He cited The King v. The Commissioners of Dean Inclosure (a), and The King v. The Severn and Wye Railway Company (b). In the latter case, the language of Mr. Justice Best was peculiarly applicable. His lordship said, both upon principle and authority, I am of opinion that the Court ought to grant this mandamus. Numerous applications are made to parliament by speculative individuals, to form these navigable canals and railways: great public benefits are held out as an inducement to the legislature to sanction these undertakings; and when their sanction is obtained, is it to be permitted to these persons to say, that they will do only that which is beneficial to themselves, and disregard entirely the interests of the public? It has been argued, in this case, that there is a specific remedy by indictment, and that, therefore, we ought not to grant a mandamus. I think, however, that that objection ought not to prevail in this case, for an indictment does not afford a remedy equally effectual to compel the reinstating of the road, which is the purpose to be answered by the granting of this writ." (c)

(a) 2 M. & S. 80.
(5) 2 B. & Ald. 646.

dize between those places and
the adjacent districts, and the se-
veral intermediate towns and
places," &c. By s. 171, "that
all persons shall have free liberty
to pass along and upon, and
to use and employ the said
railway, with carriages properly
constructed, as by this act di-
rected, upon payment only of
such rates and tolls as shall be
demanded by the said Company,
not exceeding the respective rates
or tolls by this act authorized,
and subject to the rules and regu-
lations which shall from time to
time be made by the said Company,
or by the said directors, by virtue
of the powers to them respective-
ly, by this act granted." Then

(c) The sections in the act of parliament, which were cited, were, Whereas the making a railway, with proper works and conveniences connected therewith, for the carriage of passengers, goods, and merchandize, from London to Birmingham, will prove of great public advantage, by opening an additional, cheap, certain, and expeditious communication, between the metropolis, the port of London, and the large manufacturing town and neighbourhood of Birmingham aforesaid, and will, at the same time, facilitate the means of transit and traffic for passengers, goods, and merchan

1839.

Ex parte
ROBINS.

1839.

Ex parte ROBINS.

PATTESON, J.-I wish this case had been moved earlier in the Term, so that I might have spoken to the other judges; but, however, it seems to me, that I should only do a great injury to the applicants if I was to grant their application, as it would be impossible to sustain the mandamus. It would only, therefore, be a delay to the applicants in seeking any other remedy that they may have. A mandamus, if granted at all, must be to do something which the Company are required to do by the act of parliament, not something which they are required to do by the general law of the land. Now it is admitted that there is no clause in the act requiring the Company to take the goods of all persons who present them for conveyance, in the carriages of the Company; and indeed the act seems rather to negative such an obligation. The 171st section authorizes all persons to use the railway with carriages properly constructed, on payment of certain rates; and it seems, therefore, that the present applicants may make carriages of their own, and may require the Company to allow them to be conveyed along the railroad. By the 174th section, the Company are empowered, not required, to provide locomotive engines, or other power for drawing things along the railway, and may recover

by s. 172, it was further enacted,
"that it shall be lawful for the
said Company to demand, receive,
and recover, to and for the use and
benefit of the said Company, for
the tonnage of all articles, matters
and things, which shall be con-
veyed upon or along the said
railway, any rates or tolls, not ex-
ceeding the following." Amongst
these tolls was this, "For all cot-
ton and other wools, hides, drugs,
manufactured goods, and all other
wares, merchandize, articles, mat-
ters, or things, the sum of three-
pence per ton, per mile." And

by sec. 174, it was further enacted, "that it shall be lawful for the said Company, and they are hereby empowered to provide locomotive engines or other power, for the drawing or propelling of any articles, matters, or things, persons, cattle or animals, upon the said railway, and to receive, demand, and recover such sums of money, for the use of such engines or other power, as the said Company shall think proper, in addition to the several other rates, tolls, or sums, by this act authorized to be taken."

such sums of for the use of them as they think
money
proper, in addition to the other rates authorized to be
taken. It seems, therefore, that it was not intended by
the act to compel the Company to take all goods of all
persons which might be offered to be conveyed. The
argument next is, that the Company have held themselves
out to the world as common carriers, and that, therefore,
they are within the general law, and are obliged, in con-
sequence, to carry all goods, if they have room and means;
and that, therefore, they have no right to do so great an
injury to one set of carriers as to refuse their goods, and
to take the goods of others. It is argued, that that
cannot be done by the general law of the land, but a
breach of the general law of the land is the subject of an
action. The Court will never grant a mandamus to en-
force the general law of the land, which may be enforced
by an action. They will, however, in some cases, grant
a mandamus to do that which may be enforced by indict-
ment, as was determined in the cases that have been cited,
of which I see the full force. The rule, therefore, cannot
be granted in this case.

Rule refused.

Sic Backhaw &: Taylor 20. LJ. Q.B.255.

In the matter of HODSON and DREWRY.

pointment of an

lot consented to

SIR W. FOLLETT and Montague Smith shewed Where the ap-
cause against a rule, obtained by Kelly, for setting aside umpire was by
an award, on the ground that the umpire, who made the
award, had been chosen by lot. It appeared, from the
affidavit, that certain matters in difference having arisen
between the parties, it was agreed that they should be
referred to two arbitrators, who should, "prior to pro-

by the attor-
neys' clerks,
but not by the
attorneys them-
selves, or their

clients, the ap

held bad, al-
pointment was
though, the
parties, in ig-

norance of the mode of appointment, had attended the arbitrator.

1839.

HODSON and DREWRY.

ceeding on such reference, by and out of certain persons
named by the said parties, choose an umpire between
It was further agreed, that if the arbitrators
differed as to the award, then the umpire was alone
to make it. The agreement having been signed, the
attorneys corresponded as to the mode of appointing
an umpire. Drewry's attorney suggested that it should
be done in the usual way. A meeting then took place
between the arbitrators, and before proceeding on the
reference a list of six names was produced by each side,
in order to choose the umpire. Each party struck out
one name from his opponent's list. The rest of the names
were put into a hat, and at the suggestion of the persons pre-
sent a waiter of the inn drew out one name, and that one
was appointed umpire. The award was afterwards made
by him.
At this selection of the umpire, neither the
attorneys nor the parties were present, but merely the
attorneys' clerks. The attorneys and the parties after-
wards attended the meetings before the arbitrator and the
umpire. It did not appear, from the affidavits, whether
the attorneys or the parties had been made acquainted
with the mode in which the umpire was appointed. The
present rule was obtained to set aside the award which
had been made by the umpire alone.

It was contended, that although the appointment of an
umpire by lot might not, in general, be good, yet where
the parties had consented to such an appointment, and
proceeded with the reference before such an umpire, the
Courts had held such an appointment valid. The cases of
in the matter of Tunno v. Bird (a), Jamieson v. Binns (b),
Matson v. Trower (c) were cited.

Kelly and Humfrey, in support of the rule, contended that no sufficient consent had been given by the parties to render an appointment valid. The attorneys' clerks

had no power to bind their principals, or the clients of their principals, by an appointment effected contrary to law. The parties had not waived the objection by attending before the umpire, because they were unaware of the mode in which he had been appointed. Besides, the attorney of Drewry had suggested that the appointment should be in the usual way. To appoint an umpire by lot certainly was not the usual way. They cited the cases of Ex parte Cassell (a), and Ford v. Jones (b).

Littledale, J.-This was a rule, calling on Drewry to shew cause, why an award should not be set aside on three grounds. The third was, that the umpire was chosen by lot. On this point it was finally settled in In re Cassell, after a review of the previous decisions, that where two arbitrators were appointed, with power to name a third, and the two appointed placed the names of four persons in a hat, and drew out one, who was appointed, that such an appointment was bad. As a general rule, it was laid down, "that the appointment of the third person must be an act of the will and judgment of the two, and must be a matter of choice, and not of chance;" but Lord Tenterden adds, "unless the parties consent to, or acquiesce in, some other mode." In the case of Ford v. Jones, which was a subsequent case, Lord Tenterden says, “the principle laid down in the case of In re Cassell appears to me very sound, that the appointment of an umpire must be matter of choice, and not of chance. I thought the rule had been so clearly stated in that case as to exclude all subtle distinctions for the future." However, Lord Tenterden's hopes do not seem to have been realized, for in In re Tunno and Bird, the consent of the parties was held sufficient to make an appointment by lot valid; and the same was decided in In re Jamieson and Binns, though, in that case, the appointment was held bad, as the parties had not a knowledge of all the circumstances under which

(a) 9 B. & C. 624; 4 M. & R. 555.

(b) 3 B. & Ad. 248.

1839.

HODSON

and

DREWRY.