purposes of the rate at 70,0001. per annum at
least, after making all the necessary deductions. The
effect of that statement was that, if by, virtue of a person
becoming the tenant of the railway, he became entitled
by the expending of capital necessary to produce that
effect to all the profits derived by the Company as carriers,
something more than the tolls levied should then be rated,
But a party becoming a lessee did not oust the Company
—he did not touch. the Company's right to run their
carriages and locomotive engines. •
Mr. Justice PATTESON—There is no power to lease
anything but the tolls. The Company may carry people
intheir own carriages, but it does not authorise the Corn
pany or their lessee to do so.

- Mr. HILL said the proposition therefore was clearly
one which could not be maintained. In the case of the
King v. Cook, which was a case in which the Crown
granted a patent to the ancestor of Lord Lovell, to estab-
lish a light-house at Dungeness, the patentee was
authorised to levy a toll upon all vessels passing within
a certain distance. In that case, it was held by Mr.
Justice Bailey, that the privilege of levying the toll was
not to be taken into consideration in estimating the
value of the freehold for the purposes of a rate. The
Learned Counsel referred to various authorities bearing
upoii ilie'queStion, for the purpose of showing that the
profit's'. of- theiliandertaking were never included in the
rate. The profils of carrying goods and passengers, were
the profits of their -trade, as in the case of the Duke of
Bridgewater's' Canal and were not rateable. The tolls
conttitutettlihe 'pia& of the land, as the tonnage was the
profit of the land in the case of a canal, and was the
only sum upon which the rate was to be estimated. The
Learned COUnsel concluded by submitting that'the' rate
in the present case was clearly excessive, and The order
of sessionsiought to be quashed.
Mr. KELLY followed on the same side.
(The case was proceeding when we went to Press.)