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1865.

RICHARDS

v.

HARPER.

In the following Hilary Vacation (February 26), the judgment of the Court was delivered by

MARTIN, B., who said :-There is a case of Richards v. Harper, which was argued in Hilary Term, 1865, and again in the following Michaelmas Term.

It involved the question whether the land of the plaintiff, who was an assignee, was bound by a covenant entered into by his assignor with the owner of the adjoining land, that he and his assigns might work the mines beneath it without being compelled to make compensation for any damage done to the buildings on plaintiff's land. At the time the covenant was entered into the plaintiff's land was of copyhold tenure, but it was afterwards enfranchised. A judgment has been prepared in which my brothers Channell and Pigott concur with me in opinion that, assuming the plaintiff's land to be of freehold tenure, the right claimed by the defendant does not exist, and the plaintiff is entitled to judgment. The Lord Chief Baron dissents from that view, and of opinion that, assuming the plaintiff's land to be of freehold tenure, the plea is good, and the defendant entitled to judgment.

But upon the second argument it was insisted that, in consequence of the plaintiff's land being copyhold, it was not bound by the covenant; and the Lord Chief Baron concurs in that view. There is therefore the unanimous opinion of the Court that the plaintiff is entitled to judgment.

Under these circumstances, we have considered it better not to deliver the judgment which has been prepared; and we pronounce judgment for the plaintiff on the demurrer to the replication.

Judgment for the plaintiff.

1865.

SAVIN V. THE HOYLAKE RAILWAY COMPANY.

DECLARATION.-That the plaintiff, before the passing of a certain act of parliament, &c. (26 & 27 Vict. c. ccvii.), intituled "An Act for making and maintaining railways from Birkenhead and Poulton-cum-Seacombe to Hoylake, in the county of Chester," bestowed his work and labour of great value, to wit, of the value of 50007, and paid, laid out and expended divers sums of money, amounting in the whole, to wit, to 30007., in and about the

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poration, upon agreement

an express

that he would

pay all the

costs of ob

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applying for, obtaining and passing of the said act of parliament, and in and about divers other matters taining and and things and expenses preparatory and relating And whereas also it was in the said Act that all the costs, charges and expenses of and to the obtaining and passing of the said otherwise in relation thereto should be paid by the defend

thereto. provided incident

passing it. The Act

passed, and

provided that

all the costs

or

Act

ants. And the plaintiff says that he has done all things and all things have been done and have happened and exist, and all times have elapsed necessary to entitle the plaintiff to be paid the said costs, charges and expenses by the defendants, but the defendants have not paid the same. Plea, by way of defence on equitable grounds.-That before the passing of the said Act the plaintiff was desirous of obtaining the passing of the said Act, and of constructing the railway thereby authorized and empowered to be made, in order that certain other railways in which the plaintiff was then interested might be connected with the Birkenhead Docks, which said connection would be effected by the passing of the said Act, and the construction of the railway in the declaration mentioned. And the de

of obtaining and passing it should be

paid by the Company.Held, that the bound by his plaintiff was agreement,

and could

not recover

the costs.

1865

SAVIN

V.

HOYLAKE

fendants further say that he, the plaintiff, before the application to Parliament for the said Act, and before any part of the plaintiff's claim in that count mentioned was incurred, RAILWAY CO. induced certain other persons to become the promoters of the Company by the said Act incorporated, and to co-operate with the plaintiff in the applying for and obtaining the passing of the said Act, upon the faith of an express agreement between the plaintiff and the said persons that he, the plaintiff, would bear and pay all the costs, charges and expenses of applying for and obtaining and passing the said Act, and in relation thereto, and that neither the said persons, nor the said Company when incorporated, nor any other persons should be liable to the plaintiff for the payment to him of the same or any part thereof.

Demurrer, and joinder therein.

Littler, in support of the demurrer.-The Company's Act (26 & 27 Vict. c. ccvii., s. 47), having declared that all the costs of obtaining and passing it, or otherwise in relation thereto, shall be paid by the Company, they cannot in any court of law or equity exempt themselves from payment by setting up an agreement between the plaintiff and third persons that they shall not be liable to the plaintiff for those costs. As a general rule, a person cannot, either at law or in equity, avail himself of a contract to which he is not a party. [Pollock, C. B.-According to your argument, the Act would entitle a person to sue the Company for work and materials, although at the time he did the one and supplied the other he expressly declined any remuneration. Suppose some person had given a bond to indemnify the Company against these costs, would the Act of Parliament have abrogated it?] The Company were parties to the passing of the Act, and having entered into a solemn engagement with the sanction of the legislature, they are precluded

1865.

SAVIN

v.

from denying that the original agreement is rescinded. [Pigott, B.-Is the provision in the Act anything more than an authority to pay expenses?] In Cruise Dig. vol. 5, p. 23, s. 49, it is said that "a private act of parliament appears RAILWAY CO. to have been formerly considered as an assurance of so high

a nature that, although it was obtained by fraud, yet it could not be relieved against by any of the Courts of law or equity, but only by the power that made it, that is, by Parliament." [Pollock, C. B.-These Acts are a mere bargain or contract between the public and the Company.] A contract with the projectors of a Company is not valid unless it be one which might be lawfully made by the Company after its incorporation: Preston v. The Liverpool, Manchester and Newcastle-upon-Tyne Junction Railway Company (a). [Pollock, C. B.—Suppose the plaintiff had agreed with the promoters of the Company to do the work for 1007., could he, after the Act passed, have sued them for all the cost beyond that amount?] As the Act overrides the prior agreement, he might. [Pigott, B.-In truth, as regards this plaintiff, no costs have been incurred, because he agreed to do the work for nothing.] Then the Act has no meaning, because no person is entitled to these costs except the plaintiff: Wyatt v. The Metropolitan Board of Works (b).

R. E. Turner appeared to support the plea, but was not called upon to argue.

Per CURIAM (c).—We are all of opinion that the plea is good, and our judgment will be for the defendant.

(a) 5 H. L. Cas. 605.

Judgment for the defendant.

(b) 11 C. B. N. S. 744.

(e) Pollock, C. B., Bramwell, B., and Pigott, B.

HOYLAKE

1865.

Nov. 25.

BOOTH V. TAYLOR.

A defendant THE declaration stated that a certain warehouse was in

cannot plead to a claim in a declaration for a writ of injunction.

the possession of J. H. and G. J., as tenants thereof to the plaintiff, the reversion thereof then belonging to the plaintiff, in which said warehouse there of right were and still ought to be divers windows, through which the light and air ought of right to have entered, and still ought to enter into the said warehouse: Yet the defendant prevented and obstructed the light and air from entering through the said windows into the said warehouse by erecting buildings, &c. And the plaintiff also claims a writ of injunction to restrain the defendant from the continuance and repetition of the injuries above complained of, and a committal of other injuries of a like kind relating to the same right.

Plea. The defendant, for a plea upon equitable grounds to the said claim in the declaration made for a writ of injunction, except so far as the same relates to the committal of other injuries of a like kind relating to the same right, says that the said alleged prevention and obstruction of light and air were originally caused by the erection by the defendant of certain buildings upon certain lands next adjoining the warehouse in the declaration mentioned; and that after the defendant had so erected the said buildings, and before any complaint had been made by the plaintiff in respect thereof, and before the commencement of this suit, the defendant duly and lawfully demised certain portions of the said buildings to certain persons for certain terms therein respectively, which said demises respectively had not, nor had any or either of them, respectively, expired or been otherwise determined at the time of the

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