would have been to put the whole matter in the way of being tried, by placing himself at once upon the list of contributories, or making some application to the Court to determine the expediency of having the company wound up under the statute. He might have done what he is now doing fifteen months ago. Can I now upon his sole application, no one else appearing to object to the order, do what, if all the facts had been before me at the time of the making of this order, I should probably have done, declare that this company should not be wound up under the Act?

There are still some grounds for proceeding under the statute. The shareholders are confessedly liable to the extent of 1s. per share, and there is no reason why the directors should themselves pay the debt of £67, and they would have a right to complain if they were not indemnified. It may be true that they were not justified in putting this expensive machinery in motion. Still it has been done, and no one has complained until now. Whatever order I might have made, if Mr. Clarke had indemnified the official manager against the costs which he has already incurred, I do not think I can now stay the proceedings; and I must therefore refuse this motion as against him with costs.

[28] BRIDGER v. PENFOLD. Nov. 9, 1854.

[S. C. 3 Eq. R. 141.]

Sale by the Court. Certificate. Judge's Signature. Opening Biddings.

On a sale under a decree the signature of the certificate of the purchase by the Judge in Chambers is equivalent to the order nisi to confirm the Master's report under the former practice; and the certificate is liable to be discharged at any time within eight days after such signature.

Consequently, an application to open the biddings on the usual terms may be made within eight days after the certificate is signed by the Judge.

Order made opening the biddings upon an undertaking to abide by the order of the Court as to the expenses of the resale, where the advance was only £9 more than the probable expenses of such resale.

In this case there had been a sale by auction of certain leasehold property, under a decree of the Court, and the Vice-Chancellor had just signed the certificate approving the purchaser of Lot 1, at the price of £100.

Mr. J. H. Palmer now moved to open the biddings as to this lot, on behalf of certain persons who offered an advance of £50, and the payment of the costs, charges and expenses occasioned to the purchaser by his bidding at the former sale.

Mr. Turner, for the former purchaser, objected that the application was too late, as the Vice-Chancellor had signed the certificate. He said, moreover, that the real benefit to the property would be very small, as the expenses of the former sale

were £41.

Mr. Grenside, for the Plaintiff, Mr. W. H. Terrell, for other parties.

Mr. Palmer said that his clients would bear the costs of the future sale. THE VICE-CHANCELLOR Sir W. PAGE WOOD said that his signing the certificate was only equivalent to the order nisi confirming the Master's report of the purchase under the former practice; and, by 15 & 16 Vict. c. 80, s. 34, and Order 51 of 16th Oct. 1852, eight days were given, after such signature and the filing of the certificate, within which the certificate might be discharged. His Honour, therefore, did not think that the application was too late; and if Mr. [29] Palmer's clients would undertake to abide by any order which the Court might make for payment by them of the whole or any part of the expenses of the second sale, and offered besides an advance of £50, and to pay the costs of the former purchaser, the application must be granted.

[29] BUCKLEY v. COOKE. Nov. 9, 1854.

Common Law Procedure Act, 1854, s. 22. Evidence. Discrediting.

The 22d section of the Common Law Procedure Act, 1854, authorising a party to a suit to discredit his own adverse witness, applies to the Courts of Chancery, and to an examination not in Court, but before an Examiner; but the leave to produce counter evidence must be given, not by the Examiner, but by the Judge upon a special motion.

An Examiner in Chancery has no authority to determine whether questions as to the relevancy or adverse nature of the evidence of a witness; but when the question as to his being adverse is likely to be raised the Examiner should take down the questions as well as the answers upon which counter evidence may be required. At the hearing this leave cannot be given, because no new witness can then be called.

This was a motion by the Plaintiff in this cause, that she might be at liberty to produce before the special Examiner, or otherwise, as the Court might direct, evidence to prove that one of the witnesses who had been examined on her behalf had made at other times statements inconsistent with the testimony given by him in this cause. The evidence was not closed, the time for taking it having been enlarged; but the depositions already taken had been returned.

The evidence which it was sought to impeach was given on cross-examination of the witness by Defendants in the same interest as the Plaintiff. It was shewn that the witness had actually made, some time previously, to the Plaintiff's solicitor a statement materially at variance with the evidence now given by him; and that his attention had at the time of the examination been called to this fact, and he had been asked whether he remembered his former statement.

Mr. Rolt, Q.C., and Mr. Eddis, for the Plaintiff, referred to sect. 22 of the Common Law Procedure Act, 1854, which enacts that "a party producing a witness shall not be allowed to impeach his credit by general evidence of bad char-[30]-acter, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or, by leave of the Judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement;" and to sect. 103 of the same Act, which provides that "the enactments contained in sections" 19 to 32 inclusive "shall apply and extend to every Court of civil judicature in England and Ireland."

Mr. Daniel, Q.C., and Mr. Cankrien, contrà, objected that the examination had taken place some time before the Common Law Procedure Act came into operation, which was only on the 24th of October last (sect. 104), and that this statute had no retrospective operation. They argued, also, that sect. 22 did not apply to Courts of Equity, for, by the interpretation clause, sect. 99, "Courts" was to be understood to mean "any one of the Superior Courts of Common Law at Westminster," and the word "Judge" to mean "a Judge or Baron of any of the said Courts." Moreover, it was plain that the meaning of sect. 103 was not that all the sections of the Act from 19 to 32 were to apply to Courts of Equity, but only such as were from their nature applicable; because sect. 32, for example, which provided that error might be brought upon a judgment upon a special case in the same manner as upon a judgment upon a special verdict, obviously could not apply to Courts of Equity, where special verdicts were unknown. [THE VICE-CHANCELLOR. The interpretation clause is curiously worded, and that part of it to which you have referred cannot apply to the 103d section.] Another reason why sect. 22 was not applicable to Courts of Equity was that its language referred in terms to a Court in which it was the custom to examine [31] witnesses viva voce before the Judge in open Court, which was not the case in Chancery; and the object of the section was plainly to enable the Judge to consider whether or not, upon the fair effect of the evidence, regarding the circumstances and manner of conducting the examination, the witness was in fact contradicting a former

statement, and only if he should be of that opinion to give leave to impeach his testimony by other evidence. [THE VICE-CHANCELLOR, If I found it necessary to have the witness brought into Court and examined, and considered his evidence to be adverse, could not I have enabled the Plaintiff to produce evidence to contradict it?] Probably, but in that case there would be the material circumstance that the examination would have taken place before a Judge, as at common law. Here it was before an Examiner, who had no authority to decide whether the witness was adverse or not. [THE VICE-CHANCELLOR. That appears here from the depositions.] Then the Defendants might have produced evidence of the former statements of this witness by examining the solicitor. [THE VICE-CHANCELLOR. But the Plaintiff could not have used that evidence. This motion is on her behalf.]

Mr. Selwyn, for other parties. It is a matter of discretion with the Court at any rate to grant or refuse this leave, and the Court will not grant it in a case like this, where the Plaintiff's solicitor has had communication with the witness, and now seeks to bind him by what he then said.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that I should be contradicting the express words of the statute if I were to hold that section 22 did not apply to the Courts of Chancery, the statute having declared expressly that this section shall apply to every Court of civil judicature in England and Ireland. It is true, as it unfortunately often happens in passing long bills [32] like the present, that an inconsistency has occurred, even in the very title of the Act, which is for the amendment of the practice, &c., in "the Superior Courts of Common Law at Westminster," as well as in the interpretation clause, which says that the word "Court" is to signify the Courts of Common Law at Westminster. Of course that would exclude the Courts of Chancery, whereas, by the 103d section, to which I have referred, it is enacted that every Court of civil judicature is to have the advantage of some of the provisions of this statute.

However, if I were to hold that these sections do not apply, I should be depriving parties in this Court of some of the most valuable improvements in the law of evidence that have been made for a long time. It is true that one of these sections, which speaks of a "verdict," can have no reference to this Court; but the general provision must mean that sections 19 to 32 inclusive are to apply to every civil Court to which they can be made applicable. Now, section 22 is most materially applicable to this Court, though perhaps not so literally as to a Court in which the evidence is usually taken before the Judge himself. (His Honour read it.) It seems to me that this clause applies perfectly to the course of proceedings in this Court; and it would be strange to hold it to be applicable, as it would be in terms, to a case in which a witness in Chancery was examined in Court before a Judge, who then determined whether or not he was adverse, and gave leave to have other witnesses examined, and that it did not apply in case the examination was conducted by the Examiner. That would be giving a construction which would impair the efficiency of the Act, and would be no benefit either to Plaintiffs or Defendants. It is plain, of course, that the Examiner is not the Judge to whom the cause is referred, and has no power to determine questions as to the relevancy of the evidence, or, in other respects, to comport himself as a [33] Judge; and, therefore, the application for leave under this 22d section must be made in Court. It is fortunate here that the evidence is not closed, for, if it were, there would be some difficulty in granting the leave now asked, which could only be done upon opening the whole matter, because it is possible that the additional evidence to be produced may require evidence to answer it. It is clear that the witness has been called by the Plaintiff to prove his case, and the statements made by this witness to the Plaintiff's solicitor appear to be distinctly at variance with his evidence in the cause, which is completely adverse to the case of the party who called him. I think that is a case of all others in which the jurisdiction is most necessary to be exercised; for no man calls a witness blindly, without knowing generally what will be the nature of his evidence; and thus a witness, under the former practice, was able to lay a trap for a party by making statements to him, and then, in the witness-box, giving quite contrary evidence, which the party who called him had no opportunity of refuting. I do not agree that, because the witness made these statements before the Act, when he might have thought evidence of them could

not have been given at his examination, I should be the more inclined to refuse this application. With respect to the mode in which leave should be granted, I observe that there are some conflicting statements which the witness is alleged to have made, to which his attention was not called at the examination. I am satisfied that the witness has proved adverse, and that the questions required by the Act have been asked him with respect to those statements to which his attention was called. I will, therefore, give liberty to either party to produce this witness before the Examiner for general re-examination, and leave for the Plaintiff to produce before the Examiner a witness to prove that this witness on a former occasion made statements inconsistent with some parts of his present testimony. I hope in future [34] that the Examiner in a case of this kind will state the particular questions which were asked; as he has not done so, let the depositions be handed up to me, and I will mark those parts of them which I give leave to the Plaintiff now to disprove. The order will run “in respect of his testimony beginning with the words 'I don't remember,' in folio 70 of the depositions, and ending with the words 'that effect,' in folio 71." I had some little doubt whether it would not have been better to re-examine this witness myself at the hearing, but then, perhaps, no new witness could have been called to discredit him.

[34] PINCHIN . THE LONDON AND BLACKWALL RAILWAY COMPANY. THE SAME v. THE SAME. August 1, 3, 4, Nov. 9, 10, 15, 1854.

[S. C. on appeal, 5 De G. M. & G. 851; 43 E. R. 1101 (with note, to which add London Association of Shipowners and Brokers v. London and India Docks Joint Committee [1892], 3 Ch. 269).]

Easement. Notice to treat.

Lands Clauses Consolidation Act, 1845, ss. 18, 21, 84

and 92. Railways Clauses Act, ss. 6 and 16. Counter Notice. Acquiescence. Throwing a railway bridge over a yard belonging to a manufactory, and used for the preparation of colours, a process which required air and light, is taking a part of the manufactory within the 92d section of the Lands Clauses Consolidation Act, 1845, notwithstanding that no part of the soil itself is actually taken or touched. A notice to treat for the purchase of the right or easement of making, and for ever maintaining, the railway by such bridge over the landowner's property is a valid notice within the 18th section of the Lands Clauses Consolidation Act. The paramount object of the company's Special Act incorporating the Lands Clauses and Railways Clauses Acts is to enable the company to make the railway; and the 6th section of the Railways Clauses Act refers to the Lands Clauses Act as that under which the compensation for lands "taken or used" under the Railways Clauses Act is to be ascertained, while the 16th section of the same Act gives power to construct the line by means of arches; and the 84th section of the Lands Clauses Act provides that compensation shall be made for lands "required to be purchased or permanently used" by the company; and, therefore, companies are empowered permanently to use lands without actually taking the whole interest therein. The 16th section of the Railways Clauses Act applies to the general works of the line, and not to collateral works only, notwithstanding that tunnels are therein mentioned, and that, by sect. 13, only such tunnels can be made as are mentioned in the plans and books of reference; for the 16th section is expressly made subject to the other provisions of the Act.

Where such a notice to treat, as above mentioned, was given three days before the time limited for exercise of the compulsory powers expired, and the landowner, fourteen days afterwards, by a counter notice, required the company to take the whole of the manufactory, such counter notice operated not as a determination but as a suspension of the original notice to treat until it was accepted by the company, and until such acceptance it was competent for the landowner to withdraw the counter notice, by which course the original notice would be revived. Such suspension is only upon the terms that the landowner is willing and able to sell the

whole of the manufactory, and, therefore, an interlocutory injunction to restrain the company from proceeding to enforce their original notice was granted upon the landowner's undertaking to that effect. Nine months after the counter notice was served the company gave notice to the landowner of their intention to summon a jury to assess the compensation in respect of their original claim. Held, that the powers conferred by the Railway Acts were not lost by this acquiescence, and that the company were not bound to follow up their original notice until called upon to do so by the landowner.

Upon being restrained from proceeding upon their original notice upon the abovementioned terms, the company withdrew their notice to proceed thereon, and consented to take the whole of the manufactory, and proceeded to ascertain its value by summoning a jury under the powers of the Lands Clauses Consolidation Act. Held, that they were, under all the circumstances, at liberty to do so, and an application for an injunction to restrain them was refused.

Semble, that the jury would have authority to determine, if necessary, the extent as well as the value of the manufactory.

These were two suits between the same parties, one of which succeeded the other after a short interval. The [35] object in each suit was to restrain the company from exercising their compulsory powers to take the Plaintiffs' land under somewhat different circumstances.

The Plaintiffs, John Pinchin and Oliver Palmer Johnson, were colour manufacturers and grinders, oil and wax refiners, picklers, melters of tallow and manufacturers of resin and turpentine, and of various other articles, and cart and mill grease makers, carrying on these trades together as co-partners, in the New Road and Cable Street, in the county of Middlesex, close to the line of the Blackwall Railway. Their business premises consisted of lands and buildings, part of which had been purchased of the London and Blackwall Railway Company, and conveyed by them, under the powers of their Special Acts, to the Plaintiffs as tenants in common in feesimple, and part consisted of four arches of the Blackwall Railway, which the Plaintiffs held from the company upon lease, for the term of 999 years.

The Act for widening the line of the London and Blackwall Railway passed on the 27th of July 1846. By this [36] Act it was enacted that the "Lands Clauses Consolidation Act, 1845," and so much of the "Railways Clauses Consolidation Act, 1845," as related to the construction and working of railways, to the temporary use of lands during the construction of railways, to the taking of lands for additional stations, to the mode of crossing of roads and construction of bridges, and to the construction of arches, culverts and works for the protection and accommodation of lands adjoining the railways, should respectively, except so far as the same might by this Act be otherwise provided for, and except such of the provisions thereof as might be inconsistent with the provision therein contained, be incorporated with and form part of this Act: and the purchase and taking of land, and the construction, working and use of the works thereby authorised, should be subject only to the provisions, regulations and restrictions of the "Lands Clauses Consolidation Act" and "Railways Clauses Consolidation Act."

And by section 3, after reciting that plans and sections of the proposed widening of the London and Blackwall Railway, shewing the line and levels thereof, and also books of reference, containing the names of the owners, lessees and occupiers, or reputed owners, lessees and occupiers of the lands through which the same was intended to pass, had been deposited with the respective Clerks of the Peace for the county of Middlesex and for the City of London, it was enacted that, subject to the provisions in the said Act, and in the Lands Clauses Consolidation Act, 1845, and the Railways Clauses Consolidation Act, 1845, contained, it should be lawful for the company to widen the said railway on the line and upon the lands delineated on the said plans, and described in the said books of reference, and to enter upon, take and use such of the said lands as should be necessary for such purpose.

By another Act of Parliament, passed on the 28th of July [37] 1849, the time limited for the compulsory purchase or taking of lands for the purpose of widening the line was extended until the 27th day of July 1851.