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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) i Myl. & K 164. 5. 6.2 Law J. Rep. (us) 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 Leather head 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 par, liament,
Sir J. Chetwode died in December 1845, va ( Ex parte CHETWODE.
and the petitioner, Sir J. N. L. Chetwode, < In re THE CHESTER AND CREWE May 29. RAILWAY COMPANY.
had no child, and Lady Chetwode, his
wife, was upwards of seventy years of age. Payment of Money out of Court-Costs.
The Rev. G. Chetwode was the next
tenant for life, and Lieut. George ChetA sum of money was paid into court upon wode was his eldest son. the purchase of certain land by a railway By a deed dated in May 1848, the encompany, whose act provided for the costs tail in this money was barred, and the Rev. of obtaining the money out of court. That G. Chetwode and his eldest son assigned railway was incorporated with a second rail. the fund to the petitioner, Sir J. N. L. way, and the act of the first railway was Chetwode, who was therefore entitled to repealed. The act of the second railway the money so invested by the railway comdid not provide for the costs. The second pany. railway was then amalgamated with a third An objection was raised on behalf of railway, and both the previous acts were the railway company, that the costs of obrepealed: but it was provided, that where taining this order could not be allowed to any money had been, or should be, paid into the petitioners under the following circumcourt by either of such dissolved companies, stances. It appeared that the act of parupon the purchase of lands, such monies liament for making the Chester and Crewe should be held and disposed of, pursuant to Railway contained a provision for the the act under which the same had been paid, payment of such costs; but the Chester and the provisions in such act relating to and Crewe Railway being afterwards united the money so paid should remain in full with the Grand Junction Railway, the act force :-Held, that the costs of obtaining the of the Chester and Crewe Railway was remoney out of court should be paid by the pealed, and the Grand Junction Railway third railway company.
act contained no provision for the payment
of these costs. Subsequently, the Grand This was a petition for the payment out Junction Railway was amalgamated with the of court of a sum of money which had London and North-Western Railway Combeen paid in by the Chester and Crewe pany, and the act of the Grand Junction Railway Company, upon the purchase of Company was then repealed: but by the 10th a piece of land in the county of Bucks. clause in the act of the London and North
The petition stated that upon the mar- Western Company, it was enacted, “ That riage of the late Sir J. Chetwode, in Octo- in all cases in which, under any of the prober 1785, the property so purchased by visions of the acts thereby repealed, any the railway company was settled upon Sir money had already been paid or should be J. Chetwode for life, with remainder to his paid by any of the said dissolved compaeldest son in tail. The petitioner, Sir John nies, or by the company incorporated, or Newdigate Ludford Chetwode, was such any of them, into the Bank of England, eldest son, and on his marriage in 1821 to any trustee or trustees, then such sums he barred the entail, and by a settlement of money should be applied and disposed dated the 14th of September 1821 the of pursuant to the act, and all the clauses, estate was limited to the petitioner for provisions, powers, and authorities conlife, with remainder to the first and other tained in such act or acts, in relation to sons of that marriage, with remainder to such monies, should, for the purposes of the Rev. G. Chetwode, the second son of that act, remain in force, and should be taken the said Sir J. Chetwode, deceased, for as if the company thereby incorporated life, with remainder to his first and other were named in each such act, instead of sons in tail. Upon the purchase of the the company to which such act related." land by the railway company, an order Mr. Taylor appeared in support of the was made dated the 19th of December petition, and contended that under the 1839, for investment of the purchase money, above clause the costs were payable, inasand the dividends were ordered to be paid much as the provisions of the Chester and to Sir J. Chetwode for life.
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.
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.
THE GRAND JUNCTION CANAL
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 sec. tion, 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
V.C. ) May 31; Y
COMPANY 0. DIMES. June 1, 2.)
Jurisdiction — 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 tres. passers, 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 A motion was now made, on behalf of Junction Canal Company had purchased the company, to commit the defendant to certain lands in the parish of Rickmans- prison for a breach of the injunction, in worth, from a person named Joseph Skid- having interfered to impede the navigation more, who was a copyhold tenant of the of the canal ; and an injunction was also manor of Rickmansworth. The company asked for to restrain the defendant, his were not, at the time of the purchase, attorney or agent, from prosecuting certain admitted on the books of the manor, and actions at law, which he had commenced upon the death of Joseph Skidmore, the against the company. It appeared from the defendant Dimes, who had then become lord evidence in support of the motion, that the of the said manor, refused to admit the defendant had employed persons to stand company unless upon the payment of a at that part of the canal which passed over sum of 5,500l. from the company, and the land belonging to his manor, and to placed a bar across the canal so as to put a give notice to the men who navigated the stop to the navigation thereof. An injunc- barges on the canal that they were trestion was then granted by the Vice Chan- passing on the property of the defendant, cellor, to restrain the defendant, his agents, and the persons so employed were also servants, or workmen from in any manner directed to take down the numbers of the stopping, impeding, or obstructing, or different barges which passed along the causing to be stopped, impeded, or ob- canal. It further appeared that the defenstructed, the passage of boats, barges, or dant had, in May last, commenced fifteen other vessels along the Grand Junction different actions against the company, in Canal, and from in any manner hindering respect of the barges which had passed the navigation of the canal, and from in along the canal. any manner damaging or injuring, or caus- Mr. Stuart, Mr.J. Parker, and Mr. Busk ing or procuring to be hindered or damaged appeared in support of the motion, and the said canal or the banks thereof, and contended that the acts which the defenthe towing-path of the same, or any part dant had committed constituted a breach thereof. The defendant Dimes appealed of the injunction, and that he had acted against the decision to the Lord Chancellor, contrary to the spirit of the decree of the who continued the injunction. The cause Court in bringing the actions at law against afterwards came on for hearing before the the company. Vice Chancellor in November 1846, when the injunction was made perpetual, and
The following cases were citedit was decreed that the customary heir of Casamajor v. Strode, 1 Sim. & S. 381. Joseph Skidmore, the vendor, should be Dene v. Abell, Seton on Decrees, 424. admitted to the land, and that such heir, when admitted, should hold the premises Mr. Daniel and Mr. Corrie appeared as trustee for the company, who were to for the defendant Dimes, and contended pay the fines and fees upon admission that the Court could not interfere to enVide 16 Law J. Rep. (N.s.) Chanc. 148. force the injunction, since the decree made This decision was afterwards affirmed by by the Lord Chancellor, who was a party the Lord Chancellor, upon appeal (17 Law interested in the canal company, was J. Rep. (n.s.) Chanc. 206), and the de- void. It had been decided in various fendant subsequently moved that the cases, that a Judge who had an interest in decree of the Lord Chancellor might be a cause was incompetent to make a decision annulled, on the ground that his Lord- upon it: consequently an error had been ship, as the executor of Sir W. W. Pepys, committed by the Lord Chancellor, and the who was a shareholder in the Grand Junc- decree made by him must be considered tion Canal Company, was an interested entirely null and void. The Lord Chanparty, and was not competent to make an cellor had himself, in some measure, adorder in the case. The Lord Chancellor, mitted this principle, by sending the upon this, directed the motion to be heard motion to annul the proceedings to the before the Master of the Rolls, who re- Master of the Rolls. When the action was fused it, with costs—Vide ante, p. 365. tried at law, the same principle was admit