Carter v. Stubbs, C.P.

Gould, for the defendant.-The Court has no jurisdiction to rescind the order of Master Francis, as the action is dead -Whistler v. Hancock (1). The special circumstances under which the Court will give relief are such as shew that there is no fault on the part of the party seeking relief, or that his fault (if any) was induced by the act of the other party -Burke v. Rooney (2). In this case the time limited by the Statute of Limitations had expired since the date of the order, and the time cannot be enlarged where, in the absence of such enlargement, the claim would be barred by the Statute of Limitations (21 Jac. 1. c. 16).

Doyle v. Kaufman (3), The International Financial Society v. The City of Moscow Gas Company (4), Krehl v. Burrell (5) were also cited.

Reid, for the plaintiff.-The action is dead by virtue of the order of Master Francis; but that order is subject to appeal within the proper time, therefore the action is not dead beyond all possibility of revival.

It is admitted that Whistler v. Hancock (1) is against the order of Master Gordon rescinding the order dismissing the action, but the Court has power, under Order LVII. rule 6 (6), to enlarge the time for appealing. Burke v. Rooney (2) is in point. There is no pretence of injury to the defendant: no allegation of a defence on the merits. It was the usual practice before the Judicature Act to set aside judgment upon terms.

Gould replied.

(1) 47 Law J. Rep. Q.B. 152; Law Rep. 3 Q.B. D. 83.

(2) 48 Law J. Rep. C.P. 601; Law Rep. 4 C.P. D. 226.

(3) 47 Law J. Rep. Q.B. 26; Law Rep. 3 Q.B. D. 340.

(4) 47 Law J. Rep. Chanc. 258; Law Rep. 7 Ch. D. 241.

(5) 47 Law J. Rep. Chanc. 352; Law Rep. 10 Ch. D. 241.

(6) Order LVII. rule 6 is as follows: A Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.

LINDLEY, J.-I am of opinion that these orders of Mr. Justice Hawkins are correct. The plaintiff in this case sues for the recovery of a sum of money by way of damages. At the date of the issuing of the writ the time limited by the Statute of Limitations had not expired. The defendant obtained an order on the 17th of June, 1880, for the dismissal of the action in the event of the plaintiff failing, within seven days from the date of such order, to file answers to certain interrogatories administered to him—that is, the plaintiff was put upon terms. The plaintiff failed by some slip to comply with those terms. The defendant says that the action, in consequence of such failure, is dead, that the plaintiff is to be debarred for ever from his right, and that the defendant, by reason of the action becoming dead, through no fault of his, has acquired a right to have the advantage of such bar to the plaintiff's claim.

In

Now Order LVII. rule 6 gives us power to deal with this case by enlarging the time for filing the affidavit in question, and no construction has been put on this rule such as would preclude us from so dealing with it. The authorities only go so far as this in restraint of the use of the discretion given to the Court by the said rule-that the Court ought not to exercise it merely out of benevolence to the party seeking relief. Blyth v. Young (7) Lord Justice James, referring to M'Andrew v. Barker (8), says, "I think it was a little too strong that the Court has no discretionary power to enlarge the time for appealing, unless there has been conduct on the part of the respondent raising an equity against him. The Court did not intend to lay down a positive rule in every case -it was not intended, for instance, to apply to the case of inevitable accident."

to say

It is, therefore, not necessary that the Court should find something in the conduct of the defendant which would raise an equity against him to entitle the plaintiff to the relief he seeks. The case of Whistler v. Hancock (1) has been

(7) Law Rep. 13 Ch. D. 416.

(8) 47 Law J. Rep. Chanc. 340; Law Rep. 7 Ch. D. 701.

Carter v. Stubbs, C.P.

cited for the defendant, as precluding us from affirming the order of Master Gordon rescinding the order of Master Francis dismissing the action, but in accordance with the powers given by Order LVII. rule 6, and the principles laid down in Burke v. Rooney (2), we can enlarge the time in the said order of Master Francis limited for the delivery of the affidavit in answer from seven days to fourteen, and we can also enlarge the time for appealing from that order. I am, therefore, of opinion that the order of Master Gordon should be discharged, but that the orders of Mr. Justice Hawkins should be affirmed. Under the circumstances, the costs of all the applications at chambers must, of course, be paid by the plaintiff; but as each has partially succeeded on this occasion, no order will be made as to the costs of this appeal.

LOPES, J.-I am of the same opinion. The case of Burke v. Rooney (2) shews that the Court has full power to extend the time for appeal, and I am of opinion that this is a proper case for extension. This is only assimilating the present to the old practice of setting aside a judgment upon terms. The order of Master Gordon must be discharged, and the appeals from the orders of Mr. Justice Hawkins be disallowed. The costs of the proceedings prior to this appeal must be the defendant's; but, as regards this appeal, there will be no order as to costs.

Order of Master Gordon, dated the 9th of July, 1880, discharged. Orders of Mr. Justice Hawkins, dated the 20th of July, 1880, affirmed. Plaintiff to pay all costs at chambers. No costs of appeal to either side.

Solicitors-Wild, Browne & Wild, for plaintiff; Hunter, Gwatkin & Haynes, for defendant.

[IN THE EXCHEQUER DIVISION.]

1880. Nov. 4.

{

THE MIDLAND WAGGON COMPANY

V. THE POTTERIES, SHREWSBURY
AND NORTH WALES RAILWAY
COMPANY.

Railway Company - Execution against Rolling Stock or Plant-30 & 31 Vict. c. 127 (The Railway Companies Act, 1867), s. 4 -Railway closed for Traffic.

Rolling stock and plant of a railway company, whose railway had fallen into disrepair, and who had been obliged by financial difficulties to close their railway, were seized in execution :-Held, that 30 & 31 Vict. c. 127. s. 4, restricting execution against the rolling stock and plant of a railway company, was not confined to a railway which was open for traffic, but applied, although the railway had been closed for traffic and it was doubtful whether it would ever be re-opened.

This was a summons under the Railway Companies Act, 1867, ss. 4 and 5 (1), referred by Lopes, J., at chambers, to

(1) The Railway Companies Act, 1867 (30 & 31 Vict. c. 127) s. 4, enacts: "The engines, tenders, carriages, trucks, machinery, tools, fittings, materials and effects, constituting the rolling stock and plant used or provided by a company for the purposes of the traffic on their railway, or of their stations or workshops, shall not, after their railway or any part thereof is open for public traffic, be liable to be taken in execution at law or in equity, ... where the judgment on which execution issues is recovered in an action on a contract entered into after the passing of this Act, or in an action not on a contract commenced after the passing of this Act; but the person who has recovered any such judgment may obtain the appointment of a receiver, and, if necessary, of a manager of the undertaking of the company, on application by petition in a summary way to the Court of Chancery. . . ; and all money received by such receiver or manager shall, after due provision for the working expenses of the railway and other proper outgoings in respect of the undertaking, be applied and distributed under the direction of the Court in payment of the debts of the company and otherwise according to the rights and priorities of the persons for the time being interested therein; and on payment of the amount due to every such judgment creditor as aforesaid the Court may, if it think fit, discharge such receiver, or such receiver and manager."

Section 5 enacts that where property of a company has been taken in execution and a question arises whether it is liable to be so taken, not

POLLOCK, B.-The question arising in this case, which has been ably and clearly argued, is of considerable importance, and there appears to have been as yet no decision upon it. I say "the question,' the question," for we may address ourselves to the main question alone, and lay aside questions as to what constitutes " rolling stock and plant," our suggestion that those questions should be left to be settled between counsel having been accepted.

Mr. Harrison has satisfied us that the closing of the railway is occasioned by financial difficulties which make it doubtful whether the railway will ever be reopened. The question we have to consider is, whether the Act 30 & 31 Vict. c. 127. s. 4 (1) applies notwithstanding such a state of things.

My opinion upon the construction of the enactment will rest upon section 4 itself together with section 23. Very little help if any in construing section 4 is to be derived from sections 6 to 22, which deal with schemes of arrangement by insolvent companies; and it has not been suggested that any other part of the Act is material to be considered.

Before examining the terms of the Act, let us see what were the circumstances which preceded the passing of the enactment. Railway companies possessed rolling stock as well as land. And if a creditor of a railway company wanted payment he would naturally enough cause its rolling stock to be seized in execution, and so inconvenience the public by stopping the working of the line. Consequently, and by reason particularly of a well-known case, this enactment was passed. The Act, however, be it observed, besides giving protection to the rolling stock and plant of a railway company, deals with the priorities thereafter to exist between the company's creditors.

Let us now see what is the language of the enactment. [The learned Judge read section 4.] Nothing could well be fuller than that language. I should have a difficulty in narrowing the word "used" (in the words "rolling stock and plant used or provided by a company for the purposes of the traffic upon their railway") to rolling stock and plant which is either being used or going to be used again. But the word "used" is followed by the words or provided;" and it appears to me clearly that rolling stock and plant which a company have once provided for the purpose of traffic upon their railway is not by the fact that the railway has been closed prevented from being "rolling stock and plant provided by the company for the purpose of the traffic upon their railway." The direction as to making" due provision for the working expenses of the railway," though it af fords some ground for the argument that the section is limited to a railway which is at the time a working railway, is very far from necessitating such limitation. The Act is there simply providing for the more frequent state of things. There appears to me, therefore, to be nothing in section 4 so to extend the limitation by the words "after the railway . . . is open for public traffic" as to make the section apply only when the railway is and remains open for traffic. Section 23, which, subject as there mentioned, gives to debenture stockholders "priority against the company and the property from time to time of the company over all other claims on account of any debts incurred or engagements entered into by them after the passing of this Act," is strong to shew that section 4 is not intended to apply only when the railway is open for traffic. I am of opinion that the sheriff must be ordered to withdraw.

STEPHEN, J., concurred, adding that the Court had not to consider whether the enactment would apply to the case of a railway altogether abandoned and ceasing to be a railway.

Order accordingly, with costs.

Farwell asked that the sheriff might have his costs on the ground that the

Solicitors-Sharpe, Parkers, Pritchard & Co., agents for Ryland, Martineau & Co., Birmingham, for plaintiffs; S. F. & H. Noyes, for defendants.

[IN THE QUEEN'S BENCH DIVISION.] 1880.

Nov. 12, 17.}

ROBINSON v. CURRY.

Action for Penalty-Limitation-Party grieved, 3 & 4 Will. 4. c. 42. s. 3-Goldsmiths' Company-Counterfeit Hall Marks -7 & 8 Vict. c. 22.

To an action for penalties brought by the Goldsmiths' Company of London against a defendant for having sold divers silver wares bearing a counterfeit of their mark, under section 3 of 7 & 8 Vict. c. 22, the defendant pleaded the Statute of Limitations, 3 & 4 Will. 4. c. 42. s. 3, that the plaintiff was a "party grieved" within that Act, and could not sue after two years:-Held, on demurrer, a good plea.

Semble, that section 3 of 7 & 8 Vict. c. 22 applies to all the specified Companies of Goldsmiths, so as to entitle any one of them to sue a defendant for penalties in respect of a counterfeit not only of its own mark, but of the mark of any other of the companies.

Demurrer to a defence of the Statute of Limitations.

The statement of claim alleged in paragraph 1 that the plaintiff was the deputy-warden of the Company of Goldsmiths in London, and sued as such officer, for and on behalf of the said Company of Goldsmiths, by virtue of the statute 7 & 8 Vict. c. 22, intituled "An Act to Amend the Laws now in force for preventing fraud and abuses in the marking of gold and silver wares in England."

2. The defendant is, and at all times hereinafter mentioned was, a dealer in VOL. 50.-Q.B., C.P. & ExcH.

silver wares, carrying on business at Great Sutton Street, Clerkenwell.

3. The defendant at divers times in the year 1872, being such dealer in silver. wares, sold to Charles Hill divers wares of silver, amounting, in the whole, to 643 articles.

Paragraph 4 set out the articles.

5. At the several times when the said wares of silver were so sold by the defendant, each of the said wares had thereupon, against the form of the said statute, a counterfeit imitation of the mark of an instrument theretofore used by the said Company of Goldsmiths in London for marking silver wares.

6. By reason of the premises and by virtue of the said statute, the defendant forfeited and became liable to pay for amounting in the whole to 6,4301. every ware so sold by him the sum of 101.

7. The plaintiff, as such officer of the said Company of Goldsmiths in London, for and on behalf of the said company, claims 6,4301.

The statement of defence, after denying the allegations of the offences charged in the claim, pleaded in paragraph 4 that the alleged cause of action did not accrue within two years before this action was brought.

To this paragraph the plaintiff demurred, "on the ground that this action is not an action for penalties, damages or sums of money given to the party grieved, and is therefore not bound by the statute 3 & 4 Will. 4. c. 42. s. 3, or by any other statute in that behalf."

A. Wills (Coxon with him), in support of the demurrer.-The Goldsmiths' Company are not parties grieved within the Statute of Limitations, but they have a public duty to perform, in the course of which they sue for penalties against persons infringing the Acts.

The companies were constituted guardians of the purity of the gold and silver standards for the public benefit. And that the fines do not go to enrich themselves appears from the provisions in the old Act, 12 Geo. 2. c. 26. s. 19, where it was enacted that the assay fees should be reduced by the overplus of fines not wanted for actual expenses incurred.

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