This was an action of ejectment, tried at the Sussex Spring Assizes, 1867, before Bramwell, B., when it appeared that the property in dispute was purchased, in 1850, by the South-Eastern Railway Company from G. Wilson, for the purposes of a branch line to be made under the provisions of 9 Vict. c. lxiv. s. 8. The land consisted of a long strip, bounded on the east by a high road and crossed by the intended line of railway. It was surrounded by the plaintiffs' land on all sides, except where bounded by the high road, on the other side of which was the defendants' land.

The works of the proposed railway were, by the 14th section of the above act, required to be completed by the 18th of June, 1853; they were, however, never commenced.

The company, at the time of the purchase, paid the then tenants of the property 1007. by way of compensation. In 1865, one of the tenants who had held the land without paying rent to any one, surrendered it to a person named Putland, to

* Decided in Hilary Term, 1868.

whom the company had, in 1864, sold it, and Putland afterwards conveyed it to the defendants. The plaintiffs claimed it either as superfluous or as abandoned land.

The following enactments are material: By 9 Vict. c. lxiv., the South-Eastern Railway Company were empowered to make a railway from Tunbridge Wells through the land in question; and all the provisions of the company's original act, 6 Will. 4. c. lxxv., then in force, "so far as not inconsistent with 9 Vict. c. lxiv., and save in so far as the same might be inconsistent with the Lands Clauses Consolidation Act, 1845, and the Railways Clauses Consolidation Act, 1845," were incorporated with that

act.

Section 205. of 6 Will. 4. c. lxxv. empowers the company, within ten years after the passing of the act, to sell superfluous lands, first offering the same to the immediately adjoining owners.

Section 218. of 6 Will. 4. c. lxxv. enacts that, "If the said railway, or any part thereof, shall at any time hereafter be abandoned or given up by the said company, or, after the same shall have been completed, shall for the space of three years cease to be used and employed as a railway, then and in such case the lands so purchased or taken by the said company for the purposes of this act, or otherwise, the parts thereof over which the said railway, or any part of such railway, which shall be so abandoned or given up by the said company shall pass, shall vest in the owners for the time being of the land adjoining that which shall be so abandoned or given up, in manner following: (that is to say), one moiety thereof in the owners of the land on the one side, and the remainder thereof in the owners of the land on the other side thereof."

Section 127. of the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), enacts that, "Within the prescribed period, or, if no period be prescribed, within ten years after the expiration of the time limited by the special act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands, and apply the purchasemoney arising from such sales to the purposes of the special act; and in default

Section 128. enacts that, "Before the promoters of the undertaking dispose of any such superfluous lands they shall, unless such lands be situate within a town or be lands built upon or used for building purposes, first offer to sell the same to the person then entitled to the lands (if any) from which the same were originally severed, or if such person refuse to purchase the same, or cannot after diligent inquiry be found, then the like offer shall be made to the person or to the several persons whose lands shall immediately adjoin the lands so proposed to be sold, such persons being capable of entering into a contract for the purchase of such lands; and where more than one such person shall be entitled to such right of pre-emption, such offer shall be made to such persons in succession, one after another, in such order as the promoters of the undertaking shall think fit."

The verdict was entered for the defendants, with leave to the plaintiffs to move; and a rule having been afterwards obtained to enter the verdict for the plaintiffs, on the ground that the locus in quo, or part of it, vested in the plaintiffs or some one of them either as abandoned or superfluous land,

Joseph Brown and Murphy shewed cause, contending that the Lands Clauses Consolidation Act made no difference between superfluous and abandoned lands, and that, therefore, as the time limited by that act was different from the time limited by the act of 6 Will. 4, there was such an inconsistency as precluded the incorporation of the 218th section of the last-named act in 9 Vict. c. lxiv.; also that, if the 218th section were in force at all, it was so by reason of the distinction between abandoned and superfluous land; and as the company were the owners of the superfluous land when the powers expired, the site of the intended line of railway vested in them Moody v. Corbett (1). (1) 34 Law J. Rep. (N.s.) Q.B. 166; in Ex. Ch. 35 Law J. Rep. (N.S.) Q.B. 161.

They also argued that 13 & 14 Vict. c. 83, which empowers the Railway Commis

sioners to authorize the abandonment of a railway, by making new provisions for abandonment, and requiring that the land abandoned should be sold within two years, did away with the effect of section 218. of the 6 Will 4. c. lxxv.

Sir G. Honyman, Hance and Cohen, in support of the rule, argued, that the 127th section of the Lands Clauses Consolidation Act made no provision as to abandoned lands, but referred to superfluous lands only, and that therefore both that section and the 218th section of 6 Will. 4. c. lxxv. were incorporated by 9 Viet. c. lxiv.; and that, if that were so, the plaintiffs were entitled to all the land claimed-Moody v. Corbett (1); also that the 13 & 14 Vict. c. 83. in no way altered the effect of the 218th section, and, even if it did, leave to abandon was never applied for by the company, nor did they seek extension of time under 11 Vict. c. 3. (the act to give further time for making certain railways). The object of the legislature was to prevent railway companies holding land for any other purpose than that of their undertaking. Here the undertaking being abandoned, the land was, ipso facto, abandoned also.

The judgment of the Court (2) was delivered on the 30th of January by

BRAMWELL, B.-The first question in this case is, whether the provisions in section 218. of 6 Will. 4. c. lxxv., relating to the disposition of lands where the railway is abandoned or given up, are incorporated with 9 Vict. c. lxiv. We are of opinion that they are. The latter act is express: "all provisions, matters and things in the acts relating to the railway, so far as the same are not inconsistent with this act, shall extend to this act." On reading the latter act with section 218. of the former act in it, no inconsistency will be found, consequently that section is incorporated. But it was said that, though that would have been so if nothing but the two acts were in question, yet as the 9 Vict. c. lxiv. only incorporates the provisions of the former act so far as the same are not inconsistent with the

(2) Martin, B., Bramwell, B. and Channell, B.,

:

It was said, on behalf of the defendants, that section 218. only applies to the intended line of the railway, and not to the pieces on either side; and so the railway company, being owners of the pieces of land on each side of the line, are owners of the adjoining land by virtue of this section. But, supposing this point otherwise good, it is met thus by section 127. of the Lands Clauses Consolidation Act those pieces out of the line of railway vest in the adjoining owner, that is (subject to what follows), in the plaintiffs; and then they, thus becoming owners of the superfluous land on either side, are owners of the land adjoining what was to be the line of railway, and so become owners of that. In the result, then, the plaintiffs are entitled to recover, but not all the land. The defendants are entitled to part, for the land may be shortly described as a long strip, crossed at right angles by the intended line. The plaintiffs are owners of the adjoining land on one side of the strip; the defendants of that on the other. They are as much adjoining owners, therefore, as the plaintiffs, and it seems to us that all the plaintiffs are entitled to is so much as lies on their side of a line drawn from the point where their land and the defendants' and the end of the strip meet, along the length of the strip to a similar point at the other end.

For so much, therefore, our judgment is

Practice-Service of Writ of Summons— Common Law Procedure Act, 1852, s. 18. -Defendant out of Jurisdiction-Cause of Action.

The allotment of shares in a limited company, and a subsequent call thereon having been made in this country, a British subject resident in India may be served with a writ in an action for the call under section 18. of the Common Law Procedure Act, 1852, although the call was directed to be paid, and was not paid, to the company's bankers in India.

This was action for calls.

It appeared by affidavit that a branch of the Agra Bank acted as the agents of the Oriental Hotel Company (Limited) at Kurrachee, in Scinde, and that the defendant, a British subject there residing, had originally applied to this branch bank for shares in pursuance of the company's advertisements. He paid the allotment-money into the bank at Kurrachee, and shares were subsequently allotted to him by the directors in London. The defendant afterwards failed to pay a call made in London, the amount of which was directed by the company to be paid into the bank at Kurrachee.

The company issued a writ against him under section 18. of the Common Law Procedure Act, 1862 (15 & 16 Vict. c. 76), which enacts: "In case any defendant, being a British subject, is residing out of

(3) It was afterwards ascertained that all the land in dispute lay on the plaintiffs' side of the line described in the end of the judgment, and the verdict would, therefore, stand generally for the plaintiffs.

the jurisdiction of the said superior Courts, in any place except in Scotland or Ireland, it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the Schedule (A) to this act annexed, marked No. 2, which writ shall bear the indorsement contained in the said form, purporting that such writ is for service out of the jurisdiction of the said superior Courts; and the time for appearance by the defendant to such writ shall be regulated by the distance from England of the place where the defendant is residing; and it shall be lawful for the Court or Judge, upon being satisfied by affidavit that there is a cause of action, which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said Courts, in order to defeat and delay his creditors, to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to such Court or Judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case."

Section 19. enacts: "In any action against a person residing out of the jurisdiction of the said Courts, and not being a British subject, the like proceedings may be taken as against a British subject residing out of the jurisdiction, save that in lieu of the form of writ of summons in the Schedule (A.) to this act annexed, marked No. 2, the plaintiff shall issue a writ of summons according to the form contained in the said Schedule (A.), marked No. 3, and shall in manner aforesaid serve a notice of such last-mentioned writ upon the defen

dant therein mentioned, which notice shall be in the form contained in the said schedule, also marked No. 3, and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad, and by leave of the Court or a Judge, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon."

Gibbons now moved to set aside the writ, on the ground that the breach of contract forming part of the cause of action was the non-payment of the call at Kurrachee, and that therefore the plaintiffs ought not to be allowed to proceed under the 18th section, the whole cause of action not having arisen within the jurisdiction.-Allhusen v. Malgarejo (1).

KELLY, C.B.—I think there should be no rule. The defendant became a shareholder upon and by reason of the allotment which was made in this country and at his own instance. The call, too, which the company seek to recover in this action was made in this country. The cause of action therefore arose in this country in respect of the call and the obligation thereupon constituted, and the non-payment of the call can have no locality. Under these circumstances there is no ground whatever for this application.

BRAMWELL, B.-I am entirely of the same opinion. The cause of action is the defendant being a shareholder, and the call having been made and the defendant not having paid, he is a shareholder in England, the call was made in England and the non-payment has no locality. CHANNELL, B. concurred.

Rule refused.

Attorneys-Miller & Sons, for plaintiffs.

(1) 37 Law J. Rep. (N.s.) Q.B. 169.

Vendor and Purchaser-Shares-Stock Exchange-Liability of Jobber to indemnify Vendor against Calls.

A stock-jobber who purchases shares on the Stock Exchange must, in order to avoid personal liability to indemnify the vendor against calls, give in the name of a bona fide purchaser, who has ordered the shares to be purchased for him, and who can be legally compelled to accept a transfer of them.

Grissell v. Bristowe, 38 Law J. Rep. (N.S.) C.P. 10, and Coles v. Bristowe, 38 Law J. Rep. (N.S.) Chanc. 81, distinguished.

This action, which was brought to recover the sum of 6007., being the amount of two calls paid by the plaintiff in respect of thirty shares in Overend, Gurney & Co. (Limited), was turned into a special case, the material parts of which are as follow:

1. The plaintiff resides at Hull, and the defendant, James Paine, carries on the business of a stock-jobber, and is a member of the London Stock Exchange.

2. The plaintiff had become the purNEW SERIES, 38.-EXCHEQ.

chaser of eighty shares of 50l. each in Overend, Gurney & Co. (Limited), upon which 157. per share had then been paid, and he was also the registered owner of twenty other similar shares.

3. Overend, Gurney & Co. (Limited) stopped payment on the 10th of May, 1866. On the 12th of May, 1866, the transfer-books of the company were closed, and on the 22nd of June, 1866, an order was made by Wood, V.C., for the windingup the said company.

4. On the 24th of May, 1866, the plaintiff instructed Messrs. Sandeman, Dobree & Co., brokers on the London Stock Exchange, to sell for him the said 100 shares; and in pursuance of such instructions they, on the same day, sold the same to the defendant for the next account day, the 30th of May, at 17 discount, and accordingly, on the said account day, they gave the defendant credit in account current for 2007., being the amount of 21. per share on the said 100 shares.

5. The defendant had, on the 11th of May, sold thirty shares in Overend, Gurney & Co. (Limited) for the same account day, the 30th of May, at 12 discount, to one Witten, also a stock-jobber, and a member of the Stock Exchange.

G