V.C. W.] "This court doth declare that the mortgage in the plt.'s bill mentioned, dated the 6th day of June 1860, is a valid security for the balance remaining unpaid of the sum of 7001. and the interest due thereon. And this court doth declare that the plt. is not liable for wilful default for having abstained from working the ship Eagle, in said bill mentioned. And it is ordered that an inquiry be made what has been received by plt., or, but for his wilful default, he might have received in respect of the freight of the said ship. And it is ordered that an account be taken of what is due to the plt. for principal and interest, under and by virtue of the security in plt.'s said bill mentioned; and for his costs of this suit, including the costs of the motion for an injunction made on the 10th day of Feb. 1862; and any costs properly incurred under the provisions of the plt.'s said security; and also including therein the costs of the proceedings taken before the sheriff in Scotland, with reference to the freight of the said ship Eagle; and also the costs of the action of reduction, declarator and damages in Scotland, so far as the same remain respectively unpaid to the plt. ; and also all costs, charges and expenses incurred by the plt. in respect of the custody and management of the said ship Eagle since he took possession thereof; and, in taking the said account, a proper sum is to be allowed, by way of estimate, for the custody and management of the said ship, after the date of the certificate up to the time when the plt. shall be redeemned, or the ship sold, as the case may be, under this decree. On payment of what shall be certified due to plt. for principal, interest and costs, with such allowance as aforesaid, plt. to transfer all his right and interest in said ship, &c. In default, ship to be sold (as court shall direct), and proceeds paid to plt., if more than sufficient, to redeem him, &c. An inquiry as to the rights and interest between the defts. in said ship, and their priorities, &c." THE MESSAGERIES IMPERIALES COMPANY v. BAINES AND OTHERS. Solicitors, Sole, Turner and Turner; Evans and Phillips. Injunction-Ship-Charter-party-Right of muster [V.C. W. cargo at 26s. per ton, as more particularly stated. The charter party was dated the 26th Dec. 1862, and duly signed on that day by said E. T. Sears, the master, and by H. Worms, by his agents Herring and Co. The ship was owned by Americans. On the 1st Jan. 1863 the ship having proceeded to the Birkenhead Docks, the charterers commenced to load coal in her, and from thence continued to do so until the 8th Jan., when the defts. James Baines and Co. informed the agents employed by Mr. Worms that they had purchased the vessel, and on the same day they wrote to Messrs. Herring and Co. as follows: Liverpool, Jan. 8, 1863. "We have purchased the ship Ella A. Clark, and think it only courteous you should be apprised at the earliest moment of that fact, so that you discontinue putting on board any more coals, and those already shipped will have to be reloaded. "JAS. BAINES and Co." The answer was as follows: "London, 9th Jan. 1863. "We are obliged for your courteous attention of yesterday's date, and shall communicate by this post to our principals, &c. "HERRING and Co." On the 8th Jan. the loading of any further cargo on board the ship was stopped by order of the defts. She then had on board 981 tons of coal belonging to plts. On the 10th Jan. notice was served by plts. on defts. that the plts. required that the charter-party should be carried out, and that defts. were not to do any act inconsistent with the performance by the ship of the voyage agreed upon. The defts., however, refused to allow the ship to perform the voyage, and threatened to put the 981 tons of coals out on the quay. The bill then alleged that the defts. had notice of the charter-party when they bought the ship. The defts, however, alleged that the master had not only no authority to charter the ship, but knew when he made the charter-party that he was acting in opposition to the views of his owners in regard to the vessel. The plts. alleged that when the charter-party was agreed upon they only knew that Sears was the master, and that it was the constant usage and established practice for masters of foreign ships in this country to charter their ships. The defts. had caused the ship to be registered at Liverpool in the name of one of the defts., Greaves, as trustee for the firm, as a British ship. This was done on the 9th Jan., and the name of the vessel changea to The Golden Aye, and so entered on the registe The plts. alleged they had already sustained considerable A few days afterwards the defts. purchased the Held, that the master having authority to charter the The case made by the plts.' bill was the following:The plts. were a foreign corporation, having their principal place of business at Paris. On the 26th Dec. 1862 the American ship Ella A. Clark, then at Liverpool, was chartered by the master, E. T. Sears, acting for himself and the owner, to one H. Worms, of Cardiff, as agent of the plts., to proceed with all possible dispatch direct to Birkenhead, and there load in the usual way a cargo of coals, and to convey the same to Point de Galle in Ceylon. The charter-party was negotiated by Messrs. Crawshaw and Co., of London, as agents for the ship, and Messrs. Herring and Co., as agents for the charterer. The freight was to be paid on unloading and right delivery of the The bill prayed for an injunction to restrain the defts. from interfering with the loading of the said vessel, in accordance with the said charter-party, or in any wise interfering or doing any act in reference to the said vessel so as to prevent the plt. having the full benefit of the said charter-party, and that damages might be awarded to plt. against the defts. in respect of the wrongful conduct in reference to such vessel. The plts. then moved for an injunction, and an interim order was made to allow the defts. to file affidavits. An order was also made for the examination of witnesses by a special examiner at Liverpool, and the effect of the evidence on both sides is fully stated in the V. C.'s judgment. Sir H. Cairns, Q. C., Milard (of the Common Law Bur) and Chas. Hall, in support of the motion for an injunction, relied upon the general usage which enables masters of foreign vessels to charter them in this country, and cited De Mattos v. Gibson, 4 De G. & J. 276; Grant v. Norway, 10 C. B. Rep. 665; Duke of Beaufort v. Neeld, 12 Cl. & Finn. 240, V.C. W.] THE MESSAGERIES IMPERIALES COMPANY . BAINES AND OTHERS. [V.c. W. Giffard, Q. C. and Druce, for the defts., contended I seem to say that if it is known there is such a consignthat the master was entrusted to bring the ship to England for sale only, and that he had exceeded his authority in chartering her. The defts. had bought the ship with the concurrence of one of the owners from one Kopperholdt, acting under a power of attorney. They would be put to the greatest inconvenience, having undertaken to sail the ship with passengers to Australia; had entered into engagements with them, and had advertised her to sail on the 15th Feb. next. The plts. could easily procure.another ship for the conveyance of the cargo of coals. If the ship proceeded on her voyage, she might be liable to capture, and thus a total loss accrue to the purchasers. They referred to Pope v. Nickerson, 3 Story's Rep. 476; Boucher v. Lawson, Ca. tem. Hardwicke, 85; Paley on Principal and Agent, 76. No reply. The VICE-CHANCELLOR said:-I confess I feel myself so pressed by the case of De Mattos v. Gibson, that I see no mede by which I can possibly distinguish this case from that, except unfavourably to the present defts. It is not competent for me to fall back on any opinion I may have entertained before that case. That case has gone to the extent of saying that, where there is a contract by a person for the letting of a ship, that contract must not be interfered with by any other person, but this court must hold, as in the case of Lumley v. Wagner, 1 De G. M. & G. 618, that it is important that all contracts which have been entered into should be observed, and that a person who, after entering into a contract, endeavours to defeat it, should be restrained from so doing. The present case, assuming the contract to be good, is as strong as De Mattos v. Gibson, because it is the case of a lawsuit brought by the defts. with their eyes open. There is no dispute that Baines and Co. were perfectly aware of the contract entered into, because they were so told; but they are also told that it was beyond the power of the master to enter into it; they do not take the trouble to make inquiries, either of Sears, the master, or of the persons who had the benefit of the contract, namely the plts., as to what the conditions of the contract were, but they take their chance of being able to prove that the contract was inoperative. They therefore took the ship with their eyes open, whatever might be the consequences. Then it is said, the distinguishing point between this case and De Mattos v. Gibson is, that in De Maltos v. Gibson the contract was by a mortgagor in the first instance, who had the right to enter into it, and that here the right is disputed. Nay, more, the argument goes further than that, because it is said, "Here is a plain and distinct fraud on the owner of the vessel, and being a fraud on the owner of the vessel, that if it were the case of a bill for specific performance in this court of a contract entered into by an agent, the court would not interfere for the purpose of giving specific performance. Of course it may be a question how far the court would interfere in a case of fraud distinctly proved; but I am very far from saying there is anything like fraud in this case. Now, as to the authority that is given to the master, Sears, he has sworn that he had authority from the owner either to sell or to charter. That he had considerable authority from the owner is apparent when you look to all that took place in the course of the transaction, and the conduct that is pursued by Kopperholdt with regard to what did take place. First of all, it stands thus:-The captain wearing to this, I am asked to infer from the letters that it is impossible there can have been any authority of that description from what afterwards took place. What took place is, not the consignment of the ship to Kopperholdt, which might have avoided the difficulty; because, if there had been a distinct consignment of the ship to Kopperholdt, the authorities ment of the ship to him, he acting for the owner, then the case stands in the same position as if the owner himself is resident on the spot. But that is not so. Kopperholdt seems to have had one-sixteenth share. He seems neither to have acted as owner, nor to have dreamt of acting as owner, or as consignee, and although he had power (as I shall mention presently) to take command of the vessel and to displace Sears if he was not so minded, he was not so minded. Then, what really takes place is this. In October a letter is written in Sears' own handwriting as amanuensis to Clark, the managing owner, expressing a strong wish on the part of Clark to sell the ship, and a price is there fixed which is first mentioned at 7000%, but there is nothing like a general authority to Kopperholdt to sell for what he might think fit, nothing to justify Kopperholdt in saying, "I am entitled to sell at all hazards and at all prices." Then comes the next letter, saying, "If you cannot so sell," which implies that he was not to sell at all events in a reckless manner, and the price is fixed as being from 9000l. to 70004, and he says, "If you are unable to sell I wish you would take her. He says he would like me to take her if I could." Then Kopperholdt has a conversation with Sears, and Kopperholdt says that Sears said to him in reference to that passage, “I might take command of the ship at once if I liked,", alluding to the passage in the last-mentioned letter, when the said Joseph Clark says "he would like me to take her if I could." I allude to that because Sears is accused of fraud in making this charter-party, for it is said he made it with a view of retaining the command of the ship. Here Sears tells Kopperholdt, “You are at liberty to take the command of the ship at once if you like." Kopperholdt does not choose so to do, and so things remain for three weeks. Then they have a conversation on Sunday the 21st Dec., when dining together, and there the expression is a very remarkable one. Sears then says, "If you do not get rid of the ship I shall charter her," and Kopperholdt says, I said in reply, No, don't do that; I am here to sell her." That certainly does not strike me as an expression conveying any idea or impression on Kopperholdt's part that there was no authority to Sears to charter her. He does not say, "I forbid your doing that; you have no authority to do it." And what is more remarkable is the way in which he expresses himself to the broker, which is in the next paragraph of the affidavit. He says, "I said that if I did not sell the ship, I had no objection to let her go back to New York, or New Orleans, but she must go back to the States," which I must read thus: "If you do charter her at all, charter her either to some port or other of the States," still implying that he (Sears) was the person to charter her. That is still more apparent if you read a little further on; because, when he calls upon the broker, he says, “I told the broker the ship was for sale and not for charter, and was not to be chartered, and that Captain Sears was to be put off, and that if Captain Sears came to him, wanting to charter, he was to send for me." That does seem to me to be exceedingly like a recognition on his part of what is laid down as the general rule and custom in this trade. He says: "I felt he had power to charter her; I said, Do not do that; it is an unreasonable thing to do.' I went to the broker to make sure, and said to the broker, If he comes here, put him off; do not tell him he is absolutely forbidden to charter and has no power to do so; but put him off, and send for me in order that I may interfere and prevent the thing being done." I must say, all that, so far from being evidence that Captain Sears has not power to charter the ship, seems to me rather to corroborate his view that he had a power to charter her, or rather, to corroborate 6 Vol. 7.] V.C. W.] THE LAW REPORTER. THE NORTH-EASTERN RAILWAY COMPANY v. CROSLAND. 66 You [CHAN. Injunction in the terms of the prayer of the bill. Reported by THOMAS BROOKSBANK, Esq., COURT OF APPEAL IN CHANCERY. Barrister-at-Law. Thursday, Nov. 20. (Before the LORDS JUSTICES.) THE NORTH-EASTERN RAILWAY COMPANY v. the view that, as far as third persons were concerned, I charter, according to the course of general trade, he might be in such a position to charter her that this it would not be allowed. But this ship came gentleman could not interfere with it. I am now con- with a charter, and that would be matter which, if the As to fraud, or parties were put upon inquiry at all, they would have sidering whether there is any fraud. its being done with a view of retaining the command found. They would have found whether it was the of the ship, I have already dealt with that by general custom or general habit for the master of the saying that he offered the command to Kopper- ship to charter. If she came with a charter, in all to take probability she would sail back with it. I think, holdt, and that Kopperholdt declined it, and he wished to bring the matter to a therefore, the evidence, as far as it goes at present, crisis, and not to have the ship hanging about, is strong to support a custom of that description; but nothing being done either in the way of sale or em- whether this gentleman had authority or not in the ployment of the ship. What takes place afterwards is first instance, he was allowed to deal with it, though the strangest of all, and the fraud appears to me to be with remonstrance, and after he had dealt with it for the other way, if you take Kopperholdt as the owner, many days, with a perfect knowledge of all-at least or as representing the owner, because Kopperholdt is he was in such a position that he must be taken to told of it, and he says he is very much surprised and have been affected with knowledge of all that had remonstrates, and objects strongly to what Sears has taken place by the charterers with regard to the done? But what is subsequently done? He never loading of the vessel-he allows all this to go on without once approaches the charterers to say, "You must any communication with the charterers. I think the not hold us to this contract;" but he goes to Sears comparative convenience or inconvenience is equally and says, 'I had rather hoped I should sell with the balanced. I cannot measure the difference. It is as charter, it would be a good thing, and it might pos- convenient to the plts. not to have a ship for their It appears to me that he must be sibly answer;" and that all supposes he was owner. coals, as it is to these gentlemen not to have a ship for Would it be possible for him to say afterwards that he their passengers. was not bound by the contract? He knows the con- held to have acquiesced, as in De Mattos v. Gibson, tract had been made; he knows the purchasers are and that I ought to make a similar order to that acting upon it; he knows, or must be taken as know- which was there made. ing, it is possible and probable that they would ship their coal in large quantities-they say they had shipped nearly a thousand tons of coal in the vessel-knowing all that, he lets the thing hang on until he finds it would be more convenient to take some other course. As to the persons chartering the ship, I apprehend they would have an answer at once, have allowed this to go on without interfering in any way, and you have allowed us to incur expense." Therefore it seems to me that as regards the owners they are as completely bound as the owners were in De Mattos v. Gibson. Then when he sells to the Messrs. Baines they buy a lawsuit, take their chance, and they find this has been done, and so far from being unauthorised, it appears to me that there is a subsequent ratification in favour of the charterers, from the fact that this gentleman continues to acquiesce in the contract after he has full knowledge that the contract has been made for several days, he knowing it on the 26th Dec., and on the 1st Jan., still saying, "I am in hopes the thing may turn out well (that is what it comes to) and I may sell it with the charter upon it." In that state of circumstances it is hardly necessary to consider the other doctrine raised as to the captain's power, because it appears to me that this gentleman has ratified what has been done; but, at the same time, if it were necessary, the evidence seems to me to preponderate largely in favour of the captain's power, because the evidence is this: One gentleman says, "I have chartered 130 ships in a year, and I have always treated the captain as the authorised agent." Then Mr. Giffard says: "But that is no proof of the custom, unless you show he was allowed to be agent when the authority was disputed." I apprehend it is a strong fact, when you find that in a case not like the case of a broker who must have a special power to sell the ship, but in a case where the question is whether the captain who puts a man into possession of the vessel is or is not authorised to make a charter-party, the best authorities we have (both Abbott and the American authority, Story) seem to treat him as having power so to do when the owners are not present either in person or by virtue of their having consigned to an agent who represents them, and who therefore would be the proper persons to apply to. He comes to a foreign port; he is in possession of the ship, and the ship must either go back without a charter at all, or he must charter it; there is no other person to enter into a charter-party at all if he does not. Mr. Giffard contends, that when she comes without CROSLAND. Railway company-Purchase of lands-Right to construct tunnel-Minerals on adjacent lands—Right to support. purpose A railway company bought lands for the sole of constructing their railway, and also the right of Under their Act the minerals in making a tunnel. or under the lands so bought were expressly excluded, but it was enacted that the owners might work minerals, doing no damage to the railway. The deft., who derived his right from the vendors, gave notice to the company of his intention to work for minerals within forty yards of the line and tunnel, and in a manner which it was admitted would endanger the line of railway: Held (affirming the decision of Wood, V. C.), that an injunction to restrain him from so doing must be granted, as the company was entitled to the lateral and vertical supports of the adjacent lands, under the contract with their vendors. The railway company having by the terms of their purchase precluded the owners of lands from working minerals in a way injurious to their property, cannot, in the absence of statutory provision to that effect, be compelled to purchase those minerals of the owners. This was an appeal by the deft. Mr. William Crosland against a decision of Wood, V. C., whereby his Honour granted an injunction to restrain him from working certain minerals referred to in the notice hereinafter stated, so as to endanger the plts.' railway and works. : The circumstances of the case were these :By an Act of Parliament passed on the 29th May 1830 (11 Geo. 4, c. 59), the Leeds and Selby Railway Company was incorporated, and by the 30th section of such Act it was enacted as follows: "That nothing in this Act contained shall extend CHAN.] THE NORTH-EASTERN RAILWAY COMPANY v. CRosland. to give the said company any mines, or any coals, stone, slate, or other minerals under any land purchased by the said company under the provisions of this Act, except only so much of such coals, stone, slate, or minerals as may be necessary to be dug or carried away, or used for the purposes of this Act; but all such mines, coals, stone, slate, or minerals shall be deemed to be excepted out of the purchase of such land and may be worked by the respective owners or lessees thereof under the said lands, or the railway or other works of the said company, as if this Act had not passed, so that no damage or obstruction be thereby done or occur to or in such railway or works. Provided, nevertheless, that in case any damage or obstruction shall be so done or occur to or in such railway or works, the same shall be forthwith repaired or removed (as the case may be) by and at the expense of the respective owners or lessees of such mines, coals, stone, slate, or minerals as aforesaid, and if the same shall not be forthwith done, it shall be lawful for the said company to repair such damage, or to remove such obstruction, and to recover the expenses attending the same, in case of refusal or neglect to pay the same within fourteen days after demand thereof, by distress and sale of the goods and chattels of such respective owners or lessees, or by action of debt or on the case in any of his Majesty's courts of record at Westminster." Soon after, the Leeds and Selby Railway Company contracted with one Henry Hall for the purchase of lands of which he was seised in fee, and the price settled to be paid was 19047. 3s. 6d., and by a deed dated the 30th March 1833, Mr. Hall and Grace his wife granted to the company, their successors and assigns, the said lands, and also the right and privilege of making, and for ever hereafter maintaining, an arched tunnel or excavation through and under the remainder of the said close, and through and under all that other close of him the said Henry Hall," with the right and privilege of ingress, egress and regress to and from the said closes or any of them, "to hold the premises to the said company, their successors and assigns for ever, according to the true intent and meaning of the said Act." The company also contracted with the committee for the execution of charitable uses within the borough of Leeds, for the purchase of easements in certain lands of which the committee were owners in fee; and by deed, dated the 1st Aug. 1835, the said committee granted to the company the privilege of making, and for ever maintaining, an arched tunnel or excavation, and the like right and privilege of ingress, egress and regress to their lands, "to hold and enjoy the said rights and privileges thereby granted to the said company, their successors and assigns for ever, according to the true intent and meaning of these presents." Similar privileges under other lands, belonging to other persons, were also purchased by the company and granted to them by other deeds dated the 31st Aug. 1835 and the 29th Sept. 1835. The company then proceeded to make the tunnel and other works through and over the lands mentioned, and the same were finally completed, and the railway was opened for use in the course of the year 1855. By an Act of Parliament passed on the 23rd May 1844 (7 Vict. c. 21) the Leeds and Selby Railway Company was empowered to sell, and the York and North Midland Railway Company to purchase, the first named railway, and it was enacted as follows: "Sect. 6. That from and immediately after the payment of the said purchase-money, and such publication of notice thereof as aforesaid, the said Leeds and Selby Railway, and all stations, houses and other buildings, wharves, weighing machines, and other works belonging thereto, and the ground and soil thereof respectively, and all and every other the lands, tene [CHAN. ments and hereditaments, gifts, easements and appurtenances whatsoever, of or to which the said Leeds and Selby Railway Company were by virtue of the said recited Acts, or by any other means whatever, seised, possessed, or entitled at law or in equity, immediately before the payment of the said purchase-money, shall belong to and shall by virtue of this Act be absolutely vested in the said York and North Midland Railway Company, and the undertaking of the Leeds and Selby Railway shall thenceforth become and form part of the undertaking of the York and North Midland Railway, subject nevertheless and without prejudice to the several mortgages, charges and incumbrances which at or immediately before the time of such vesting shall have been upon or affecting the said Leeds and Selby Railway, or any of the property of the said Leeds and Selby Railway Company. "Sect. 7. That all contracts, agreements, conveyances, mortgages, bonds, covenants and securities made or entered into with, to, or in favour of, or by or for the said Leeds and Selby Railway Company, before such payment of such purchase-money and the publication of such notice thereof as aforesaid, shall from and after such payment and such publication of notice thereof, be and remain as good, valid and effectual in favour of, against and in reference to the said York and North Midland Railway Company, and may be proceeded in and enforced in the same manner by or against the said York and North Midland Railway Company to all. intents and purposes as if the said York and North Midland Railway Company had been a party to and executed the same, or had been referred to or named therein, instead of the said Leeds and Selby Railway Company." This purchase was also completed, and later, by the North-Eastern Railway Company's Act 1854, the York and North Midland Railway Company and the Leeds Northern Railway Company were dissolved and united with the York, Newcastle and Berwick Railway Company, and it was enacted that that company and the amalgamated companies should be thenceforth styled and designated as the North-Eastern Railway Company, and all the estate, rights, privileges, powers and authorities of the dissolved companies were vested in the North-Eastern Railway Company; and by sect. 7 it was enacted, "that all deeds, conveyances, grants, leases, purchases, sales, contracts, mortgages, bonds, covenants and securities which before the passing of this Act shall have been executed, made, or entered into, by, with, to, or in relation to the dissolved companies, or either of them respectively, and which shall be in force at the passing of this Act, and all obligations and liabilities which before the passing of this Act shall have been incurred by, or which, but for the passing of this Act, might or would have attached upon the dissolved companies, or either of them respectively, shall, subject to the provisions in this Act contained, be as valid and of as full force and effect, to, for, upon, against, or in relation to the North-Eastern Railway Company as if the same had been executed, made, or entered into by, with, to, or in relation to, or had been incurred by or had attached upon that company by name." On the 21st Jan. 1862 the secretary of the plts. received from the deft. a written notice, to the following effect, accompanied by a plan : - "I hereby give you notice that I am the proprietor, or lessee, of the beds or seams of coal commonly called the Crow Coal and the Black Bed Coal, and also of the bed of ironstone, commonly called the Black Bed Ironstone, lying and being under and extending forty yards on each side of the railway, formerly called the Leeds and Selby Railway, and now forming part of the North-Eastern Railway, from a line under the centre of the road called Accommodation-road, in the town Vol. 7.1 THE LAW REPORTER. THE NORTH-EASTERN RAILWAY COMPANY v. CROSLAND. ship of Leeds, in the county of York, where the said road crosses over the said railway, and marked on the plan, &c., &c.; and I further give you notice that I am desirous of working the same beds and seams of coal and ironstone, and that I intend so to do." After some letters had passed between the parties, the pits.' solicitors, on the 27th Jan. 1862, wrote to the deft.'s solicitors as follows:-"Are we to understand that Mr. Crosland intends to proceed to work out the coal and ironstone under the Leeds and Selby Railway, as mentioned in his notice, so as in any way to affect its safety or the stability of its works? If so, that cannot be allowed, both on private and public grounds. If he is merely going to make passages and driftways through, leaving ample supports, there will, probably, be no objection to his works; but, in that case, we shall feel obliged by your sending us a plan of the proposed workings, that we may consult the company's engineer upon it. In Hall's case we observe that compensation was paid in the sum awarded for all mines and minerals the company might take; though that is not stated in the conveyance, and probably does not affect the matter." The deft.'s solicitors replied on the 30th Jan. that their client's notice was given under 6 Will. 4 (1836), with a view to give the company the option to purchase the minerals, and they drew attention to the fact that by far the greater portion of the minerals in question were under the tunnel, and that the company only purchased a right to make the tunnel through the land, and did not take the land itself. The bill charged that the company acquired by their purchases a right to the support of the minerals whether immediately underneath the respective lands which were purchased, or easements only in which were purchased, and the 20th paragraph of the bill particularly referred to by Knight Bruce, L.J. in his judgment, was in these terms: "The deft. derives his title to the minerals which are referred to in his said notice, and which he intends to work, from or under the said several grantors who executed the said deeds of the 30th March 1835, the 1st Aug. 1835, the 31st Aug. 1835, and the 29th Sept. 1835, who at the respective times when they executed the said grants were respectively the owners in fee-simple of the mines under the lands to which such respective grants extend, and of the minerals under the lands extending forty yards on each side of the line of railway made over and through the lands to which the said respective grants extend." The plts. alleged that they had enjoyed the support of the minerals referred to in the notice for upwards of twenty years without interruption or disturbance from any person until the notice was given, and the bill prayed that the deft. might be restrained from working the minerals referred to in his said notice, or any other minerals, to the support of which the plts. were entitled, in such a manner as to endanger any part of the said railway or works. The cause was heard upon the plts.' motion for a decree in April last, when the learned V. C. granted an injunction, being of opinion that the 30th section of the Act of 1830 (11 Geo. 4, c. 59) gave the plts. a right to vertical support, which was imported into the contract, and that the law gave a right to lateral support flowing out of the contract. The Purchase Act, 7 Vict. c. 21, in transferring the contract as it stood, carried with it all rights and obligations, whether expressly conferred by it, or flowing out of it by the operation of law. [CHAN. Amphlett, Q. C. and Prendergast appeared for the deft. appealing. The following authorities were referred to: The Caledonian Railway Company v. Sprott, 2 The Caledonian Railway Company v. Lord Bel- Reg. v. The Leeds and Selby Railway Com- Humphries v. Brogden, 12 Q. B. 739; The Dudley Canal Company v. Graysbrook, 1 The North-Eastern Railway Company v. Elliott, Lord Justice TURNER said:-I am entirely of the same opinion. The first question which is argued here is, that by the effect of the 9th section the provisions That of the Act of 1836 are brought into operation as to the purchase made under the Act of 1830. 66 not repealed, altered, varied, or depends on the words of the Act, that this Act shall apply so far as The only argument which, it appears otherwise provided for by this Act, or by any statute." to me, can be used on those words is, it may be said, that this is not provided for by the Act of 1830, or by the statute, because it is the result of a common law right, and not of any statutory right Then, which is conferred by the statute of 1830. if that be so, the 4th section of the Act comes into operation, and by the 4th section of the Act of 1844, as I understand it, nothing which is done under the former Acts is to be annulled or prejudiced or Sir Hugh Cairns, Q.C., Hobhouse, Q.C., and William-affected by this Act. Now, it is impossible, according son supported the decree. The deft. appealed. It was not denied that the proposed working of the minerals would endanger the stability of the railway, and the estimated value of the minerals intended to be worked was 11,500l. to the circumstances of the case, to say that the pur◄ |