The Queen against The Eastern Counties Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1841 |
| Date | 01 January 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 201
IN THE COURT OF QUEEN'S BENCH.
S. C. 2 P. & D. 648; 1 Railw. Cas. 509; 8 L. J. Q. B. 340.
[531] the queen against thb eastern counties railway company. Monday, June 10th, 1839. By a railway Act (6 & 7 W. 4, c. cvi., local and personal, public) it was recited that the making a railway from London to Norwich and Yarmouth, passing by Colchester, &c., would be of great public advantage; and that pertons named were willing at their own costs to carry the undertaking into execution. The persons named, with other shareholders, were incorporated into 3. company to carry the Act into execution. They were authorised to raise by shares 1,600,0001. (which, it was recited, was the probable expense), and, in case that sum should not be sufficient, to borrow on mortgage, or raise by additional shares, 533,3331. The line was set out in the Act, describing the places from London through Middlesex, Essex, Suffolk, and Norfolk, with two termini, one at Norwich, the other at Yarmouth. The usual powers to take lands were conferred, with power to deviate from the line to a limited extent. All the 1,600,0001. was to be subscribed for, before the company could exercise their compulsory powers; and these powers were to cease, unless executed within two years: and, if the whole work was not completed in seven years (unless prevented by inevitable accident), all their powers were to cease, except as to the part (if any) completed. If any part was abandoned, the lands were, as to that part, to vest in the owners of the lands adjoining. By a second Act (1 & 2 Viet. c. Ixxxi., local and personal, public) two years more were added to the first two years; and the company were forbidden to deviate, unless the line of deviation were set out within one year from the passing of the last Act. On application for a mandamus to the company to proceed with the whole line, setting out deviations, &e., and to purchase the necessary lands, it appearing to the Court that the affidavits shewed reasonable ground for believing that the company intended to complete the line from London to Colchester only, and to abandon the rest, the writ was granted, though the company stated that they had not, nor could raise without a new Act, funds sufficient to complete the line. The mandamus suggested that the company had been required to define the deviations, and complete the railway to Norwich and Yarmouth, but that they had refused arid neglected to purchase the necessary lands between Colchester and Norwich, and Norwich and Yarmouth, or set out the deviations, or to make and complete the railway. There was no averment that the company had abandoned the design, or were not proceeding with all convenient speed, or that a reasonable time had elapsed without proper preparations, or that deviations would be expedient. Held, that the mandamus was insufficient. When cause is shewn against a rule for a mandamus, the objection, that no sufficient demand and refusal appear, must be taken before the merits are discussed. [S. C. 2 P. & D. 648; 1 Railw. Cas. 509; 8 L. J. Q. B. 340.] Sir J. Campbell, Attorney General, in last Easter term, obtained a rule nisi for a mandamus, commanding the defendants to proceed to make and complete a railway from London to Norwich and Yarmouth, passing by Romford, Cbelmsford, Colchester and Ipswich, according to the provisions of an Act, &c, (6 & 7 W. 4, c. cvi., local and personal, public), and another Act (1 & 2 Viet. c. Ixxxi., local and personal, public (a)), (a) Stat. 6 & 7 W. 4, c. cvi., local and personal, public, is " for making a railway K. B. xui.-7* 202 THE QUEEN V. THE EASTERN COUNTIES ELY. CO. 10 AD.& B. 632. [532] and especially to set out and define the line of the said railway, particularly that part thereof, lying between Col-[533]-chester and Norwich, and Norwich and Yarmouth, deviating from the line laid down on the plans in the said [534] last- frorn London to Norwich and Yarmouth, by Rotnford, Chelrasford, Colchester, and Ipswich, to be called 'The Eastern Counties Railway.'" (Royal assent, 4th July, 1836.) Sect. I recites that " the making a railway from London to Norwich and Yarmouth, passing by Romford, Chelmsford, Colchester, find Ipswich, would be of great public advantage by opening an additional, certain, and expeditious communication between those cities and towns and the intermediate and adjacent towns and districts, and also by facilitating the means of intercourse between the metropolis and the eastern districts of England ;" and that " the several persons hereinafter named are willing at their own costs arid charges to carry the said undertaking into execution, but the same cannot be effected without the authority of Parliament:" and incorporates certain persons named, and all present or future subscribers, their successors, executors, administrators, and assigns, by the name of " The Eastern Counties Railway Company," giving them power to purchase, hold and sell lands for the use of the undertaking; and enacts that "they shall also have and exercise all other powers and authorities which are hereinafter given or mentioned." Sect 3 enacts " That it shall be lawful for the said company to raise amongst themselves any sum of money for making and maintaining the said railway and other works by this Act authorised, not exceeding in the whole 1,600,0001.," to he divided into shares of 251. each. Sect. 4 gives the company power to sue subscribers for their subscriptions. Sect. 5 enacts "That the money to be raised by the said company by virtue of this Act shall be laid out and applied, in the first place, in paying and discharging all costs and expenses incurred in applying for, obtaining, and passing this Act, and all other expenses preparatory or relating thereto, and afterwards the remainder of such money shall be applied in, for, and towards purchasing lands, and making and maintaining the said railway and other works, and in otherwise carrying this Act into execution." Sect. 6 enacts "That it shall be lawful for the said company and they are hereby empowered to make and maintain the railway hereinafter mentioned, with all proper works and conveniences connected therewith, in the line or course, and upon, across, under, or over the lands delineated upon the amended plan, and described in the amended book of reference to be deposited with the respective clerks of the peace for the counties of Middlesex, Essex, Suffolk, and Norfolk, and the town and county of the City of Norwich ; (that is to say,) a railway commencing at or near High Street, Shoreditch, in the parish of St. Leonard's Shoreditch in the county of Middlesex, and to terminate in, at, or near Norwich and Great Yarmouth, (that is to say, as regards Norwich, in, at, or near Carrow Abbey Field in or near the City and county of Norwich, and as regards Great Yarmouth, at or near the new suspension bridge in Great Yarmouth aforesaid,) and passing from, through, or into the parishes, townships, and places of Christ Church Spitalfields," &c., " or some of them, all in the county of Middlesex; Low Layton," &c., certain places named in the borough of Colchester, &c., " or some of them, all in the county of Essex; East Burgholt," &c., " Witheringsett," &c., "or some of them, all in the county of Suffolk; Scole," &c., "or some of them, all in the county of Norfolk; Norwich, Thorpe," &c., "or some of them, all in the City and county of Norwich; Witlingham," &c., " and certain extra-parochial lands, or some of them, all in the county of Norfolk." Sect. 7, reciting that, since the depositing of the maps, &c., and books of reference, certain alterations of the line had been agreed upon with the concurrence of owners and occupiers, enacts that maps or plans, describing the line as agreed to be altered, together with amended books of reference thereto, shall be deposited with the said clerks of the peace respectively. Sect. 9 and several following sections give the ordinary powers to take lands, &c., by purchase, or, in default of agreement, on paying sums to be assessed by a jury. By sect. 53 the company could take no building erected before 30th November 1835, nor any ground then used as a garden, orchard, yard, &c., without the owner's consent, unless specified in the schedule annexed to the Act, or omitted by mistake, to be certified as there provided. Sect. 54 defines the breadth of the railway. Sect. 55 enacts " That the said company IOAD.fcB.S9J. THE QUEEN V. THE EASTERN COUNTIES ELY. CO. 203 mentioned Act in that behalf referred to; and to proceed to purchase the lands necessary to the making [535] and completing the said railway, and lying between Colchester and Norwich, and Norwich and Yarmouth afore-[536]-said, pursuant to the provisions of the said several Acts. in making the said railway and other works by this Act authorised shall have full power and authority to deviate from the line delineated on the maps or plans so deposited with the clerks of the peace," with certain limitations as to extent; and no deviation is to be made into the lands of persona nob mentioned in the book of reference, or omitted by mistake : such omission to be certified as provided in the Act. Seat. 130, and several sections following, provide for periodical general and special general meetings of the company, and for the method of voting by the shareholders at such meetings. Sect. 138 names the first directors of the company, who are thereby appointed "to manage the affairs of the said company:" five to be a quorum; and subsequent sections provide for the election of successors to them by the shareholders. Sect. 144 enacts "That the directors for the time being of the said company shall superintend all the affairs thereof, and have power to use the common seal of the said company on their behalf, and shall have full power and authority to do all acts whatsoever for carrying into...
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