to, or known in parliament, and was concealed from the legislature during the passing of the act; and that plaintiff, at the time of passing the act, and still, was a peer of parliament. SECTION IX. What Contracts between the Promoters of Railways and Others will be enforced, either in Law or Equity, against the Contracting Parties, or the Company. 1. Contract to take land of opposing party. | 2. Contract prejudicial to the public. § 10. 1. Since the decison of Howden v. Simpson, in the Exchequer Chamber, and the House of Lords (1842), the English courts seem to have acquiesced in the principles there established, until a very recent period. The validity of such a contract is recognized, in regard to the company purchasing the interest of the lessee of lands near the line of the proposed railway.1 And where the promoters of one railway entered into an agreement with a land-owner on the proposed line to take his land at a specified price (20,000l.), by which he was induced to withdraw opposition; and the promoters of a rival line, who proposed also to pass through the same land, had petitioned for a charter, and the merits of the two projects were, under the sanction of the committee of the House of Commons, referred to arbitration, and the solicitors of the two bills agreed, that the adopted line should take the engagements entered into with the land-owners, by the rejected line, it was held, that the second company prevailing, were bound, as a condition of entering upon the lands of plaintiff, to fulfil the terms of the agreement with the first company.2 2. And where one railway company was prohibited from opening their line for traffic, until they had built a branch railway, * connecting their line with that of another company, was held, that a court of equity was bound to enforce the pro 1 Doo v. The London and Croydon Railway, 1 Railw. C. 257. it 2 Stanley v. The Chester and Birkenhead Railw. 1 Railw. C. 58; 9 Simons, 264. hibition, on motion of the other company, though the probable result would be, to cause inconvenience to the public, and not to benefit the other company.3 SECTION X. Courts of Equity will enforce Contracts with the Promoters. 1. Bona fide contract not evading statute, n. 3. Statement of English cases. valid. § 11. 1. The English courts of equity do not hesitate to restrain railways from proceeding to take land under their compulsory powers, where the proprietor of the estates had surceased opposition to the bill, by an arrangement with the projectors, by which they stipulated that the company should pay a certain sum, which it had declined to do. This was done notwithstanding the proprietor was a peer of parliament, and notwithstanding the tender of an undertaking, on the part of the company, not to enter upon the land until the further order of the court, and notwithstanding the time, within which the company, by their charter, were authorized to take land would have expired, before the hearing of the cause.1 And although this case is questioned by some writers,2 the learned Lord Chancellor St. Leonards said the cases establish the proposition, that a bona fide contract of this sort, not evading the act of parliament, but enabling the company to assist its views, and carry the act into effect, was valid, without reference to the reasonableness of the amount agreed to be paid." • Cromford and High P. Railway v. Stockport, D. & W. Bridge Railway, 29 Law Times, 245. 1 Lord Petre v. Eastern Counties Railway Co., 1 Railw. C. 462. 2 Shelford, 400. Hawkes v. Eastern Counties Railway Co., 15 Eng. L. & Eq. 358; s. c. before the Vice-Chancellor, 4 Eng. L. & Eq. 91, where it is considered that a railway company, having agreed to purchase an estate, although moved to do so for the quieting of opposition to a bill before parliament to enable them to extend a branch in a certain direction, which was subsequently abandoned, were nevertheless bound to perform their agreement with the owner of the estate. See also Shelford on Railways, 400. The case of Hawkes v. The Eastern *SECTION XI. Such Contracts enforced where the Railway is abandoned. 1. Where a certain sum is to be paid to | 2. Merely provisional contracts not always quiet opposition. enforced. § 12. 1. It has sometimes been held, that an absolute agreement made, by the promoters of a railway, to pay one a certain Counties Railway Co. came before the Lord Chancellor, St. Leonards, on appeal from the Vice-Chancellor in 1852, where the whole subject of the legality and binding character of this class of contracts is learnedly discussed, as well as the propriety of decreeing specific performances, and most of the cases elaborately and learnedly reviewed and compared. The conclusion to which that eminent judge arrives is, that even in a case where the company were not able to carry their project into full effect, but had abandoned it, they were nevertheless bound specifically to perform contracts of this kind, and that it was no objection to decreeing specific performance, that it would involve the necessity of paying the price of the land out of the general funds of the company, which had been raised for provisional purposes merely, and with no view of ultimately purchasing land and building the road; and that the land could be of no use to the company under present circumstances. One can scarcely fail to perceive in this case, that a principle, perhaps sound and just under some circumstances, is here pushed quite to its extreme verge. Damages at law might have been the more proper disposition of all interests concerned. that } The opinion of the Lord Chancellor is a masterly exposition of the view which he adopts. After disposing of the preliminary questions he proceeds: "In the case of Webb v. The Direct London and Portsmouth Railway, 9 Eng. L. & Eq. 249, there was originally a decree for specific performance, and after the decision in this case was made, the court having relied on that case, decision was reversed. Now it appears to me that that case was reversed upon the uncertainty of the contract; and if it was reversed upon any other ground, I should have required further time before I could accede to the doctrine that a company entering into such a contract as this is, could, upon any grounds of supposed illegality, get rid of the contract. If, as in some of these cases, several of which have been cited, the contract is so worded that it really depends upon this, that the company are not to pay unless they require the land; that is, they are to pay when they take the land, which assumes that they are not to pay unless they do take the land, that may be considered a conditional contract. I have nothing to say to such cases; but where, as in this case, it is an absolute and unqualified contract to take the land, I should certainly hold that no subsequent conduct on the part of the company could relieve them from the obligation they were bound by at the time they entered into it. The act of parlia sum to* quiet opposition, is valid, notwithstanding the contemplated work is never carried forward, and the injury to the opment having passed, this was as good a contract as a man ever entered into. I must look at it at the time when it was executed, at all events, at the time the act passed. It contemplated the act passing, and the act did pass exactly in the terms pointed out in the agreement. Well, then, it is a valid contract. Suppose, as was observed in argument very properly, suppose this agreement had been entered into after the passing of the act, would any man at the bar say that was a contract not to be executed? Looking at the authorities which have concluded that question, why should it not be as binding, being entered into before the act passed, as it must be admitted it would have been if executed immediately after the act passed? There is no magic in these things. The good faith, the truth, and the honesty of the transaction is to be looked at, there is no rule of law in it. If, therefore, Webb v. The Direct London and Portsmouth Railway Company is considered to decide anything adverse to the decision in this case, I should support the decision of this case, as far as my authority went. With great deference to others, I should support this decision certainly at the expense of the contrary view, that is, contrary to the view taken on that appeal, if that were to be so; but I apprehend it turned on the uncertainty of the contract. In Lord James Stuart v. The London and Northwestern Railway Company, the Master of the Rolls there decreed a specific performance, upon the authority of Webb v. The Direct London and Portsmouth Railway Company, before it was reversed. It was said that the reversal of that therefore displaced his authority. That also was reversed. There again were two questions: first, a question whether there was any concluded agreement, any binding agreement, — anything amounting to a positive contract; and next, there was great delay. Those cases were relied upon, and I can only repeat that I am not saying either of those decisions was not a proper decision, and I am not called upon to say that; but I say, if they are to be considered in opposition to a specific performance in a case like that before me, that I should totally disagree with them. It is a new view of the doctrine of this court, and it is a view which could not be supported consistently with the many authorities which exist on this subject. “Then it is argued with great force and insisted upon that there is illegality here, because the company is applying its funds to purposes not authorized by the act of parliament. Now, for that several cases were quoted. MacGregor v. The Dover and Deal Railway Company, 17 Jur. 21; s. c. 16 Eng. L. & Eq. 180; East Anglian Railway Company v. Eastern Counties Railway, 21 Law J. Rep. (N. s.) C. P. 23; s. c. 7 Eng. L. & Eq. 505; and the case of Bagshawe v. The Eastern Union Railway Company, 2 Hall & Tw. 201; s. c. 2 Mac. & Gor. 389. Those were all cases in which the company were really going beyond their powers; and one cannot but lament to see great companies like these, with an attorney always at their command, with every means of consulting counsel daily if they think proper, and which they resort to sufficiently, and with enormous capital, entering into a contract, with a full knowledge of all * poser, which the contract of quietus assumes, is never sustained.1 But such a contract is certainly based upon a principle their powers, and with legal advice constantly at command, turning round upon the party with whom they have contracted, and endeavoring to evade the contract upon the ground that the contract they entered into is beyond their powers and absolutely illegal on the face of it. One cannot but regret that these companies should resort to so unseemly a defence in courts of justice. I do trust we shall not hear of many more of these cases, but that these companies will take care that in entering into contracts with individuals who are not so well protected, they do not go beyond their powers, and one cannot but feel that they do not enter into a contract of this sort, if it be illegal, without being perfectly aware of its illegality. Nothing can be more indecent than for a great a solemn company to come into a court of justice, and to say that a contract contract which they have entered into — is void on the ground of its not being within their powers, not from any subsequent accident, not from any mistake or misapprehension, but because they thought fit to enter into it and meant to have the benefit of it, if it turned out for their benefit, and to take advantage of the illegality in case the contract should prove onerous and they should desire to get rid of it. Such highly dishonorable conduct I trust we shall not often see in courts of justice. "Now, these cases last referred to it is not proper for me to find fault with. They are cases in which it appears that the company did enter into engagements clearly beyond their powers, and the parties contracting with them must be supposed to have known that. It has been decided that they cannot be enforced, and I have nothing to say against those decisions; but this case does not fall within those decisions. There is nothing that has been stated to me of any sort or kind excepting this: That a Mr. Duncan, in part of his evidence, refers to the intention of the parties to form a junction with the Ambergate line, and in that way going right through the plaintiff's property, they being unable otherwise to get at the point which they proposed to get at by the curvilinear diverging line, which parliament rejected. Then they say, it is a fraud on the act of parliament. There is no such thing in the contract, no such thing in the answer. This court has not permitted any evidence to be given on a point of defence that was not raised in the answer; because if it had been raised, Mr. Hawkes could have shown there was no foundation for it. I believe there is no foundation. I believe that the company had in view that they might, by this short cut through Mr. Hawkes's property, get to a certain point; but Mr. Hawkes had nothing to do with that. The act provided for taking this property for the very purpose authorized by the act of parliament itself. The cases, therefore, do not touch this question at all, and, consequently, I am not embarrassed by their authority. "Then it is said, there is no mutuality; and, therefore, that the company could not enforce it, because they have no means of carrying the railway on; and that 1 Bland v. Crowley, 6 Railw. C. 756; 6 Exch. 522. |