TEEVILLIAK KNIGHT E. H. GALLOWAY - William Flack Blogwflack.com/wp-content/uploads/2019/12/Galloway-v-Mayor... · 2019. 12. 5. · MAYOB AND During the session of 1864, a bill, subsequently

34 ENGLISH AND IEISH APPEALS. [L. E,

186G in order that the rights of the next of kin may be adjudicated

TEEVILLIAK upon; that the order be re-enrolled, and brought up again to this

KNIGHT House by a supplemental petition, without the necessity of any

~— new appeal.

Solicitors for the Appellants: W. J. Hill, E. F. Seahj.

Solicitors for the various Respondents : Benboiv, Tucker, & Salt-

well; Crawley, Arnold, & Green; and Shilbech & Griffith.

1866 E . H . G A L L O W A Y . . . . . . . . . . A P P E L L A N T ;

March AKD9 | y 3 ; T H E MAYOE AND COMMONALTY OP

LONDON . . . . . . . . . . RESPONDENTS.

ET E CONTRA.

Corporation—Public Improvements—-Railway Bills—Compulsory Powers—Agreement to sell land made before Act enabling its purchase.

Where persons have special powers conferred on them "by Parliament foreffecting a particular purpose they cannot be allowed to exercise those powersfor any purpose of a collateral kind. Therefore, a company authorized(making due compensation) to take compulsorily the lands of any person fora definite object may he restrained by injunction from any attempt to take themfor another object.

Where the Legislature has conceded power to a body of adventurers for acertain purpose (as for example the formation of a railway) such a body mustshew some ground for the concession, and the Legislature has no concernwith its means for obtaining the funds to carry its declared objects into effect,and in order to effect them it must not exceed the limits of its powers. Butthe case is different where an existing public body, such as the corporation ofa city, is entrusted by the Legislature with the duty of making public im-provements in its city, and the powers thus entrusted to it for such a purposewill not be subject, as in the other case, to a strict and restrictive construc-tion.

Where, therefore, the Mayor and Commonalty of the City of London hadIbeen intrusted with powers to make certain public improvements in theCity, and for that purpose had been authorized compulsorily to take land, to-raise money on the credit of it, and to sell superfluous land to pay off thedebt, the Act which gave them those powers, though only thus impliedlyauthorizing them to take more land than might be absolutely necessary toeffect the desired improvements, might be construed favourably to them,and lands so taken might be treated as lands taken " for the purposes of theAct,"

A contract made by tlio Mayor, &c, with another body to obtain lands

VOL. I.] ENGLISH AND IEISH APPEALS. 35

under the Act, and to sell such lands to that other body as soon as it hadpassed, would not be illegal. .

Before the royal assent was given to an Act of this description tho Mayorand Commonalty entered into a contract with a railway company to sell tothe company certain lands which the Mayor and Commonalty expected to beauthorized by the Act to take. When the Act had been passed, notice totake the land was given, and the taking was resisted by the land owner.A subsequent Act recited the contract, and declared the company entitled tothe benefit of it. Notice to take the land under this later Act was givenby the Mayor and Commonalty to the land owner, but the notice expresslyreserved to them all their rights under the former Act:—

Held, that the original contract was valid, and that this later Act was iiparliamentary recognition of it.

A HESE were appeals against decrees in suits in which RichardHodgson Galloway was the Plaintiff, and the Mayor, Aldermen,and Citizens of London were the Defendants. In the second suitthe Metropolitan Railway Company had been introduced as aparty (1).

In the year 1847, certain improvements were projected in thestreets and thoroughfares of the City of London, and an Act calledthe London City Improvement Act, 1847, was passed, giving to theMayor and Citizens certain powers with a view to carry these im-provements into effect. This Act was afterwards known as theModel Act. In the year 1854 a company was created with autho-rity, by the Metropolitan Railway Act, 1854, to construct a railway,now known as the Underground Railway, which was to come intothe City near what are now called Victoria and Farringdon Streets.The 94th section of this Act empowers the company to makecontracts with the Mayor and Corporation of London for the pur-chase and sale of lands in reference to the purposes of the Act.Another Act, passed in 1859, authorized the Mayor andCitizens tosubscribe to the undertaking for any sum not exceeding £200,000.They did so subscribe. By this Act of 1859 the railway companyobtained in fact powers to take Mr. Galloway's property on thenorthern side of West Street, Smithfield. Those powers were notexercised; they expired in the commencement of August, 1862. In1860 three Acts were passed for the purpose of making alterationsin the City. The first, called the Metropolitan Railway Act, 1860,related to the company; the second was calledthe Metropolitan

(1) 4 N. R. 77, 422 ; 5 Id. 355.1 E 2

18CG

v

MAYOR ANDttauJioNAi/nr

31! ENGLISH AND IRISH APPEALS. [L. E.

i860 Meat & Poultry MarJcet Act, 1860. The object of this Act was toGALLOWAY create a meat and poultry market at Smithfield, and to furnish it

MAYOR A w i t h proper approaches. I t incorporated many of the provisions

COMMONALTY of the Lands Clauses Consolidation Act, 1845, and the provisions of—- ' the London City Improvement Act, 1847, and it empowered the

Mayor and Corporation to enter into arrangements with the rail-way company as to the approaches. By clause 18 it forbade theopening of the market " unti l a road sixty feet in width shallhave been made and opened from Victoria Street, at or near WestStreet" in St. Sepulchre's parish, to the intended market. Thethird of these Acts was called the London Bailway & StorehousesDepot Act, 1860, and authorized the construction of a street toconnect the Metropolitan Railway with the meat market. Boththe two latter Acts received the royal assent on the 13th ofAugust, 1860. Three other Acts, called the London BailwayDepot & Storehouses Act, 1862; the Metropolitan Railway Act, 1862;and the Metropolitan Meat & Poultry Market {Western Approach)Act, 1862, passed in the session of that year. Their common objectwas, to facilitate the arrangements between the Corporation andthe company, and to give the Corporation additional powers as totaking land, &c. The first two passed on the 30th June, 1862;the last on the 29th July, 1862. All the lands of the Plaintiffon the -north and south sides of West Street were included in theseActs.

While these Acts were passing through Parliament, and beforethey had received the royal assent, namely, on the 26th of June, 1862,the Defendants entered into an agreement with the MetropolitanRailway Company for the sale to the company of certain landswhich that company required for the purposes of its undertaking.Among these were pieces of lands on both sides of West Street,partly freehold and partly held by the Plaintiff under a lease fromthe Dean and Chapter of Ely. The agreement recited the bill thenpending in Parliament (afterwards called the Metropolitan Meat &Poultry MarJcet {Western Approach) Act), and by Article 2 declared,'" If the pending bill shall pass into a law, the following articlesshall have effect." Article 3 declared that " The Corporation withthe utmost practicable despatch will purchase and procure, to bevested in themselves, so much of the lands shewn on the annexed

AND

•VOL. X] ENGLISH AND IRISH APPEALS.

plan, and comprised," &c. (giving the description), " as is necessary 18G(!

for enabling the company to have the benefit of articles," &c, &c. GALLOWAY

Article 10: "The Corporation will give to the company possession MAYOB

of such parts of the land," &c. Article 1 1 : . "The Corporationwith all reasonable despatch will convey to the company the wholeof the land shewn on the annexed. plan, and lying northward ofthe intended street, and comprised within the red border, in theannexed plan, with the right," &c. The lands thus to be conveyedincluded the lands of the Plaintiff.

.•' On the 30th of April, 1863, the Defendants served the Plaintiffwith a notice to take his lands under the Metropolitan Meat &Poultry Market (Western Approach) Act, 1862, and afterwards, asthey did. not agree about the price which he asked (£65,000),they took proceedings for having the value assessed by a jury. Onthe 6th of February, 1864, the Plaintiff filed his bill in Chancery,praying that the Defendants might be restrained from carryingthis intention into effect, alleging that his lands were not requiredby the Defendants for the purposes authorized by the Act, but forthe purpose of reselling to the company, and praying that theymight be restrained from misapplying in any way the powersgiven them by. that Act so as to affect the Appellant. On the19th of February, 1864, a motion was made before Vice-ChancellorWood for an injunction. The Vice-Chancellor was of opinion thatthe Plaintiff was not entitled to an injunction, but, as it wasdeclared that the case would be carried to a Court of Appeal, theinjunction was granted for a month. On the 26th of April, 1864,the Lords Justices on appeal granted the injunction until theportion lond fide required to be purchased for the purposes of thoAct should have been ascertained, and until the Defendants shouldhave given the Plaintiff proper notice, under the last named Actof 1862, of their intention to take the same, and a proper oppor-tunity of coming to an agreement with them as to the compen-sation. On the 28th of July, 18G4, the cause came on for hearingbefore Vice-Chancellor Wood, who, though adhering to his originalopinion (acting on that of the Lords Justices), pronounced a decreedeclaring that the agreement had been entered into previous tothe passing of the Act, and that the notice was not given in dueexercise of the powers vested in the Defendants under the Act,

38 ' ENGLISH AND IRISH APPEALS. [L. E.

1866 and the injunction was ordered to be made perpetual. The Cor-GALLOWAY poration appealed against this decree.MAYOB AND During the session of 1864, a bill, subsequently known as theCOMMONALTY Eolborn Valley Improvement Act, 1864, was introduced into Parlia-

— ment. The Plaintiff opposed the bill, but it passed, and includedamong its sections one (37th) which was in the following terms:—•" And whereas certain lands may be taken under the powers ofthis Act which were delineated on the plans and described in thebooks of reference mentioned in the 4th section of the MetropolitanMeat & Poultry Market (Western Approach) Act, 1862, and in respectof which lands an agreement was, under the authority of that Actand the Metropolitan Railway Acts, entered into between the saidMayor, Commonalty, and Citizens, and the Metropolitan Railway.Company; and it is expedient that the rights of that companyunder such agreement should be preserved: Therefore nothingin this Act contained shall prejudice or affect the rights ofthat company under the said agreement, but all the covenantsand provisions thereof shall be as applicable to the same lands,if purchased under the powers of this Act, as they would havebeen if they had been purchased under the powers of the saidMetropolitan Meat & Poultry MarJcet (Western Approach) Act,1862."

On the 30th of July, 1864, the Defendants served the Plaintiffwith a notice, purporting to be a notice under this last Act, totake the lands previously the subject of controversy; but by thisnotice they expressly reserved to themselves " their right totake the said premises and every part thereof under the Act ofParliament having the short title of the Meat and Poultry, &c,Act, 1862 ;" adding "that this notice is given without prejudiceto the rights of the said Mayor, Aldermen, and Commons, underthe said Act, and without prejudice to their rights and claims ina certain suit in Chancery in which you are Plaintiff and they areDefendants."

The Plaintiff alleged that this notice was an abuse of thepowers of the Act of 1864, and a correspondence ensued upon thesubject, when, as the parties could not come to any agreement,the Plaintiff, on the 14th of October, 1864, filed a second bill inChancery against the Defendants, in which he alleged that the

POL. I.] .ENGLISH AND IRISH APPEALS. 39

notice of the 30th of July, 1864, was a mere device to evade the 186Geffect of the former suit; and he prayed for an injunction to pre- GALLOWAY

vent the Defendants from taking the lands under this last Act andnotice, and from carrying into effect, under colour of this last Act, COMMONALTY

, OB LONDON.the intended transfer to the railway company m execution of theagreement of June, 1862, or for any purpose other than that ofthe execution of the works authorized by the last Act of Parlia-ment ; and that it might be declared that this notice was not givenin the due exercise of the powers conferred by the said Act. Theprayer of the former bill, modified by the final decree thereon,was in substance repeated.

The Defendants put in an answer, which alleged that theydesired to take the Plaintiff's lands for the purposes of theirseveral Acts; insisted on the validity of the agreement of June,1862, and that of the notice of July, 1864; and set forth variousreasons for the purpose of shewing that they could not, withouttaking the lands of the Plaintiff, duly carry into effect the pur-poses of the Act of 1864. They also stated that they had pur-chased from the Dean and Chapter of Ely the reversion in feesimple of the lands held by the Plaintiff under lease from theDean and Chapter; and denied that the last notice was a deviceto evade the effect of the former decree.

On the 19th of January, 1865, the Plaintiff moved before theMaster of the Rolls for an injunction to restrain the Defendants fromacting on their last notice. This motion was agreed to be treatedas a hearing of the cause, and on the 13th of February his Honourmade his decree dismissing the bill with costs. The case wastaken by appeal before the Lords Justices, who thought that therailway company ought to be made a party to the suit, which•having been done, and an answer having been put in, and evidencetaken, the cause came on for hearing before their Lordships, and,on the 9th of May, 1865, they made a decree, in substanceaffirming that of the Master of the Rolls, and ordering thePlaintiffs second bill to be dismissed, but without costs. Themain ground of this decree was, that the 37th section of theHolborn Valley Improvement Act, 1864, was a Parliamentary recog-nition of the validity of the agreement of June, 1862.

Mr. Galloway appealed against that decree.

40 ENGLISH AND IBISH APPEALS. [L. R

wee Mr. Bolt, Q.C., and Mr. Selwyn, Q.C. (Mr. Bagshawe was witlGALLOWAY them), for the Appellant:—

I AXD " When powers are given for the compulsory purchase of lands^ y must be exactly followed, and' the land must .be taken bonafide for the purposes of the railway: Stockton and Darlington Com:pany v. Brown. (1) It cannot be said that that was so here. The•agreement of June, 1SG2, shewed a purpose which had not'evenbeen contemplated by the Act, and the agreement being made beforethe Act was passed, was made without any pretence of" being madeunder its authority. It was absolutely void. The principle inthe case of the Stockton and Darlington Railway v. Brown—thatthe. authority to take the land must be exercised bond fide—wasenforced strictly by Vice-Chancellor Kindersley in Flower v. TheBrighton Railway Company (2), in which he held that where acompany obtained powers to take such lands as were thoughtnecessary for the purposes of the railway, the affidavit of theengineer of the railway that certain land " was or would be wantedfor the purposes of the company" was not sufficient, but that thepurposes must be specified, so that the Court might judge if theland was bond fide required. When that had been done, but nottill then, the injunction against taking the land was dissolved.Here the purposes were clearly those of the railway company, andnot those of the Corporation with the object of effecting the pro-posed City improvements. These objects are very different. Therailway company wants the lands with a view to a profitableprivate speculation; the Respondents only want the lands to usethem for purposes of public benefit. In a railway case the extentto which lands may be taken is defined and limited by the gaugeand the datum line. There is no such limitation placed by theLegislature upon a public body taking lands for the purpose ofmaking new streets and public improvements, but the unrestrictedpowers given in one case cannot be claimed for the other : Webh v.The Manchester and Leeds Railway Company (3). The Legislaturenever. intended that these powers given to a Corporation forexecuting public improvements should be used for the advan-tage of mere private speculators. They had been, so used here—

(1) ,9 H. L. Cas. 240. (2) 2 Drew. & S. 330.(3) 4 My. & O. 110.

VOL. I.] ENGLISH AND IE1SH APPEALS. 41

thus, in fact, defeating the restrictions which the Legislature 1866itself had imposed on the taking of land for the purposes of the GALLOWAY

railway. This agreement of June, 1862, had not been communi- M A YJE AM>

cated to the Legislature while the bill of 1862 was pending, and ^ ° ™that was a fraud on the Legislature.

Sir S. Cairns, Q.C. (Mr. Clement Swanston was with him), forthe Eespondents, the Mayor and Commonalty of London :—

Nothing has been done here that is not in accordance with theintention of the Legislature as expressed in all the Acts of Parlia-ment relating to the projected improvements in the City ofLondon. These Acts must be construed favourably for the Corpo-ration. There is a great distinction between Acts grantingcompulsory powers to joint stock companies in respect of what arereally private speculations, and Acts empowering and requiringcorporate bodies, having no private interests to promote, to carryinto effect public improvements. In the latter case, in order toavoid taxing the public, there may well be permission granted tothe Corporation to take more land than is actually necessary forthe purpose of making the specified improvements, and, by a saleof the superfluous land, rendered more valuable by the improve-ments themselves, to raise funds for the execution of a greatpublic work. Some of these Acts show that the Legislatureintended that these Eespondents should have such a means ofproviding for expenses. They were empowered to demise and tosell, and the powers were granted in terms which were utterlyinconsistent with the idea of restricting them to the taking ofno more land than was necessary for the mere making of theimprovements. There was not a clause in any one of their Actswhich confined them to a mere defined line of road, nor were theyin any way restricted or fettered as to the mode of disposing of theland which, after making the improvements, they should find tobe superfluous.

The Attorney-General (Sir B. Palmer) (Mr. Jessel, Q.C., and Mr.H. F. Bristowe, were with him) for the Eespondents, the directorsof the Metropolitan Railway Compamj:

The agreement was perfectly valid, and no objection exists as

42 ENGLISH AND IE1SH APPEALS. [L. E.

1866 to its enforcement merely because it was made in anticipation ofGALLOWAY the Act which directly gave to the Corporation the power of

MAYOB AND disposing of the superfluous lands: The Eastern Counties RailwayCOMMONALTY Company v. Rawkes (1). Where everything required by an Act had

been done before the compulsory powers given by that Act had ex-pired, but those powers had not been actually enforced, it was stillheld that they might be put in force: Sparrow v. The Oxford,Worcester and Wolverhampton Railway Company (2). A differentopinion, intimated by Vice-Chancellor Shadwell, in Broehlebank v.The Whitehaven Railway Company (3), was strongly doubted inthe same case by Lord Cottenham, and was declined to be adoptedin the Queen v. The Birmingham and Oxford Junction RailwayCompany (4), by the Court of Queen's Bench, and the ExchequerChamber (5); and as to the purpose for which the land was required,Vice-Chancellor Turner, in Gather v. The Midland Railway Com-pany (6), held, that where a railway company had a right, by thecompulsory powers of its Act, to take land for the " railway andworks," those powers warranted the taking of land for the buildingof a railway station, for the general Railway Act, considered asincorporated with each special Act, authorized the making ofstations as well as the making of the line itself. In such a case itwas clear that the words must not be strictly, but ought to befairly construed. And where what was done was clearly withinthe objects of the Act, the transaction would not be necessarilyvoid, but might be confirmed: Foss v. Harbottle. (7) Here thatwas the case, and, in addition, the 37th section of the HolbornValley Act completely confirmed the rights of the company underthe agreement of June, 1862.

Mr. Rolt replied.

April 20. THE LOBD CHANCELLOR (Lord Cranworth) :—

My Lords, these were two appeals from two decrees made in twosuits relating to the same land, and as the two were intimately

(1) 5 H. L. Cas. 331. (5) 15 Q. B. 647, n.(2) 9 Hare, 436. (6) 2 Phill. 469.(3) 15 Sim. 632. (7) 2 Hare, 461—492.(4) 15 Q. B. 634.

VOL. L] ENGLISH AND IRISH APPEALS. 43

connected, both appeals were heard together, and both now stand 1866

for judgment. GALLOWAY

Mr. Galloway, who was the Appellant in both suits, is the owner ^of lands and buildings, part ly freehold and part ly leasehold, situatenear Smithfield, to the nor th of West Street. H e has alsoproperty to t he south of the same street, bu t as to tha t he raisesno question. [His Lordship here stated the facts of the case, andthe course of t he proceedings].

The case of the Appellant, Mr. Galloway, rested on a principlewell recognized, and founded on t he soundest principles of justice.The principle is this, t h a t when persons embarking in great under-takings, for the accomplishment of which those engaged in themhave received author i ty from the Legislature to take compulsorilythe lands of others, mak ing to the lat ter proper compensation, t hepersons so authorized cannot be allowed to exercise t he powers con-ferred on them for any collateral object; t ha t is, for any purposesexcept those for which the Legislature has invested them withextraordinary powers. The necessity for strictly enforcing this prin-ciple became apparent, when i t became an ordinary occurrence t h a tassociations should be formed of large numbers of persons possessingenormous pecuniary resources, and to whom are given powers ofinterfering for certain purposes with the r ights of private property.I n such a state of th ings i t was very important tha t means shouldbe devised, whereby the Courts, consistently with the ordinaryprinciples on which they act, -should be able to keep such associa-tions or companies str ict ly within their powers, and should preventthem, when the Legislature has given them power to interfere withprivate property for one purpose, from using t ha t power foranother. Lord Cotteriham, in numerous instances, interfered insuch cases; and the principle has been cordially approved of, andacted on, in all the Courts of law and equity, and has been fre-quent ly recognized and confirmed in this House. I t has becomea well-settled head of equity, t h a t any company authorized by t heLegislature to take compulsorily the land of another for a definiteobject, will, if a t tempt ing to take it for any other object, berestrained by t he injunction of t he Court of Chancery from sodoing.

Eely ing on this principle, the Appel lant contends t ha t his

44 ENGLISH AND IRISH APPEALS. [L. E.

i860 bill in the second suit was wrongfully dismissed, and that he isGALLOWAY entitled to the injunction given to him by the decree in the first

rv- suit. The question is, whether he has brought himself within the

COMMONALTY principle on which he relies.There is little or no difference as to the facts connected with this

agreement. On the 26th June, 1862, being rather more than amonth before the Western Approaches Act received the royalassent, but when it was pending in Parliament, an agreementwhich had lone: been in the course of negotiation was finally con-eluded between the Corporation of the City of London and theMetropolitan Railway Company, whereby the Respondents engaged,that as soon as possible after the Bill should have become law,they would purchase and procure to be vested in themselves acertain defined portion of the lands which by the intended Act itwas proposed they should be authorized to take, and then wouldsell it to the railway company for the purposes of the railway inconsideration of a sum of £70,000.

The land thus agreed to be taken and sold to the railway com-pany included the property of the Appellant; and there is nodoubt that it all formed part of what the Respondents wereauthorized to take for the purposes of the Western Approaches Act.The only question is, whether the sale to the railway company canbe treated as one of those purposes. And this depends entirelyon the true construction of the Act under which the Respondentsproceeded.

By the 5th section of the Act, all the powers, provisions, restric-tions, and enactments contained in the London City ImprovementAct, 1847, are to be taken to extend, and to be applied to, the Actnow under consideration. This Act of 1847 seems to have been thefirst of a number of Acts since passed for enabling the Corporationto make improvements in the Metropolis. It contains clauseswhich must be applicable to all metropolitan improvements. Itenables the Mayor and Corporation to fix the width of streets andfootpaths, to stop up streets and ways, to raise and lower thelevel of streets, and makes numerous other provisions of a generalcharacter. All these are thus adopted into the Act now in ques-tion ; and, as appears, into many other Acts; and the Act of 1847has thus acquired the name of the Model Act.

YOL. I.] ENGLISH AND IEISH APPEALS 45

By section 13 of that Act the Mayor and Corporation are em- 1866powered to take any house or land which they might deem it GALLOWAY

expedient to take for the purposes of the Act. Provided always, M A T ^ AND

that without the consent of the owner they cannot take any lands COMMONALTY

not included in the schedule to the Act. Provision is made insubsequent clauses for the mode of ascertaining the value of theproperty taken, and for compensating the owners for the same.

Now, it must be observed that the Legislature, in providing forsuch an object as that of widening and improving the streets of theMetropolis, has to deal with a subject totally different from thatof enabling a body of adventurers to form a railway. In thatlatter case, the persons seeking the aid of Parliament are boundto shew that what they are proposing to do is of such public im-portance as to make it reasonable that they should be enabled sofar to interfere with the rights of private property as to compelthe owners of the land required for the railway to sell it to themat a fair price. The Legislature has no concern with the questionas to how the persons embarking in the undertaking are to obtainfunds to pay for the construction of the railway. The railwaywill become the property of the speculators, and will itself repaythem (at all events, it is anticipated that it will repay them) bythe tolls levied on it, the outlay they have made. But in the caseof a public body, like the Mayor and Corporation of the City ofLondon, undertaking improvements in the Metropolis, the matter isvery different. When they have made a new or widened an oldstreet, they will necessarily have incurred a very great expense forwhich they can get no return. The new or improved street isdedicated to the public, and, unlike the railway, yields no profitto those by whom it has been made. In order to meet this diffi-culty, and to enable corporations to reimburse themselves, thecourse has been to authorize them to take compulsorily, not onlythe buildings actually necessary for forming the streets or otherprojected improvements, but also other neighbouring lands andbuildings, the value of which, and the proper mode of dealing withwhich, the Legislature considers to be connected with and de-pendent upon the projected improvements. In the Model Actall the lands and buildings authorized to be taken compulsorilyare enumerated or referred to in a schedule to the Act. In later

46 ENGLISH AND IRISH APPEALS. [L. E.

1866 Acts the practice has been to have them all described in a book* • — r * /

GAILOWAY called the book of reference, deposited with the clerk of the

MATOE AND peace, accompanied by a map or ground plan.COMMONALTY B y ^ g 1 3 t } 1 s e c t i o n . of the Model Act, the Mayor and Com-OF LONDON. J J

monalty were empowered to take, for the purposes of that Act, allthe lands and buildings comprised in the schedule, and the modein which they were required to deal with any land taken and notactually laid into a street, is indicated in the 46th clause; and itis this: they were bound to let it on building leases to personswho would agree to erect houses or other buildings on plans to bepreviously approved by themselves, and they were afterwardsempowered to sell the ground rents and the reversion expectanton the leases. The object of all this is plain. It was anticipatedthat the projected improvements would be likely so to add to thevalue of property in the neighbourhood, that by enabling thoseat whose cost the improvements had been made to appropriate tothemselves, at their old value, the houses and lands adjoining theimprovements, and then to sell them at their increased value, theymight be able wholly or partially to reimburse themselves theoutlay they had made.

The 46th section declares, in express terms, that all lands demisedand leased by the Corporation, under the powers of the Act, shallbe deemed to be land required for the purposes of the Act.

Such being the clauses of the Model Act, all of which are incor-porated into the Act with which we have now to deal (I mean theWestern Approaches Act), it seems hardly necessary that I shouldsay more than that the observations I have made on the ModelAct satisfy me that under the Western Approaches Act the Ees-pondents were empowered to take compulsorily all the landsincluded in the book of reference, which comprise those of th..Appellant, Mr. Galloivay, and to sell them at the best price theywould fetch. It is however right to add, that I think the sameconclusion would follow from a fair consideration of the WesternApproaches Act itself, bearing in mind only the general observa-tions I have made as to the object which in all these MetropolitanImprovement Acts the Legislature must have had in view.

In the year 1860 the Corporation had been empowered to makea new meat market on the site, or mainly on the site, of the old

V0L< i.] ENGLISH AND IEISH APPEALS. 47

SmithfiM Market. In the year 1862 the Act now in question was 1866passed, i ts object being to give a better approach to the new GALLOWAY

market from the west. MAYOB AND

By the 7th section of that Act, the Eespondents are empoweredto make a street north of the intended new market in a westerlydirection, up to Victoria Street, according to a plan deposited withthe clerk of the peace. The 8th section then states tha t the bookof reference, containing a description of the property which mightbe required for the purposes of the Act, and which was depositedwith the clerk of the peace, should at all times be open to publicinspection.

Now, pausing here, i t is plain tha t the Eespondents were by thisAct, and by the Model Act, and by the clauses of the Lands ClausesAct incorporated with it, empowered to take compulsorily, for thepurposes of the Act, all or any of the houses and lands containedin the book of reference. One object of the Act, and that themain object, evidently was tha t stated in section 7, the forming ofthe new street.

But I think that, even independently of the Model Act, there arefarther objects indicated in subsequent clauses. By the 16th, t heEespondents are authorized to borrow on the credit of the tolls ofthe new market, and of the other property of the Corporation, asum of £70,000, and also to borrow on the credit of the Corporationestates and of the lands by the Act authorized to be purchased oracquired, a farther sum of £115,000.

By section 18 i t is provided tha t these two sums of £70,000 and£115,000 shall be applied in discharge of the expense of makingthe new street, and of otherwise carrying the purposes of the Actinto full effect; and tha t the £115,000 shall within seven yearsbe paid off by a sale of the superfluous lands, or otherwise out ofthe other property of the Corporation. The expression is, the" said " superfluous lands, but as no mention had been previouslymade in the Act of superfluous lands, I think the word "sa id"must be treated as having crept in per incuriam.

The next section (the 19th) enacts that if at the end of fiveyears the whole of the money expended in purchasing the neces-sary land for forming the street, or in relation thereto, shall beless than the £70,000 borrowed under section 16, and charged on

48 ENGLISH AND IEISH APPEALS. [L. E.

i860 (inter alia) the tolls, then the excess shall be applied in paying offGiiwnvAY o r reducing the amount of the sum so charged on the tolls. But

M Y V' \x ^ I e c^&use e xP r e s s iy provides that in calculating the amount ofCOMMONALTY the sums expended, there must be deducted the net amount of all

money produced by sale of such of the said lands as should nothave been thrown into the street, and the value of such of themas should not have been sold. This shews plainly that the Ke-spondents were to have the power of selling and appropriating thewhole of the said lands, i. e. the lands authorized to be purchasedand not actually made to form part of the new street; and theonly question is, what lands are so authorized to be taken ? Evenindependently of the Model Act I can discover no limit except thatimposed by the book of reference and by the consent of the ownerin the case of land taken under the 9th section.

The Appellant contends that the true limit is to be discoveredby ascertaining what lands are necessary for enabling suitablehouses or buildings to be erected along the sides of the new street,with a reasonable depth behind.

This seems to me an arbitrary and fanciful limitation, not justi-fied by anything to be found in the Act, and to be altogetherinconsistent with the book of reference, and the map or planannexed to it. It is impossible, looking at that plan, to believethat all the houses and plots of land marked on it were only to betaken in order to afford space behind houses or shops to be builtin the line of the new street. A mere inspection of the map issufficient to negative any hypothesis of that kind.

The intention of the Legislature, as deducible from the Act,appears to me to have been that the Respondents were to be atliberty to purchase compulsorily all the lands included in thebook of reference. They were then to appropriate to the line ofthe street whatever was necessary properly to form the street.The expense of all which was wanted for the street, or wasexpended in paving or making it, was made a charge on the tolls,But the Respondents were to be at liberty to sell all which was notincluded in the line of the street, so as thereby, if any profit wasrealised on re-sales, to discharge or reduce the sum charged onthe tolls. The Legislature trusted the Respondents to deal withthe whole property in the manner which should be considered

VOL. I.] ENGLISH AND ISISH APPEALS. 43

most conducive to the public interest, in forming the new street 1S66with as little cost as possible to the frequenters of the new market. GALLOWAY

This view of the case is confirmed by the 20th section. In the MAT(^ Am>

Model Ad it was provided that no lands taken by the Corporation COMMONALTY

and not actually converted into streets should be disposed ofotherwise than by causing houses to be built on the line of thestreets authorized to be formed. That might have been veryreasonable, having regard to the nature of the improvementthereby authorized. We have no copy of the schedule annexedto that Act, or of the map showing the extent and nature of thebuildings thereby authorized to be taken. Probably they wereall buildings abutting on or near to the new streets therebyauthorized to be made, and then it might be a reasonable thingto impose on the Corporation the duty of demising the land notwanted for the street itself, on building leases, to persons willingto erect such buildings as the Corporation might approve. At allevents, with regard to the locality of the improvements contem-plated by that Act, the Legislature thought fit to take that pre-caution. The Mayor and Corporation were bound, first, to demiseon building leases, and then, after the buildings had been com-pleted, they were authorized to sell the leases and the ground rents.But the Legislature did not think that any such precaution wasnecessary with reference to the improvements contemplated by theAct'now under consideration ; for, by the 20th section, the Sespon-dents are expressly empowered either to demise on building leases,and then to sell the leases and ground rents according to thepowers given by the Model Act, or at once to sell the land takenwithout any restriction as to the use it might be put to. Theobject was to effect a great public improvement, and to enable theEespondents to raise funds for the purpose of carrying it intoexecution. It does not seem to me to be unreasonable to supposethat the Legislature left it to the Eespondents to judge of ffaebest means of carrying into effect the duties entrusted to them.

The only question, therefore, on the first decree, is that depend-ing on the agreement entered into by the Eespondents before theyhad obtained their Act to sell a portion of the lands to be includedin the book of reference to the railway company at a stipulatedprice.

VOL. I. IF

50 ENGLISH AND IBISH APPEALS. [L. E.

1SG6 ' I cannot, however, attribute any force to the objection raised onGALLOWAY this head, even independently of the subsequent recognition of

MAYOE AND *^e agreement by the Legislature in the Holborn Valley Ad.COMMONALTY j£ w a s aro-ued that the existence of this agreement was not dis-OF LONDON. .

— closed to Parliament when the Western Approaches Act was passed,and that not to disclose it was a species of fraud on the Legisla-ture. But it was, if I rightly construe the Act, certainly known,that one of its objects was to enable the Respondents to sell anyof the lands included in the book of reference, and not wanted forthe actual line of the street, so as to enable them to raise moneyand get rid of it, or, at all events, lower the tolls of the market.That being so, I see no reason why the Respondents were boundto disclose any agreement they had made with the railway com-pany. The suggestion made in the bill, that they were selling atan undervalue in consequence of their being themselves interestedin the railway, rested on no foundation, and in fact no reliancewas placed on it in argument. The railway company was likelyto be their best customer. Their negotiations with the companywere notorious ; and it was probably the most prudent thing theycould do to bind the company to become the purchaser, at what,no doubt, they considered the best price they could obtain.

On these grounds I have come to the conclusion that the bill inthe first suit, being that to which, the second appeal relates, oughtto have been dismissed, and so that the decree of the 28th of July,1864, ought to be reversed.

It is unnecessary for me to say much on the other suit, i.e., thatin which Mr. Galloway is Appellant, complaining of the decree of theLords Justices of the 9th of May, 1865, dismissing the bill filedin the second suit. In that case the Corporation proceeded to fakethe lands of Mr. Galloway under the subsequent Act passed in1884, called the Holborn Valley Improvement Act. Mr. Gallo-way's lands were included in the book of reference referred + J inthat Act, and the same arguments as to the right of the Respondentto take them, which satisfied me as regarded the Western Ap-proaches Act, are also applicable to the Holborn Valley Improve-ment Ad. But there is this circumstance fh addition: in thatAct the agreement between the Corporation and the MetropolitanMailway Company is expressly referred to.

VOL. I.] ENGLISH AND IRISH APPEALS. 51

The 37th section is in these words :—His Lordship read it (see 1866

ante). GALLOWAY

Both the Master of the Rolls and Lord Justice Knight Bruce MAYOg AND

attributed great importance to that section. They both treated itas showing that the existence of the agreement was known to theLegislature, and that it was not considered as occasioning anyobstacle to the Respondents in the way of purchasing the landswhich by the last Act they were authorized to purchase. I ownI should not have wanted this confirmation of the view I havetaken; but it is right that I should advert to it, as a matter whichseemed important to those very learned persons.

I say nothing as to the point raised in reference to the inva-lidity of the notices. If they are invalid, Mr. Galloway may raisehis legal objection; but he is not on that account entitled to anyequitable relief by injunction.

The result of my opinion is, that the first bill ought to havebeen dismissed with costs; and so that the second appeal ought tobe allowed. The first appeal must be dismissed with costs.

LOED CHBLMSFOKD (after fully stating the facts) :—

My Lords. In these two appeals which have been heard to-gether at your Lordship's bar, the principal question is whether theCorporation of London, under the provisions of the MetropolitanMeat and Poultry Market (Western Approach) Act, 1862, or of theHolborn, Valley Improvement Act, 1864, can take compulsorily certain

. land of Mr. Richard Hodgson Galloway for the purposes of theseActs.

The proceedings to obtain possession of the land in questionwere resisted by Mr. Galloway on the ground that before thepassing of the Metropolitan Meat and Poultry (Western Approach)Act, 1862, the Respondents had entered into an agreement to selland convey to the Metropolitan Railway Company a considerableportion of this land; and that they were, therefore, using theircompulsory powers, not for the purposes of the Acts, but to enablethem to carry out their agreement with the railway company.

A preliminary objection to the proceedings of the Respondentswas made, but not much insisted upon, namely, that even supposingthem entitled to compel the Appellant to part with his lands, the

1 F 2

52 ENGLISH AND IEISH APPEALS. [L. E.

1886 provisions of the London City Improvement Act, 1847, were notGALLOWAY observed, as there was no offer on the part of the Corporation to

TOK AND * r e a* W^L. him, nor any offer of a price. I t is quite clear thatCOMMONALTY there is nothing in this objection. The notice by the RespondentsOS LOKBON. O J J , i

was exactly in the words of the 13th section of this Act, that" they meant to take and use the Appellant's hereditaments andpremises." After receiving this notice, he made a claim of £85,000,which the Respondents would not give, but offered a reference,which he declined. Mr. Galloway and the Respondents, therefore,could not agree, and they were empowered, by the express wordsof the 21st section of the Act, to issue the precept to summon ajury to assess the amount of compensation to be paid to him.

The substantial objection, however, is one that goes to the veryroot of the proceedings of the Respondents, and denies altogethertheir right to compel Mr. Galloway to part with his lands to them.It is contended on his behalf that by entering into the agreementwith the Metropolitan Railway Company to sell the land before theAct had been obtained empowering the Respondents to purchase it,they had disabled themselves from exercising a proper judgment asto how much would be required for the purposes of the Act, andwere using their compulsory powers, not to obtain land which waswanted to carry out their purposes, but to enable them to completethe agreement by which they were bound immediately afterwardsto convey to the railway company a part of the land thus obtained.

Upon this point a different view was taken by Vice-ChancellorWood, and apparently by both the Lords Justices, but certainlyby Lord Justice Knight Bruce. The Vice-Chancellor consideredthat the Respondents had not so fettered themselves by theagreement as to prevent their exercising a right as to Mr. Gallo-way's land being wanted for the purposes of the improvement.And that they had adopted a reasonable and proper course inascertaining beforehand whether there were persons willing topurchase and to give them proper prices, so as to enable them tocalculate the risk in the expenditure they were about to incur.The Lord Justice Knight Bruce, on the contrary, thought that theagreement must be taken to have, in effect, incapacitated theRespondents from forming a just judgment, as between them andMr. Galloway, concerning the quantity of land which they should

VOL I.] ENGLISH AND IEISH APPEALS. 53

require him to sell to them under their parliamentary powers. 1866The Lord Justice Turner, upon this question, said: " The Ee- GALLOWAY

spondents have agreed to sell to the railway company before they jiAYOn ANDpurchased, and even before they acquired the power to purchase ; COMMONALTY

can it then be said that they have exercised the judgment which —•they were bound to exercise, or even that they have ever been ina position to exercise that judgment, bound as they have been andare by the agreement into which they have entered ? I cannot,to say the least, but feel doubts upon these points, and think thatthey ought to be reserved to the hearing." His Lordship, however,in a previous part of his judgment, had put the point of the agree-ment entirely upon the incapacity of the railway company topurchase from the Respondents. His conclusion in this respect headmitted in the second suit to have been to some extent foundedin error as to one of the facts of the case. There can be no doubtthat at the time of the agreement the Metropolitan Railway Com-pany was not incapacitated from purchasing. The compulsorypowers of purchase had not expired; and being empowered underthe Act to take any quantity of land not exceeding twenty acresfor extraordinary purposes, the company had not nearly exhaustedthis power. If these facts had been present to the mind of theLord Justice it is possible, from his observations, that he mightnot have held that the existence of the agreement could havebeen successfully urged against the right of the Corporation totake the laud in question. For his language was this: " TheDefendants have, under the Metropolitan Meat and Poultry Marlcet{Western Approach) Act, 1862, the right to purchase the whole ofthe Plaintiff's property; and they must also, as it seems to me,have the right to sell the property when purchased or acquired bythem to some persons and under some circumstances. The 20thsection of the last-mentioned Act must, I think, be held to givethem this power. But then, what is the extent of this power ?A power to sell, even though given by Parliament, cannot, as Iapprehend, be construed to authorize an incapacitated person tobuy; and unless, therefore, it can be shewn, not merely that theRespondents were empowered to sell, but also that the railwaycompany was empowered to buy, I cannot at present see my wayto holding that the Respondents could sell to the railway com-

54 ENGLISH AND IRISH APPEALS. [L, E.

1866 pany. But yet it is clear, upon the evidence before us, that it isGALLOWAY for the purpose, and sole purpose, of selling to the railway eom-

MAYOB AND Pany> that the Respondents are endeavouring to purchase theCOMMONALTY w h o I e o f t h e p]aintiff's property."

OF LONDON. L r J

The Lord Justice here seems not to proceed upon the ground ofthe agreement fettering the judgment of the Corporation, butupon its being entered into with an incapacitated company. Buteven supposing the railway company had no capacity to purchaseof the Respondents, if they had power to take the land, I cannotsee, with great respect to the Lord Justice, what difference it couldmake to Mr. Galloway how they disposed of it afterwards, orwhether the intended purchaser was capable of purchasing or not.The real question is, whether the Respondents having (to use thewords of Lord Justice Turner) " the right to purchase the wholeof Mr. Galloway's property, and to sell it again when purchased oracquired," they had, by the arrangement, which they had enteredinto beforehand, to sell a portion of it to the railway company,prevented all future exercise of their compulsory powers over it.

In order rightly to determine this question, it is necessary toascertain the extent of the powers conferred upon the Respondentsby the Metropolitan Meat and Poultry (Western Approach) Act.1882.

I am not quite satisfied of the correctness of Vice-ChancellorWood's opinion, that one of the purposes of the- Act was to enablethe Respondents to raise money by purchasing land, no part ofwhich was wanted for the formation of the intended street, andselling it again. But looking at the deposited plans and book ofreference, it is plain that the Act conferred upon the Respondentsa much more extensive power over property in the neighbourhoodof the proposed line of street than could possibly be required forthe immediate purposes of the street itself. By the 16th sectionalso of the Act, the Respondents are empowered to charge upon,and borrow, and raise on the credit of, the estates and otherproperty of the Corporation, and the lands by this Act authorizedto be purchased or acquired, the sum of £115,000. The chargeof this sum of £115,000 is to be laid, not upon the lands "requiredfor the purposes of the Act," but upon " the lands by this Actauthorized to be purchased or acquired," which extends in terms

VOL. I.] ENGLISH AND IRISH APPEALS. 55

to all the lands in the deposited plans and book of reference. 1866The sum so raised is, by the 18th section of the Act, to be paid off GALLOWAY

"within seven years after the passing of the Act, out of the JJAYO^AND

proceeds of the sale of the said superfluous lands," or otherwise COMMONALTY

by the Eespondents out of their estates and other property. Theword "said" has no antecedent to which it can properly bereferred; but the " superfluous lands" must mean those whichunder the 16th section "being authorized to be purchased oracquired," are not wanted for the purposes of the Act. Thereforeit appears that the Eespondents were empowered, before com-mencing their operations, to borrow money on the credit of allor any of the lands authorized by the Act to be purchased, forthe purpose of enabling them to begin the formation of theintended new street. And all the lands charged with the repay-ment of the money borrowed, which afterwards might not bewanted for the purposes of the street, would become superfluouslands, which might be sold, under the 18th section of the Act, topay off the debts. That the Legislature contemplated that therewould be a considerable amount of superfluous lands appears fromthe provision in this section, that the large sum of £ l 15,000 wasto be discharged out of the proceeds of these sales (amongst othersources) within seven years. All this goes far to justify the viewtaken by Vice-Chancellor Wood, not perhaps that the Eespondentscould purchase land merely for the purpose of selling it again, butthat they might charge all the lands which they had power totake, and so bring them afterwards into the category of superfluouslands, to be sold to pay off the charge, which amounts nearly to thesame thing.

But confining our attention to Mr. Galloway's lands, the powerconferred by the Act upon the Eespondents to take them isunquestionable. The expressed purpose of the Act is the for-mation of a new western approach to the Metropolitan Meat andPoultry Market by means of a street in continuation of theintended street on the north side of the market, to VictoriaStreet. The word " street" does not mean the mere roadway,but (as correctly denned by Mr. Bolt in his argument) "athoroughfare with houses on both sides." Therefore, when theLegislature empowered the Mayor and Corporation to take

56 ENGLISH AND IRISH APPEALS. [L, E,

1866 lands, houses, and buildings, for the purposes of the Act, itGALLOWAY did not confine them to the mere width of the intended road, butMVTOR AND g a^ e them authority to take as much land as might be necessaryCOMMONALTY for ^he formation of the street itself, by the erection of houses orOP LONDON. ' J

other buildings on each side. There can be no doubt that a partand a considerable part, of Mr. Galloway's land on the north sideof West Street, would have been required to form a portion of theproposed new street, and that the Respondents might have insistedupon taking the whole, and might afterwards have sold as super-fluous all that was not laid into the street. It is difficult tounderstand why, if they might have done all this under the Actwhen passed, they might not have anticipated its passing, andmade a conditional agreement, binding themselves to deal withthe property to be acquired under the Act in a similar manner.

It was strongly urged, on the part of Mr. Galloway, that, underthe circumstances, his land could not be said to be taken forthe purposes of the Act, and the case of Flower v. The BrightonHallway Company (1), was cited to show that it was notsufficient for the Respondents to say that they wanted the landfor " the purposes of the Act," but that they ought to specify theparticular purpose for which it was required. I do not quite seehow that case applies. That was an application for an injunction torestrain the company from proceeding upon a notice to treat forcertain land of the Plaintiff, the company having previously givenhim two notices, which were afterwards withdrawn, in which thepiece of land in question was not included. In the affidavits filedby the Appellant it was stated that this piece of land was notwanted for the line of railway. The engineer of the companyswore that it would be " required for the purposes of the Act,and for the railway and works authorized by the Act." Yice-Chancellor Kindersley said: " The question is, whether therailway company has a right to take any lands, or houses, orpremises of any kind whatever, simply because the engineermakes an affidavit that they are or will be required for thepurposes of the Act, without saying what those purposes are.If that bo the law, it is hard to conceive a law more likely to bedetrimental to the interests of the public."

(1) 2 Dr. & Sm. 330.

VOL. I.] ' ENGLISH AND IRISH APPEALS. 57

Now, if the Eespondents here, upon Mr. Galloway's application 1866for an injunction, had not condescended upon any explanation, but GALLOWAY

/had merely stated that they wanted his land for the purposes of the AYOU AND

> Act, the case cited would have been applicable. But both in COMMONALTY1 their affidavits filed before the motion, and in their answer . .afterwards, they fully explained the grounds upon which theyconsidered themselves authorized to take Mr. Galloways land.There is no imputation upon the Eespondents of want of bontifides. They hav.e never concealed their agreement with therailway company, nor denied that a portion of Mr. Galloways

. land on the north side of West Street is required to enable themto carry out this agreement. It is a mere question of disputedright, the Eespondents claiming under all the circumstances tobe entitled to take Mr. Galloway's land, and he insisting that inthe position in which they are placed .by the agreement with therailway company, they are debarred from exercising their parlia-mentary powers over his land.

This is substantially the only point to be determined betweenthe parties. After carefully considering the arguments of counsel,and the opinions of the learned Judges in the Courts below upon

1 the subject, I cannot bring my mind to the conclusion, that partieswho are promoting a bill by which they seek to obtain certaindiscretionary powers over property may not enter into a condi-tional agreement that, in the event of the bill passing into a law,they will dispose of the property to be acquired in a particularway, without, by this anticipation of the actual possession of thepowers, depriving themselves of all discretion to exercise themwhen obtained. If, as seems to be admitted, the Eespondentsmight have dealt with Mr. Galloway's land after the passing of theMetropolitan Meat and Poultry Market (Western Approach) Act, 1862,exactly as they are now bound to do by their agreement withthe railway company, why were they not quite as capable offorming a judgment as to the best mode of carrying out thepurposes of the Act before it passed ' as they would have been.afterwards ?—and how, therefore, can it be properly said that theagreement with the railway company "incapacitated the Ee-spondents from forming a just judgment ?"

I am unable also to discover what prejudice Mr. Galloway has

58 ENGLISH AND IRISH APPEALS. [L. E.

18G6 sustaired from this agreement. It must be borne irr mind that atGALLOWAY the time it was entered into, the Metropolitan Railway Company

MAYOR AND w a s enabled under its own Act to purchase the whole of his

land on the n01't]x sido of West Sireet ™ s c o m P u l s o r y P o w e r

indeed was to expire shortly afterwards; but the company mighthave preserved its right to exercise it by giving Mr. Gallo-way notice of the intention to take and use his land. "Whatpossible difference could it make to him whether he was toreceive his •' compensation from the Respondents or from therailway company ? And how was he prejudiced by the arrange-ment that the railway company should allow its powers to lapse,and should buy from the Respondents so much of the land on thenorth side of West Street as was not required for the road afterthe Respondents should have obtained possession of it from Mr.Galloway under the provisians of their own Act.

Upon a careful consideration of the circumstances of the case,I think that the decree for an injunction in the first suit waswrong, and that it ought to be reversed.

A very few observations will dispose of the second suit. Whilethe first suit was pending, another Act called the Holborn ValleyImprovement Act, 1864, was obtained by the Respondents, andreceived the royal assent on the 23rd of June, 1864. Under thisAct power was given to the Corporation to take the. same lands ofMr. Galloway as were included in the Metropolitan Meat and PoultryMarlcet {Western Approach) Act, 1862. Shortly after the passingof the Holborn Valley Improvement Act, and two days after thedecree for an injunction in the first suit, viz., on the 30th of July, j1864," the Respondents served Mr. Galloway with a notice of "theirintention to take the whole of his property in the deposited plansand books of reference, under that Act. And at the same time, bya letter from their comptroller, they reserved their right to takethe property under the Act of 1862. Mr. Galloway thereuponfiled a bill for an injunction to restrain the Respondents fromtaking any part of his property, except so much as they shouldlond fide require for the purposes of the Eolborn Valley Im-provement. The case was heard on motion for a decree, bythe Master of the Rolls, who dismissed the Bill with costs. Uponappeal to the Lords Justices they differed in opinion; but Lord

VOL. L] ENGLISH AND IRISH APPEALS. . 59

Just ice Knight Bruce agreeing with the Master of the Eolls, t he 18G6appeal was dismissed. GALLOWAY

. The judgment of the Master of the Eol ls proceeded part ly, and MAYO^ AND

t h a t of Lord Just ice Knight Bruce entirely, on the effect of t he COMMONALTY

37th section of the Holborn Valley Improvement Act, which theyihought gave validity to the agreement entered into between theCorporation and the railway company. That section, after recitingthat this agreement had been entered into, and that it was expe-dient that the rights of the Metropolitan Railway Company underit should be preserved, enacted as follows. [His Lordship read it.—•See ante.]

The Master of the Eolls was of opinion, and Lord JusticeKnight Bruce agreed with him, that by this section " The Legisla-ture pronounced an opinion equivalent to a declaratory enactmentdetermining that the agreement was a valid agreement, conferringrights upon the Metropolitan Railway Company prior to the pass-ing of the Act." Lord Justice Turner was unable to agree in theconstruction put upon this 37th section, but (which is much to beregretted) gave no reason for his hesitation to adopt it. I feel thesame inability to construe the enactment in the sense attributedto it by the other learned Judges. I think that all it effected wasto recognise the existence of the agreement without declaring any-thing as to its validity. • But the words, " all the covenants andprovisions of the agreement, shall be as applicable to the lands,if purchased under the powers of this Act, as they would havebeen if purchased under the powers of the Act of 1862," will befound to have an important significance. If the agreement hadbeen invalid these words would not have given it validity;' butit has been shewn, in the examination of the proceedings ofthe Eespondents under the Act of 1862, that the agree-

',ment was perfectly valid and binding. If, then, the Eespon-dents might have conveyed to the railway company the landswhen acquired under that Act, though taken for that very pur-pose, they are placed in the'same situation with respect tothese same lands if purchased under the Holborn Valley Improve-ment Act.

•The Master of the Eolls, in his judgment, speaking of theKolhorn Valley Improvement Act, said : " The first thing I have to

60 ENGLISH AND IRISH APPEALS. [L. E!

18GG observe is, that the object of this Act, which was to make the im-GALLOWAY provements there specified, which are set out in the second section

MAYOR AND °f the Act, gives.for that object, by means of the incorporation ofCOMMONALTY ^] i e (jtfy Improvement Act, 1S47, not merely the power to make the

improvement in question, but also the power of taking and re-selling lands not absolutely required for the streets and viaductthere mentioned, but also for the purpose fof raising money to1

defray part of the expenses required1 for the purpose, in likemanner as if the Act comprised lands which could by no possi-bility lie in the line of any improvement contemplated by the Actitself, and which therefore could only have been inserted for thepurpose of enabling the Corporation to raise the funds in questionfor the purpose of the Act." With great submission, this passageof the Master of the Roll's judgment appears to me not to be

' strictly accurate. Under the Molborn Valley Improvement Act thereis no power expressly given to resell lands not required for thepurposes of the Act. And the London City Improvement Act, 1847,incorporated with that Act, did not enable the Respondents totake lands for the mere purpose of reselling them in order to raisefunds for the improvements to be effected. If any lands purchasedand cleared by virtue of the Act were not laid into nor formedpart of the streets, the 46th section provided for the manner inwhich they were to be disposed of, viz. by letting such lands onbuilding leases, the Respondents being empowered, by the 47thsection, afterwards to sell the ground rents and reversion of theselands. If then the Respondents were compelled to rely uponthe City Improvement Act, 1847, and on the Holborn Valley Im-provement Act, without the 37th section, as by their agreement withthe railway company they had disabled themselves from disposing'of Mr. Galloway 8 lands not required for the improvement in the-.,only way prescribed by the Acts, they might in my opinion havebeen restrained in the exercise of their compulsory powers overhis property. But under the Metropolitan Meat and PoultryMarket (Western Approach) Act, 1862, very extensive powers beinggiven to the Respondents to acquire all the property specified inthe plans and book of reference, to raise money upon the credit ofit, and to sell superfluous lands to pay off the debt, the Respon-dents were not restricted by the Act from absolutely disposing of

VOL. I ] - ENGLISH AND IRISH APPEALS. 6l

Mr. Galloways land to the railway company. I t has been shewn 1866that there is no objection to the agreement with the railway com- GALLOWAY

pany on the ground that it preceded the Act by which the powers. M yJJj AND

necessary to its performance were conferred upon the Eespondents COMMONALTY. ' . OF LONDON.

When therefore the Legislature, by the 37th section of the HolbornValley Improvement Act, made the covenants and provisions of theagreement as applicable to the lands if purchased under the powersof that Act as they would. have been if they had been purchasedunder the powers of the Metropolitan Meat and Poultry Market{Western Approach) Act, 1862, it necessarily sanctioned the com-pulsory purchase by the Eespondents of Mr. Galloway's land on thenorth side of West Street, and the conveyance of it to the railwaycompany under the Holborn Valley Improvement Act. Otherwisethe covenants and provisions of the agreement would not havebeen as applicable to the acquisition of the land under the powereof this Act, as if it had been purchased under the powers of theAct of 1862.. I am therefore of opinion that Mr. Galloway could not restrainthe Eespondents from proceeding to acquire possession of hisland under the Uolborn Valley Improvement Act, and that his billfiled for that purpose was properly dismissed.

The result, therefore, will be that Mr. Galloway's appeal will bedismissed with costs, and in the case of the appeal of the Corpora-tion, that the decree must be reversed.

LORD KINGSDOWN:—

My Lords, I entirely agree in the conclusion at which your Lord-ships have arrived. I should be inclined myself to attribute moreweight than my noble and learned friend who has last addressed theHouse has done, to that clause in the last Act of Parliament whichrefers to this agreement, not that I consider it to be at all doubt-rfiil whether it is a valid agreement. As to the validity of theAgreement there never was nor could be any doubt. It was bindington the Mayor and Corporation; it was binding on the railway com-pany ; and it was on the ground that it was so binding that Mr.Galloway rested his objection. He said you cannot buy this landfor your purposes of City improvement because you have alreadyby a valid contract engaged to sell it to other persons for making

G2 ENGLISH AND IRISH APPEALS. [L. R.

. 1866 a railway, and therefore, in t ru th , you are not buying for yourselves

. GALLOWAY but you are buying for the railway company, and tha t you have no

MAYOB AND .right to do. In this I th ink he was in error. The effect of the

recognition of the agreement by Par l iament I take to have been

this. The Master of the Eolls took this view of it, and I am very

much inclined to think (if i t is necessary to enter into tha t ) tha t

the view which he took on that subject was correct, namely, Gallo-

way had contended and the Court of Chancery had said, tha t agree-

ment being a valid agreement i t constitutes an obstacle to ' the

r ight of the Mayor and Corporation to purchase. Bu t the Legist

lature has provided for that . Having full notice of this agreement

(which therefore cannot be considered as a fraud on Parl iament)

the Legislature has declared " u n d e r whichever Act you purchase,

the agreement shall be carried into effect." I t does seem to me,

therefore, if i t is necessary to rely on tha t ground, tha t there is

great force in those observations.

"What I would suggest, in addition to what has been proposed by

the Lord Chancellor, is this. I confess I th ink that the second bill

was more groundless than the first, and I think therefore tha t tha t

second bill ought, as the first bill was dismissed with costs, to have

been likewise dismissed with, instead of being dismissed without,

costs. Therefore, I should humbly suggest to your Lordships that,

the decree in tha t suit should be affirmed with this variation, tha t

the bill should be dismissed with costs instead of without costs; and

tha t the appeal should be dismissed with costs.

The following Orders were afterwards entered on the journals:—•

Galloway v. The Mayor, &c, of London, etal:

Ordered tha t the decree of the Lords Justices of the 9th of May,

-1865, be affirmed, with this variation, viz. tha t the Plaintiff's bil l

in the proceedings mentioned, ought to have been dismissed out of

the Court below, with costs to be paid by the said Plaintiff, instead

of without costs: and tha t the.appeal be dismissed: and tha t t h e

Appellant do pay to the said Respondents the costs incurred in res-

pect of the said appeal, and that the cause be remitted back to the

Court of Chancery, to do therein as shall be just , and consistent

with this judgment.

. I.] ENGLISH AND IEISH APPEALS. 63

The Mayor, &e. of London v. Galloway: • ' 1S6G

Ordered that the decree of the Court of Chancery, of the 28th of GALLOWAY

July, 1864, be reversed: and it is hereby declared, that the Plain- MAYOHAND

tiff's bill, in the proceedings mentioned, ought to have been'dis- *

missed out of the Court below, with costs to be paid by the Plaintiff:

and it is ordered that the cause be remitted back to the Court of

Chancery to do therein as shall be just, and consistent with this

declaration and this judgment.

Solicitors for Mr. Galloway: Van Sandau, Gumming, & Sons.

. Solicitors for the Eespondents^the Mayor and Corporation of

•London: T. J. Nelson.

Solicitors for the Respondents, the Directors of the Metropolitan

Railway: Burchells.

EBENEZER W. FERNIE AND OTHERS . . . APPELLANTS;

• . AOT) April 19, 20,JAMES YOUNG- AND OTHERS RESPONDENTS. 2 3 - & 24-

Practice—Trial in Chancery with or without a Jury—Motion for new Trial—Findings—Decree—Appeal—21 & 22 Viet. c. 27—25 & 26 Viet. c. 42—

. Issues not to be directed out of Chancery.

Upon an appeal against a decree the House can only look to the decreeitself, and to what is stated and referred to in the decree, and not to anyextrinsic matter.

If, therefore, a decree is founded upon the finding of issues, however thoseissues were found, whether on a trial at law or on a trial in the Court of Chan-cery, with or without a jury, and the decree states the findings, but doesnot refer to the evidence, the House, on an appeal against that decree, cannotlook at the evidence to see whether it afforded ground for the findings or thedecree.

In a case, therefore, where there had been an application to the Court ofChancery for an injunction to restrain the infringement of a patent, and atrial had taken place before a Vice-Chancellor without a jury, and his Honourhad made certain findings, and in the decree on the hearing had madeno reference to anything but the findings, the patent, the specification, and

. the answers, and there was an appeal against the decree alone, it was heldthat the House had no power to look into the evidence in order to satisfyitself'whether the decree was or was not warranted by the evidence,but was bound to confine itself to the decree and to the matters referred•to in it.