SECTION XIV. Courts of Equity will restrain a Party from Opposition or Petition in Parliament. Such cases not common in practice. § 15. It is held in the English courts of equity altogether competent, and within their appropriate jurisdiction, to restrain a party from opposing a bill in parliament, by petition, if a proper case is made out, and by parity of reason from pursuing a petition in favor of an act of parliament.1 But such cases are not common in practice, and dependent upon peculiar circumstances. As where proceedings in parliament are in violation of express covenants, or for some other reason, in bad faith, and where damages, at law, are no adequate compensation. These cases are therefore determined much upon the same grounds as other cases of specific performance, and come properly under consideration in this connection. circumstances, I cannot say that the company has adopted the agreement, or is bound by its terms; and therefore I do not think I can compel them to admit the contract in an action at law." Very recently, in Williams v. The St. George's Harbor Company, 30 Law Times 84; s. c. 2 De G. & J. 547, it was held by the Master of the Rolls, that an agreement entered into by the promoters of a company before incorporation, is not binding on the company when incorporated, unless they subsequently do some act amounting to an adoption of it. This seems now to be the settled doctrine in the English courts. Ante, § 3, p. 636. 1 The Stockton & Hartlepool Railway Company v. The Leeds & Thirsk and The Clarence Railway Companies, 5 Railw. Cas. 691. In this case the injunction was granted by the Vice-Chancellor of England, Shadwell, but the order discharged, by the Lord Chancellor, Cottenham, on the ground that no proper case for the interference of a court of equity was made out, but distinctly affirming the jurisdiction. The Lord Chancellor says: "This court, therefore, if it see a proper case, connected with private property or interest, has just the same jurisdiction to restrain a party from petitioning against a bill in parliament as if he were bringing an action at law, or asserting any other right connected with the enjoyment of the property or interest which he claims." Heathcote v. The North Staffordshire Railway Company, 6 Railw. Cas. 358. In this last case it was held by the Lord Chancellor, that a contract to make a railway is not one of which a court of equity will compel the specific performance, but will leave the parties to their legal rights. SECTION XV. Contracts to withdraw opposition to Railway Projects, and to keep this secret, against sound policy and would seem to be illegal. 1. Principle of foregoing decisions obscure. 2. Not adopted in this country unless terms inserted in charter. 3. Recent change of views in English courts. 3-5. Statement of late case in which principle of Edwards v. Grand Junction Railway is doubted. 6. Act of incorporation should not be varied by oral testimony. 7. Contracts to quiet opposition not favored in this country. n. 5. Recent English and American deci sions. § 16. 1. The principle of the foregoing decisions, upon the subject of specific performance of contracts with the promoters of railway projects being enforced in courts of equity against the company, is, to say the least of it, somewhat obscure. Regarded as illegal contracts, it does not seem very apparent how they can, with much show of consistency, be specifically enforced in a court of equity. Ordinarily such contracts are not the subject of an action for their enforcement, in any court. That there may be extreme cases, where one has gained an unconscionable advantage by enticing a less-experienced person into participation in an illegal transaction, that a court of equity will compel the successful party to relinquish the fruits of the fraud, may be true. But the general proposition laid down, by Lord Eldon, upon this subject in the Vauxhall Bridge case,1 does not seem to gain much support from the case cited by him.2 * 2. It seems to us impossible to justify such contracts, beyond the mere sale of a definite pecuniary interest. And even that, 1 Ante, § 7, Jacob, 64. 2 Neville v. Wilkinson, 1 Brown, C. C. 543. The principle of this case, if we comprehend it, is a familiar one. It is that one who has represented to a creditor of his debtor, or to the father of the intended wife of his debtor, that his debt did not exceed a specified sum, shall not be allowed to enforce against such debtor any larger sum, the marriage having taken place in confidence of such representation. This representation was made, indeed by connivance, between the husband and his creditor, to deceive his wife's father. But so far as the creditor is concerned, the decision seems to rest upon the familiar principle of an estoppel in pais. Shirley v. Ferrers, cited in St. John v. St. John, 11 Vesey, 536. * 664 it would seem, should be secured by the insertion of definite provisions in the charter. We cannot find that any attempt has been made, in this country, to enforce against a corporation a contract made with the promoters to quiet opposition in the legislature. That it is often charged, that such and similar contracts are made by the promoters of railway projects with the friends of rival projects, and other opposers, and with the members of the legislature even, and large sums of money disbursed in fulfilment of such contracts, which is expected to be refunded by the company, and which is so refunded sometimes, is undeniable. But we apprehend, there is in this country but one opinion in regard to the legality and decency of such contracts, and that those who expect to profit by them have far too much sagacity to trust their redress to the judicial tribunals of the country. But that turnpike and bridge companies, and existing railways, whose profits are to be seriously affected by the establishment of new railways, and land-owners, whose property is to be affected by such railways, may properly stipulate for reasonable indemnity, as the price of withdrawing opposition, there can be, we apprehend, no question. But it seems to us, that the only proper mode of securing this indemnity is, by the insertion of special clauses in the charter of the new company. There can be no question in regard to the duty of courts of equity, in a proper case for their interference, to enforce an indemnity secured by the act.3 4 3. We infer from the late decision of the House of Lords upon this subject, that the views of the courts, in that country, are already undergoing some change upon this subject. In the case of Caledonian and Dumbartonshire Junction Railway v. Helensburgh Harbor Trustees, the facts were that the magistrates of Helensburgh agreed with the provisional committee of a projected railway company to allow the company certain privileges of taking land in the town, and laying rails for a side track to the harbor of H., the company to pay all the expenses of enlarging the harbor, and of obtaining an act of parliament for that purpose. The Harbor Act was obtained, and also the Railway 3 Gray v. The Liverpool & Bury Railway, 4 Railw. C. 235; Ante, § 181. Before the House of Lords in June, 1856; Law Rep. Oct. 1856, 350; s. c. 2 Macq. H. of L. 391; s. c. 39 Eng. L. & Eq. 28. Act. In the latter there was no provision authorizing, or referring to, the previous* agreement, and the railway company refused to perform their part, and did not claim performance of the other part. 4. On a bill for specific performance, brought by the harbor trustees, held, reversing the decision of the court of session, that specific performance could not be decreed, because the railway company had no power to make a harbor, which would be entirely beside the object of their incorporation. 5. It is said by the Lord Chancellor, and by Lord Brougham, "It seems that Edwards v. The Grand Junction Railway, 1 Railw. C. 173, and Lord Petre v. The Eastern Counties Railway, Id. 462, and other similar cases, which have followed them, are unsupported in principle, but these cases are distinguished from the present, by the nature of the contracts sought to be enforced, which were matters within the scope of the respective charters. The custom sometimes adopted by committees in parliament of omitting special clauses from acts of incorporation, on the agreement of the promoters that the objects proposed to be attained by these clauses should be carried out, appears to be illegal, and improper." 6. It seems very obvious, that, if these clauses can be foisted into the act of incorporation, by oral testimony, at the will of interested parties, it is exposing the operation of the act to all the inconveniencies and inconsistencies which might be expected to follow from subjecting written contracts to the same mode of exposition. Sound views and true policy seem to us to require a strict adherence to the act of the legislature, as in other cases. 7. And it is very questionable, whether, in this country, the contract to sell a definite pecuniary interest, as land which is required for the construction of the road, or turnpike and canal property, the value of which is to be seriously affected by the railway going into operation, at a price agreed, made with the promoters of the railway, but not inserted in the act, and which is not unreasonable, can be enforced against the company. It is certain, we think, that a contract going altogether beyond this, and stipulating large sums, beyond the supposed value of any of pecuniary interest to be secured, and for the obvious purpose quieting opposition, or securing favor and support, could not be enforced here, even against the contracting parties, and much less against the company, or at all events that it ought not to be.5 And in the more recent cases upon this subject very little countenance is given to the doctrine of the earlier English cases, which held the contracts of the * promoters of railways binding upon the company, upon the slightest grounds of adoption, and often by the most forced constructions. In the case of Preston v. Liverpool, Manchester & N. Railway, 35 Eng. L. & Eq. 92, although the case is professedly decided upon the construction of the particular contract, yet it is not difficult to perceive, in the very sensible reasons assigned for the construction adopted, a manifest disposition to abandon the former ground assumed by the courts upon this subject. The point is thus stated in the note to this latter case : "H. & Y. projectors of a railway company entered into a treaty with the plaintiff (a land-owner), whereby the latter agreed not to oppose their bill in parliament, and an agreement was executed by them, as the executive directors of the railway company, by which the company, upon its incorporation, was to pay to the plaintiff £1,000 for land of which he was the freeholder, and which was required for the purpose of making the railway, and £4,000 for residential damage." There were other stipulations in regard to tunnelling a portion of plaintiff's property, and erecting a station upon another portion. The company was incorporated, but not being able to raise sufficient funds, no attempt was made to construct the railway, and the money subscribed was returned to the shareholders. "Held that the contract was conditional, upon the making of the railway, and therefore that the plaintiff was not entitled to moneys payable thereunder. And quære, whether a company can be considered as the successors or assignees of the projectors, so as to come into existence subject to their contracts." See Ed. P. & Dundee Railw. v. Philip, in Ho. L. 28 Law T. 345. S. C. 39 Eng. L. & Eq. 41. There are numerous English cases upon this point since the date of the second edition of this work. In Aldham v. Brown, 2 El. & El. 398, in Exchequer Chamber, the extent of the responsibility of a subscriber to the preliminary association is extensively discussed upon an extended and somewhat refined state of pleadings. The result may be briefly stated as amounting to nothing more than that such subscriber is responsible for his ratable proportion of the provisional expenses, whether the scheme is finally abandoned or not. Where a deposit of eight per cent upon the estimated cost of a railway is paid into court, in compliance with the parliamentary orders upon filing petitions for certain railways, the proportion of such deposit will be paid out of court to the party duly representing the petitioners, upon any of the railway projects being abandoned. Aberystwith Railw. in re 7 Jur. N. S. 510. But upon the question being brought to the attention of the Lords Justices, id. 564, it was doubted whether the statute allowed the money to be repaid merely upon the withdrawal * 666 VOL. I. 4 |