either in cases where the practicability or the intention of completing the whole work may reasonably be doubted, or in cases where there may be a reasonable doubt whether the injunction of this Court may not possibly interfere with the execution of the powers conferred by act of parliament, or destroy a reasonable hope that the powers still existing may be exercised according to the intentions of parliament. But I must consider myself bound to exercise the equitable jurisdiction of this Court if it sufficiently appears that the powers still existing in the company are intended and are about to be exercised contrary to the intentions of parliament, or contrary to the conditions on which the shareholders must be deemed to have subscribed their capital. I have considered the cases relating to this subject, and particularly the cases of Agar v. the Regent's Canal Company (12), Blakemore v. Glamorganshire Canal Company (13), Lee v. Milner, Salmon v. Randall and The Queen v. the Eastern Counties Railway Company, and if I were informed by the defendants that they (having or expecting to obtain the means of constructing the whole line from Epsom to Portsmouth) were now applying, or intending to apply the capital raised for constructing the whole line, in and for the construction of a part, with a view to the whole, namely, of that particular part which extends from Epsom to Leatherhead, as a necessary part of, and conducive to the whole, and for the purpose of making and completing the whole line, which may and is intended to be completed under the powers now vested in the company; my opinion is that I ought not to interfere, but if the company now decline, or are unable to state distinctly that such is the case, I think that under the present circumstances, and on the application of the plaintiff, it is my duty to prevent that which I must consider to be an intended misapplication of the subscribed capital of the company. The act of parliament for making the Direct London and Portsmouth Railway received the royal assent on the 26th of (12) 1 Swanst. 250, cited. (13) 1 Myl. & K. 164; s. c. 2 Law J. Rep. (N.s.) Chanc. 95. June 1846. No part of the railway has yet been formed, and in the early part of 1848 the directors made an application, which was referred to the Commissioners of Railways, to extend the powers of the company for the compulsory purchase of lands for two years beyond the period for which such powers had been given to the company. In this state of things the company have lately been active in making preparations for the construction of that part of the whole line which extends from Epsom to Leatherhead. It is truly said to be the duty of the defendants to construct the whole line from Epsom to Portsmouth; and the plaintiff, a shareholder in the company, objecting to the construction of a part only instead of the whole line,-to the performance of a part only instead of the whole of the conditions on which he subscribed for and became entitled to his shares,-asks the interference of this Court, and by his bill he has distinctly alleged, and in his affidavit has sworn to his belief, that the defendants intend to stop at Leatherhead, having no means or intention of going on to Portsmouth; and he insists that it was no part of the conditions on which he became a shareholder, that the capital, or any part of the capital, of which he is a shareholder, should be applied in the construction of a railway from Epsom to Leatherhead only. What is the answer? No statement is made that the company has or expects to obtain the means of constructing the whole line, or now intends to apply the capital or funds which have been subscribed for the whole line, in or towards the completing the whole line. But Mr. Parsons states very distinctly how much has been done in preparing for the construction of the road from Epsom to Leatherhead, and also states some things from which, though it is not distinctly stated, it is (as I collect from a subsequent part of the affidavit) meant to be suggested, that something has been done which may in some way contribute towards the construction of parts of the line between Leatherhead and Portsmouth. Mr. Parsons also states that, in his opinion, it is at this time quite practicable to take and purchase such lands between Leatherhead and Portsmouth as would be necessary for the purpose of the undertaking, if the whole line were to be formed. It is difficult not to infer from this mode of expression that Mr. Parsons does not think that the whole line is to be formed. Mr. Wilkinson states his opinion to be that the formation of the whole line would be a great public benefit; and he says that neither the company, nor the directors, have ever determined not to make the railway from Epsom to Portsmouth, although from the circumstances of the times, and financial considerations, it has not been possible to proceed in or towards the making, otherwise than as before stated by Mr. Parsons, meaning, as I understand it, further than in making preparations for constructing the railway from Epsom to Leatherhead, and doing the other acts mentioned by Mr. Parsons, to which I have referred. He then states that the construction of the railway to the extent and in the manner in which it is now proposed to be constructed, (meaning as I understand it from Epsom to Leatherhead only) will, in his opinion, be very beneficial tot he interests of the shareholders, and that it is much desired by the inhabitants of Leatherhead and the districts adjoining. And without suggesting that the company has, or is likely to overcome the difficulties, which have made it impossible to proceed otherwise than as before stated, he says he thinks it very probable that the whole of the said Direct London and Portsmouth Railway, or some railway in the same line, will be made at some future period. In this affidavit, much which is not said, is, I conceive, designedly left to inference and presumption; but upon these affidavits, considering not only what is said, but also what is omitted, and which I must presume would have been said if it could have been said truly, I am obliged to conclude that at the present time the company have neither the intention, nor the means, nor any probability of obtaining the means, of completing the whole line under the powers they now possess. They seem to have the means and the intention to complete a part only-and they think that their doing so would be advantageous to NEW SERIES, XVIII.-CHANC. the shareholders. Granting that to be so, I am of opinion that without the authority of another act of parliament they have no right to apply the capital, subscribed for the whole line, to that limited purpose. The powers of this act of parliament were not given, nor did the shareholders subscribe their capital merely to enable the company to make profit (though for the benefit of the subscribers themselves), nor to complete a particular portion of the work, neglecting the rest, merely because that particular portion is much desired by the inhabitants of Leatherhead and its vicinity, nor merely upon the chance that the whole line authorized by the act, or some other line, will or may be made at some future time. But the terms and conditions of the parliamentary work are otherwise defined, and the powers given are to be exercised in making and completing the whole line from Epsom to Portsmouth, and only for that purpose; and as the defendants now are unable or unwilling to say that they are applying or intend to apply the funds or capital of the company now in their possession for or towards that entire purpose, I am of opinion that I must grant an injunction to restrain them, not in the words of the notice of motion, but in terms to suit the nature of the case. Therefore let an injunction issue to restrain the defendants from applying the capital and funds of the Direct London and Portsmouth Railway Company or any part thereof in or towards the construction of a railway from the Croydon and Epsom Railway commencing by a junction therewith in the parish of Epsom to Leatherhead in the county of Surrey only, or any otherwise than for the purpose and with the view of making and completing the said railway from the said Croydon and Epsom Railway as aforesaid to the parish of Portsea in or near the town of Portsmouth in the county of Southampton pursuant to the powers now vested or hereafter to be vested in them by parliament. Note. Affirmed by the Lord Chancellor, on appeal, on the 8th of November 1849. 3 H Payment of Money out of Court-Costs. A sum of money was paid into court upon the purchase of certain land by a railway company, whose act provided for the costs of obtaining the money out of court. That railway was incorporated with a second railway, and the act of the first railway was repealed. The act of the second railway did not provide for the costs. The second railway was then amalgamated with a third railway, and both the previous acts were repealed: but it was provided, that where any money had been, or should be, paid into court by either of such dissolved companies, upon the purchase of lands, such monies should be held and disposed of, pursuant to the act under which the same had been paid, and the provisions in such act relating to the money so paid should remain in full force :-Held, that the costs of obtaining the money out of court should be paid by the third railway company. This was a petition for the payment out of court of a sum of money which had been paid in by the Chester and Crewe Railway Company, upon the purchase of a piece of land in the county of Bucks. The petition stated that upon the marriage of the late Sir J. Chetwode, in October 1785, the property so purchased by the railway company was settled upon Sir J. Chetwode for life, with remainder to his eldest son in tail. The petitioner, Sir John Newdigate Ludford Chetwode, was such eldest son, and on his marriage in 1821 he barred the entail, and by a settlement dated the 14th of September 1821 the estate was limited to the petitioner for life, with remainder to the first and other sons of that marriage, with remainder to the Rev. G. Chetwode, the second son of the said Sir J. Chetwode, deceased, for life, with remainder to his first and other sons in tail. Upon the purchase of the land by the railway company, an order was made dated the 19th of December 1839, for investment of the purchase money, and the dividends were ordered to be paid to Sir J. Chetwode for life. Sir J. Chetwode died in December 1845, and the petitioner, Sir J. N. L. Chetwode, had no child, and Lady Chetwode, his wife, was upwards of seventy years of age. The Rev. G. Chetwode was the next tenant for life, and Lieut. George Chetwode was his eldest son. By a deed dated in May 1848, the entail in this money was barred, and the Rev. G. Chetwode and his eldest son assigned the fund to the petitioner, Sir J. N. L. Chetwode, who was therefore entitled to the money so invested by the railway com pany. An objection was raised on behalf of the railway company, that the costs of obtaining this order could not be allowed to the petitioners under the following circumstances. It appeared that the act of parliament for making the Chester and Crewe Railway contained a provision for the payment of such costs; but the Chester and Crewe Railway being afterwards united with the Grand Junction Railway, the act of the Chester and Crewe Railway was repealed, and the Grand Junction Railway act contained no provision for the payment of these costs. Subsequently, the Grand Junction Railway was amalgamated with the London and North-Western Railway Company, and the act of the Grand Junction Company was then repealed: but by the 10th clause in the act of the London and NorthWestern Company, it was enacted, "That in all cases in which, under any of the provisions of the acts thereby repealed, any money had already been paid or should be paid by any of the said dissolved companies, or by the company incorporated, or any of them, into the Bank of England, to any trustee or trustees, then such sums of money should be applied and disposed of pursuant to the act, and all the clauses, provisions, powers, and authorities contained in such act or acts, in relation to such monies, should, for the purposes of that act, remain in force, and should be taken as if the company thereby incorporated were named in each such act, instead of the company to which such act related." Mr. Taylor appeared in support of the petition, and contended that under the above clause the costs were payable, inasmuch as the provisions of the Chester and Crewe act, under which this land was taken, were, for all purposes relating to these costs, re-enacted. Mr. Follett, contrà, contended that as by the first section of the act incorporating the Grand Junction Railway with the North Western, it was expressly provided that the clauses in the Chester and Crewe act and the Grand Junction act, which were thereby repealed, should not be revived, the petitioners could not claim their costs. The VICE CHANCELLOR.-As I understand, under the Chester and Crewe act, the costs might have been had. Now we will call that, act of parliament A. Then an act of parliament was passed for uniting the Chester and Crewe Railway Company with the Grand Junction, and that act, which I will call the act B. repealed the act A. The consequence thereof was, at that time, as the Chester and Crewe act was repealed nothing could be done. Then there comes this act of the 9 & 10 of Her Majesty, which incorporated the Grand Junction with the London and North-Western, and repealed the second act B; and the repeal of the second act B appears to me of necessity a restitution of the act A. And whether it had been so or not, there is the provision that is contained in the subsequent part of section 1, in the last of the acts, which directs that all such penalties, damages, costs and expenses as would or thereafter might have become payable, in case the same acts had not been repealed, "shall and may be payable by and recoverable from the said company hereby incorporated," and so on, in such manner as if the acts had not been repealed. That is followed by the 10th section, which seems to me to say, “ that in all cases in which, under any of the provisions of any of the acts hereby repealed, any sum of money has already been paid by any of the said dissolved companies, or by the company incorporated, or any of them, or shall hereafter be paid by any or either of them, or by the company hereby incorporated, into the Bank of England, to any trustee or trustees"; (and that must mean to the account of any trustee or trustees), "then such sums, stocks and securities, and the dividends shall be applied and disposed of pursuant to the act, and all the clauses, provisions, powers, and authorities contained in such act or acts, in relation to such monies, stocks, funds, and securities, shall, for the purpose of this act, remain in force, and shall be construed and taken as if the company hereby incorporated were named in each such act instead of the company to which such act relates." Therefore, according to my opinion, there is no doubt that the London and North-Western Company must pay to the petitioners their costs of obtaining this order, and of all proceedings relating thereto. V.C. May 31; June 1, 2. Jurisdiction THE GRAND JUNCTION COMPANY v. DIMES. CANAL Breach of Injunction Power of a Judge being an interested Party. The injunction having been granted, and made perpetual on the hearing of the cause, to restrain the defendant from doing any act to impede the navigation of the Grand Junction Canal, the defendant appealed from the order to the Lord Chancellor, who continued the injunction. The defendant then applied to the Lord Chancellor, by motion, that that decree might be annulled, on the ground of his Lordship being a shareholder in the company, and therefore incompetent to decide the case :-Held, upon motion to commit for breach of the injunction, that the Vice Chancellor had no power to alter or discharge an order made by the Lord Chancellor, but that such order must be taken, as it appeared to be, without reference to the power of his Lordship to make such an order. Held, also, that the defendant, by employing a clerk to take the number of the barges that passed on the canal, and to inform the bargemen that they were trespassers, had not thereby committed a breach of the injunction; but that his having brought actions against the company in respect of such barges having passed, was contrary to the tenour of the decree, and in that respect an injunction was granted to restrain the actions. This cause came on originally before the Vice Chancellor, upon motion for an in junction, when it appeared that the Grand Junction Canal Company had purchased certain lands in the parish of Rickmansworth, from a person named Joseph Skidmore, who was a copyhold tenant of the manor of Rickmansworth. The company were not, at the time of the purchase, admitted on the books of the manor, and upon the death of Joseph Skidmore, the defendant Dimes, who had then become lord of the said manor, refused to admit the company unless upon the payment of a sum of 5,500l. from the company, and placed a bar across the canal so as to put a stop to the navigation thereof. An injunction was then granted by the Vice Chancellor, to restrain the defendant, his agents, servants, or workmen from in any manner stopping, impeding, or obstructing, or causing to be stopped, impeded, or obstructed, the passage of boats, barges, or other vessels along the Grand Junction Canal, and from in any manner hindering the navigation of the canal, and from in any manner damaging or injuring, or causing or procuring to be hindered or damaged the said canal or the banks thereof, and the towing-path of the same, or any part thereof. The defendant Dimes appealed against the decision to the Lord Chancellor, who continued the injunction. afterwards came on for hearing before the Vice Chancellor in November 1846, when the injunction was made perpetual, and it was decreed that the customary heir of Joseph Skidmore, the vendor, should be admitted to the land, and that such heir, when admitted, should hold the premises as trustee for the company, who were to pay the fines and fees upon admissionVide 16 Law J. Rep. (N.s.) Chanc. 148. This decision was afterwards affirmed by the Lord Chancellor, upon appeal (17 Law J. Rep. (N.s.) Chanc. 206), and the defendant subsequently moved that the decree of the Lord Chancellor might be annulled, on the ground that his Lordship, as the executor of Sir W. W. Pepys, who was a shareholder in the Grand Junction Canal Company, was an interested party, and was not competent to make an order in the case. The Lord Chancellor, upon this, directed the motion to be heard before the Master of the Rolls, who refused it, with costs-Vide ante, p. 365. The cause A motion was now made, on behalf of the company, to commit the defendant to prison for a breach of the injunction, in having interfered to impede the navigation of the canal; and an injunction was also asked for to restrain the defendant, his attorney or agent, from prosecuting certain actions at law, which he had commenced against the company. It appeared from the evidence in support of the motion, that the defendant had employed persons to stand at that part of the canal which passed over the land belonging to his manor, and to give notice to the men who navigated the barges on the canal that they were trespassing on the property of the defendant, and the persons so employed were also directed to take down the numbers of the different barges which passed along the canal. It further appeared that the defendant had, in May last, commenced fifteen different actions against the company, in respect of the barges which had passed along the canal. Mr. Stuart, Mr. J. Parker, and Mr. Busk appeared in support of the motion, and contended that the acts which the defendant had committed constituted a breach of the injunction, and that he had acted contrary to the spirit of the decree of the Court in bringing the actions at law against the company. The following cases were cited Casamajor v. Strode, 1 Sim. & S. 381. Mr. Daniel and Mr. Corrie appeared for the defendant Dimes, and contended that the Court could not interfere to enforce the injunction, since the decree made by the Lord Chancellor, who was a party interested in the canal company, was void. It had been decided in various cases, that a Judge who had an interest in a cause was incompetent to make a decision upon it: consequently an error had been committed by the Lord Chancellor, and the decree made by him must be considered entirely null and void. The Lord Chancellor had himself, in some measure, admitted this principle, by sending the motion to annul the proceedings to the Master of the Rolls. When the action was tried at law, the same principle was admit |