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1866. applied in payment of a claim which has no foundation, or

in an alleged compensation for damage when none has been sustained. In the case of Sir T. Gage v. The Nero

market Railway Company (a) the defendants agreed to pay Railway Co. the plaintiff a certain sum, as purchase money, before they

entered upon any part of his lands, and it was held that they were not bound to pay the money unless they entered upon some part of his lands. There the Court intimated an opinion that if the Company could be considered as having absolutely covenanted to pay the money to the plaintiff in a reasonable time after the passing of the Act, they should bave thought the contract ultra vires and void. If a covenant to pay a landowner, within a reasonable time after the passing of the Act, a sum of money, independently of any entry upon his land, is ultra vires, a covenant to pay the money within a fixed period is equally so.—He also referred to Macgregor v. The Deal and Dover Railway Company (6).

Martin, B.—I am of opinion that both pleas are bad; and in my judgment sufficient does not appear upon the face of the declaration to shew that the contract is ultra vires. Moreover, I am disposed to think that, according to the 8th Pleading Rule of Trinity Term, 1853, the defence of ultra vires ought to be specially pleaded.

Now what are the facts ? An incorporated railway Company, called the Chichester and Midhurst Railway Company, were about to apply to parliament for an Act to enable them to make a new line of railway which would pass through the estate of the plaintiff, whereupon this agreement was entered into.

It is very common for railway Companies to apply to parliament and obtain authority to construct new lines, and it must be assumed from (a) 18 Q. B. 457.

(6) 18 Q. B. 618.





the fact of parliament so continually sanctioning contracts of this kind, that they are lawful. I am by no means satisfied that they are unlawful, and it seems to me rather fraudulent for a Company to enter into a contract of this kind, and then

say that it is not binding because it is ultra vires. However, I am of opinion that upon the face of this deed there is no ground for holding that the contract is illegal. It must be construed in the same way as other documents, with a view to ascertain what is the contract according to the natural and ordinary signification of the words. First, the defendants contract that in the event of the bill becoming an act of parliament they will construct the proposed railway so that it shall pass through the plaintiff's estate at certain defined points. Secondly, the defendants contract, in the like event, to purchase from the plaintiff, and the plaintiff contracts to sell to them, for the price of 20001., certain portions of his estate required for the construction of the railway. Thirdly, in the like event the defendants contract to pay the plaintiff, in addition to the sum of 20001., and within the space of three calendar months after the passing of the bill, a further sum of 2000). as a personal compensation to bim for the annoyance, inconvenience and disturbance, damage, loss and injury which he has sustained, and may or will sustain, in respect of the shooting and preservation of game upon his estate in consequence of the construction of the railway and of the parliamentary surveys and other works connected therewith and incidental thereto.

Now unless that contract is unlawful and void on the ground that it is ultra vires, the defendants have absolutely bound themselves to pay the plaintiff this 20001. Then what is their answer? They say, first, that the railway has not, nor has any part thereof, nor have any works been




1866. made or constructed, and that the defendants have not

required or taken for the purposes of the railway, or otherwise, any part of the plaintiff's land, &c. That is clearly

a bad plea, because the defendants have absolutely conRAILWAY Co. tracted to pay the money within a certain specified time,

and it is perfectly immaterial that they have not constructed the railway or taken the plaintiff's land.

Then, for a further plea (repeating the allegations in the first plea), they say that the plaintiff did not sustain annoyance, inconvenience, disturbance, damage, loss or injury in respect of the sporting and preservation of game npon his estate, in consequence of the construction of the railway, and that the land or estate, or plaintiff's interest in the same, was never injuriously affected by the execution of any works of the railway. That also may be quite true, but the defendants have contracted to pay the 20001. not only on account of damage already sustained, but in contemplation of anticipated damage arising from the construction of the railway.

For these reasons, I think that neither plea affords any answer to the plaintiff's claim, and consequently he is entitled to judgment.

BRAMWELL, B.—I am also of opinion that the plaintiff is entitled to judgment. Whether the doctrine of ultra vires was originally right, or not well founded, we cannot inquire here. It is established, and we must act upon it. · Therefore, if it appears that this contract is ultra vires, we ought to decide against the plaintiff. I

agree with Mr. Bovill that a defendant is not bound to plead that a contract is ultra vires, if that appears upon the face of the declaration. Whenever illegality appears, either by a declaration or any other pleading, a defendant






may avail himself of it although he has not pleaded it. But that rule is subject to this qualification, which is in truth part of the rule, that when it is intended to say that the facts are not true, but colourable, it should be so alleged. Therefore, if in this case the defendants meant to say that the agreement was colourable, and that, while they were merely buying off the plaintiff, they were pretending to pay him a compensation for injury to his land, when in point of fact he had sustained no damage but set up a fictitious claim for damage in order to obtain money, the

, defendants ought to have pleaded those facts, and they would have afforded a good defence to the action. As that has not been done we must assume that this is a real transaction.

Then is it ultra vires ? I cannot think it is. The defendants covenant that they will, within three months after the passing of the bill, pay the plaintiff the sum of 2000l. as and for a personal compensation to him for the annoyance, inconvenience and disturbance, damage, loss and injury which he has sustained, and may or will sustain, in respect of the sporting and preservation of game upon his estate “by or in consequence of the construction of the intended railway, and of the porliamentary and other surveys, and other works connected therewith and incidental thereto." Now, the defendants are the promoters of a new railway which would pass through the plaintiff's estate ; and they had the parliamentary and other surveys made of his land. They had no right to enter upon it without the plaintiff's permission. It is true the second plea says that the plaintiff did not sustain any damage, but it does not state that the claim for damage was a mere pretence. It must therefore be assumed that the defendants covenanted to pay a sum of money as compensation for some damage. It seems to me, therefore, that the question of ultra vires does not arise, for


want of an allegation that the agreement was colourable,
and though ostensibly made with one object was in truth
made with another.



AND Miduurst RAILWAY Co.

Pigott, B.-I am of the same opinion. The consideration is truly stated in the third clause, and I cannot see how the deed can be ultra vires. I agree with my brother Bramwell that if this transaction were merely colourable that fact ought to have been brought before us.

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POLLOCK, C. B.-I have not heard the whole of the argument, but so far as I have heard it I entirely concur in the judgment of the Court.

Judgment for the plaintiff.

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May 1, 3.

HUBBARD V. LEES. The 10th sec

EJECTMENT to recover possession of one undivided tion of the 7 Wm. 4 fourth part of a messuage, farm, &c., called “Shelmore & 1 Vict. c. 26, applies Farm,” in the parish of Norbury, in the county of Stafford. as well to

At the trial, before Montague Smith, J., at the last powers of appointment

Staffordshire Spring Assizes, the following facts appeared: created after that Act as - In the year 1818, one Thomas Johnson, being seised in to those previously fee of “ Shelmore Farm," died intestate, leaving two daughcreated.

Therefore a ters, Elizabeth and Mary, his co-heiresses at law. In the power, created after that Act, to appoint by will attested by three witnesses, is well executed by a will attested by two witnesses in conformity with the 9th section of that Act.

In questions of pedigree, entries of births, deaths and marriages of members of the family in a New Testament, produced from the proper custody, are evidence without proof of the handwriting.

So, also, correspondence between members of the same family, in which they respectirely address one another as relatives.

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