dictment charging him, in the first count, with stealing money to the amount of 100%., the property of Henry Allen; in the second count with receiving the same knowing it to have been stolen; and in two other counts the ownership of the money was laid in the London and Westminster Bank. It appeared in evidence that the prosecutor, Henry Allen, had paid moneys amounting to 9007. into the London and Westminster Bank on a deposit account in his name, and on the 27th April 1868, that sum was standing to his credit at the bank. On that day the wife of Henry Allen presented at the bank a forged order purporting to be the order of the said Henry Allen for payment of the deposit, and the cashier at the bank believing the authority to be genuine, paid to her the deposit and interest in eight bank notes of 1007. each and other notes. Among the notes of 100%. was one No. 72,799, dated 19th Nov. 1867. On the 1st July 1868, the wife of Henry Allen left him and his house, and she and the prisoner were shortly afterwards found on board a steamboat at Queenstown, on its way from Liverpool to New York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her possession nearly all the remainder of the notes obtained from the bank. The note for 1007, No. 72,799, was proved to have been paid away by the prisoner in payment for some sheep in May 1868, and he said he had it from Mrs. Allen. Upon this evidence it was objected by prisoner's counsel that the counts alleging the property in Henry Allen must fail, as the note had never been in his possession; and that as to the other counts, the evidence did not show any larceny of the not from the bank by the wife, but rather an obtaining by forgery or false pretences by her, and that the receipt by the prisoner from her was not a receipt of stolen property. I held, however, that the forged order presented by the wife was, under the circumstances, a mere mode of committing a larceny against the London and Westminster Bank, and that the prisoner was liable to be convicted on the fourth count. The jury found the prisoner guilty on that count, and I respited judgment, and reserved for the consideration of the court the question whether the obtaining the note from the bank by Mrs. Allen, under the circumstances stated, was a larceny by her. If not, the conviction must be reversed. The prisoner remains in custody awaiting judg A. J. II. Collins for the prisoner.-The prisoner was convicted on the fourth count of receiving the money, knowing it to have been stolen from the London and Westminster Bank, and therefore, if there was no larceny committed on the bank, the conviction must be quashed. In Story on Agency, par. 114, it is said: "It may be stated as a general proposition, that the officers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business of such institutions, and that their acts, within the scope of such usage, practice, and course of business, bind the bank in favour of third persons having no knowledge to the contrary. The cashier of a bank is usually intrusted with all the funds of the bank in cash, notes, bills, and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank." And in par. 115: "If the cashier of a bank should pay to a bona fide holder a forged cheque drawn upon the bank, the payment could not be recalled, it would be obligatory; for it is within the duty of the cashier to answer drafts drawn on the bank, and the bank entrusts him with an implied authority to decide upon the genuine [C. CAS. R. ness of the handwriting of the drawer of the cheque when presented for payment:" (Bank of United States v. Bank of Georgia, 10 Wheat. R. 332.) So also in Chambers v. Miller, 32 L. J. 30, C. P., it was held that the transfer of money by a cashier of a bank in payment of a cheque drawn by a person who has no assets at the bank is complete, and the | cashier has no right to take the money back from the payee by force, and the bank could not have recovered from the payee in an action. [BLACKBURN, J.-There the cheque was a genuine one, but the drawer's account was overdrawn. That case is clear enough.] In Reg. v. Jackson, 1 Moo. C. C. 119, where a pawnbroker's servant, who had a general authority from his master to act in his business, delivered up a pledge to the pawnor upon receiving a parcel which he supposed to contain diamonds, and under that belief parted with the pledge entirely, but the parcel contained stones of no value, this was holden to be no larceny, because the servant who had a general authority from the master parted with the property and ownership, not merely with the possession. So in Reg. v. Adams, 1 Den. 38, C. C., where the prisoner went to a shop with a forged order, and obtained from the shopkeeper a quantity of bacon and hams, the shopkeeper believing the order to be a genuine one, this was holden not to be a larceny. In 1 Hale's P. C. 506, it is said "If A. comes to B. and by a false message or token receives money of him, and carries it away, it is no felony, but a cheat, punishable by indictment at common law, or upon the statute of 33 Hen. 8, c. 1, by setting in the pillory." See also Roscoe C. L. 612. The same point was determined in Rex v. Parks, 2 East P. C. 671, and Rex v. Atkinson, 2 East P. C. 673. The distinction is between servants or agents having a general limited authority only to deal with their master's property. In Reg. v. Barnes, 2 Den. C. C. 59. a servant had authority in the absence of the chief clerk to buy kitchen stuff for his masters, and to make payment to the seller; the chief clerk was authorised to repay A. for such purchases on production by A. of a ticket containing a statement of such a purchase having been made. A. produced to the chief clerk a ticket containing a statement of a purchase which had not in fact been made, and thereupon the chief clerk paid him 2s. 3d., this was held not to be larceny, but false pretences. S where a clerk in a savings bank obtained a cheque from the manager upon a false representation that a depositor had given notice of withdrawal, and for the purpose of handing it over to the depositor, and it was found to be the course of business that if a depositor could not attend at the proper time to receive the cheque it was handed to the prisoner as the agent of the depositor, this was held to be false pretences, and not larceny. Upon these authorities it is submitted that this conviction must be quashel. Poland for the prosecution. This is a case of larceny, for the cashier of the bank had no powe to part with the property in the money. No doubt the authorities are conflicting, but in most of the cases cited for the prisoner there was an intention at the time to part with the property alleged to be stolen, as in Reg. y. Adams and Rex. v. Atkinson, As to Reg. v. Jackson, which is somewhat like the present, the judges say that the servant had a general authority, and did part with the property and ownership. [BOVILL, C. J.-The cashier of a bank is the only person who deals with the money in the till for the purpose of paying it away over the counter, and he is the person who is to judge of the genuineness of the signature to a cheque.] But the money does not pass to the payee when obtained by a deceit practised on the clerk. In Reg. v. Longstreet, 1 Moo. C. C. 137, it was held that getting a parcel from a carrier's servant by falsely pretending to be the person to whom it was directed, if it be taken, aimo furandi, is a larceny. [BLACKBURN, J.-There the servant had no authority to part with the ownership to any but the right person.] The carrier's servant would have the same authority as the cashier to decide as to the identity of the person owning the parcel. The bank clerk can scarcely have power to give away money on what turns out to be a fictitious cheque. In Rex. v. Wilkins, 1 Leach, C. C. 520, where the prisoner, animo furandi, obtained by a false pretence hats from the prosecutor's servant, who was sent to deliver at a particular place, this was holden to be larceny. [BLACKBURN, J.-There the servant had no authority to part with the property at all.] In Rex v. Small, 8 C. & P. 46, where a servant was sent with goods and change for a crown piece to a particular house, and, on the way, the prisoner met the servant and fraudulently induced him to part with the goods and change for a bad crown piece, this was held to be larceny. In the note to that case is the following passage: "2 Fost P. C. 673; 1 Leach 520: Roscoe, p. 493. In that case Gould, J., in stating the reasons of the judgment, laid down the following rules as clearly settled; that the possession of personal chattels follows the right of property in them; that the possession of the servant was the possession of the master, which could not be divested by a tortious taking from the servant; that this rule held in all cases where servants had not the absolute dominion over the property, but were only intrusted with the care or custody of it for a particular purpose." In Reg. v. Stewart, 1 Cox C. C. 174, where goods were ordered by the prisoner to be sent to a particular place; and they were so sent by a servant who had orders not to part with them without the price, and the prisoner induced the servant to take a valueless cheque as payment, and so obtained the goods, this was holden to be larceny. On these grounds it is submitted that the Conviction was good. [C. CAS. R. BYLES, J.-I am of the same opinion. My judgment is founded on the weight and balance of authority. BLACKBURN, J.-In the old times larceny was a capital felony, and the taking of the property stolen must have been proved to have been against the will of the owner. The courts held that where the owner intended to part with the property in the thing alleged to have been stolen that was not larceny; and also that where the servant or agent had a general authority to part with his employer's property in the management of the business, there the offence was not larceny if he intended to part with the property wrongfully obtained. The case was different if the servant or agent had not authority to part with the property. The difficulty is to decide whether a given case falls within the one class or the other. Where a servant has no general authority to deal with his master's property, but he is told to deliver a parcel to A. B. and no one else, then he is acting under a limited authority, and it was held by the judges that a person obtaining the parcel from the servant by fraud was guilty of larceny. The same judges had a short time previously decided the case of Rex v. Jackson. A cashier of a bank has a general authority to part with his master's money if a person presents a cheque to him, if he believes the cheque to be a genuine one, and if he does so, and it turns out to be a forged cheque, the offence is not larceny. Lusп, J.-I am of the same opinion. The cashier of a bank is placed at the counter for the purpose of parting with the money of his masters in payment of cheques as he thinks fit. In this case the money was parted with by the cashier to Mrs. Allen for a cheque which he believed to be genuine. It is not a case of larceny therefore. Conviction quashed. Monday, Nov. 16, 1868. BOVILL, C. J., CHANNELL, B., BYLES, BLACKBURN, and LUSH, JJ.) REG. v. RALPH BARROW. Rape-What amounts to. The prosecutrix with her baby in her arms was lying in bed between sleeping and waking, and her husband was asleep beside her. She was completely awakened by a man having connection with her, and pushing the baby aside. Almost directly she was completely awakened she found the man was not her husband, and awoke her husband: BOVILL, C. J.-I am of opinion that this conviction cannot be supported. The distinction between larceny and false pretences is very material. The (Before one is a felony and the other a misdemeanor; and although, by reason of modern legislation, it has become not of so much importance as formerly, it is still desirable to keep up the distinction, because in point of law there must be a taking of the property against the will of the owner, which is the essence of the crime of larceny. The authorities cited by the counsel for the prisoner show that where the property has been obtained voluntarily from the owner, or a servant acting within the scope of his authority, the offence does not amount to larceny. The cases cited for the prosecution were cases where the servant who parted with the property had a limited authority only. In the preSent case the cashier of the bank was acting within his authority in parting with the possession and property in the money. And if, as in this case, that was done with the intention of divesting his employers of the property, the conviction cannot be sustained. Under these circumstances the con viction must be quashed. CHANNELL, B.-I am of the same opinion. The cases cited for the prisoner are distinguishable from those cited for the prosecution. In the one set of cases the servant was acting under a general authority; in the other, under a special authority. If the transaction is one where the servant had a general authority, and he has done all that he intended to do in order to pass the property, the Property passes from the master. Therefore, here the money passed to Mrs. Allen, and cannot be said to have been stolen. The conviction is bad. Held, that a conviction for a rape upon this evidence could not be sustained. Case reserved for the opinion of the Court by Fitzroy Kelly, C. B., at the Liverpool Summer Assizes 1868. This was an indictment for rape. An alibi was set up, and a great deal of evidence given for and against it, but the jury, to my entire satisfaction, found the prisoner guilty. The question is, whether the offence, as proved, amounted in point of law to a rape. This question depended entirely upon the evidence of the prosecutrix, Harriet Geldart, which was as follows:-I and my husband lodge together at William Garner's. We sleep up stairs on the first floor, and were in bed together on the night of Saturday, the 21st June. I went to bed about twelve o'clock, and about two o'clock on Sunday morning I was lying in bed, and my husband beside me. I had my baby in my arms, and was between waking and sleeping. I was completely awakened by a man having con = NISI PRIUS.] JACKSON v. SIR R. MAYNE. [NISI PRIUS. nection with me, and pushing the baby aside out of dismissal of the plaintiff from the office of an inspector my arms. He was having connection with me at of hackney carriages in the metropolitan district, the moment when I completely awoke. I thought and the grounds thereof. The plaintiff had been it was my husband, and it was while I could count twenty-seven years in the police force, and in 1860 was five after I completely awoke, before I found it was appointed an inspector of hackney carriages for the not my husband. A part of my dress was over my metropolis, from which office he was dismissed by face, and I got it off and he was moving away. As Sir Richard Mayne in Nov. 1866. The salary was soon as I found it was not my husband, I pulled | 1207. per year, and by the police regulations an inmy husband's hair to awake him. The prisoner spector of hackney carriages was allowed the jumped off the bed. expenses of omnibuses, but not cabs, and also 1s. per day for refreshment when more than a mile from his home. Col. Paschal was the chief of the hackney carriage department of the police, and the inspector's accounts were examined by him previous to their being allowed. There was a daily return of the distances traversed by each inspector, and also of their expenses, and Col. Paschal tested the accounts by the inspectors' statements and a consideration of the business they had been engaged in from day to day. He was called as a witness by the plaintiff, and said that he had no dissatisfaction to express as to the plaintiff's accounts, and the plaintiff said there was no complaint against him previous to the dismissal, and that he had what was known in the force as a "clean sheet." In Aug. 1866, for some cause or other not stated, Sir Richard Mayne appointed Mr. May, the chief clerk in Scotland-yard, and Inspector Walker, to examine the accounts of the inspectors of hackney carriages (of whom there were four only), that had been passed by Col. Paschal. These two gentlemen took a given month, and selected four days out of that month, and examined the inspectors personally as to their expenses on those days, and reported to Sir R. Mayne unfavourably as regards the plaintiff and two others. Sir R. Mayne came to the conclusion that there was not a proper control kept over the expenditure in this department, and first virtually suspended Col. Paschal and three of the four inspectors, including the plaintiff, and subsequently dismissed them. Col. Paschal appealed to the Home office and was reinstated by Mr. Walpole, but, as the AttorneyGeneral said, with a caution. It is the practice to send round to the different metropolitan police stations printed sheets or circulars from time to time containing the names of all persons in the force who have been fined, suspended, dismissed, or these sheets are read out publicly to the men at in any other way censured for misbehaviour, and each station, and for the publication and reading out to the men of the following entry on one of such police sheets this action was brought : On cross-examination she added: Till I got my dress off my face, I thought it was my husband. After he had finished I pulled the dress off my face. I was completely awakened by the man having connection with me, and the baby being moved. On re-examination she said: The baby was pushed on further into the bed. The jury found this evidence, as I have stated it, to be true. Upon these facts the prisoner's counsel, Mr. Cottingham, submitted that the indictment was not sustained, and quoted 1 Russell on Crimes, edit. of 1843, 677; R. v. Jackson, Rus. and Ry., 487; Reg. v. Saunders, 8 C. & P. 265; R. v. Williams, S C. & P. 286; Reg. v. Camplin, 1 Den. C. C. 89; Reg. v. Fletcher, 2 Dears. 63; and 8 Cox C. C. 131; was also referred to. I thought, especially on the authority of the judg ment delivered by Lord Campbell in Reg. v. Fletcher, that the case was made out, inasmuch as it was sufficient that the act was done by force, and without consent before or afterwards; that the act itself, coupled with the pushing aside the child, amounted to force, and there was certainly no consent before, and the reverse immediately afterwards; but I reserved the point for the Court of Criminal Appeal. FITZROY KElly. No counsel appeared on either side. It BOVILL, C. J.-We have considered this case. does not appear that the prosecutrix was asleep or unconscious at the time when the first act of con nection was committed. What was done was, therefore, with her consent, though that was ob tained by a fraud. We are of opinion that this case comes within that class of cases in which it has been decided that where, under such circumstances, consent has been obtained by fraud, the offence does not amount to rape. The rest of the court concurred. Conviction quashed. NISI PRIUS. COURT OF COMMON PLEAS. Monday, Dec. 7, 1868. (Before KEATING, J. and a Special Jury.) JACKSON V. SIR R. MAYNE. (a) Libel-Police-sheets-Privileges. It was stated in the police-sheets issued and read to the metropolitan police that the plaintiff, an inspector of hackney carriages, had been dismissed for having made out accounts for amounts claimed to be due from him, Sc., founded on a misrepresentation of duties alleged to have been performed, &c. Held, that the publication was a libel and was not privileged. This was an action by the plaintiff to recover damages for a libel contained in a police-sheet notifying to the metropolitan police force the fact of the (a) Reported by F. O. CRUMP, Esq., Barrister-at-Law. Inspector Jackson, dismissed for having made out ac counts for payments claimed to be due to him, founded on misrepresentation of duties alleged to have been performed, expenses charged not incurred, and in many cases expenses being charged which, if incurred, were not authorised by any regulation. (Pay to the 24th ult.)-R.M. A correspondence ensued, and some of the claims at first disallowed were afterwards allowed by Sir Richard Mayne. Plaintiff in his evidence said that none of the charges were improper. Parry, Serjt. and Littler appeared for the plaintiff, The Attorney-General (Sir J. B. Karslake) and F. M. White, for the defendant. The Attorney-General submitted that the publication was a privileged communication, and upon this point the learned judge reserved leave to him to move. And he further submitted to the jury that for the dismissal no action would lie against Sir R. Mayne, as he undoubtedly had the power to dismiss the plaintiff; and as to the publication of the grounds of dismissal and reading them to the force, that was beneficial to the discipline of the police force; and he would also call evidence as to the CHAN.] LONDON, CHATHam, and Dover RAIL. Co. v. MAYOR, &c., OF CITY OF LONDON. manner in which the plaintiff had explained his charges for expenses. KEATING, J., in directing the jury, said that the only question raised by the pleadings was whether the document complained of had been published by Sir R. Mayne, but the Attorney-General had admitted the publication, and therefore that question was at an end. In his(Keating, J.'s) opinion the publication in question was a libel, but the jury were not bound to adopt that opinion, because the law was that the question of libel or no libel was for the jury alone. For the purposes of the day he directed them that the occasion of the publication did not make the communication privileged. If they should find for the plaintiff, the question of damages would require their serious consideration. They could give damages only for the injury sustained by the libel, and must not take into consideration the loss sustained by the plaintiff from being dismissed from the police force, because the Act of Parliament left all dismissals to the discre tion of the Commissioner of Police, and he was accountable in that matter only to the Home Secretary, and not to this court. The main matter upon which the parties differed in their evidence was whether the plaintiff had admitted that he had charged omnibus fare on occasions when he walked. Mr. May and Superintendent Walker stated that he made this admission, whilst the plaintiff positively swore that he never said so; but in truth this matter raised only an incidental, and not a main question in the cause. The jury retired to consider their verdict, but were unable to agree, and after several hours' deliberation were discharged without a verdict. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART July 27 and 28, 1868. (Before the LORDS Justices.) THE LONDON, CHATHAM, AND DOVER RAILWAY The Holborn Valley Improvement Act 1864, stats. 27 & |_ Accordingly, in the construction of the Holborn Valley Held, that the latter provision did not apply to a case [CHAN. where the corporation required to take a piece of land already purchased by the railway company, but did not require the same for the construction of the actual roadway or footways of the viaduct or new streets. The corporation were accordingly restrained from taking the piece of land till the matter had been determined by arbitration as provided by the Act. This was an appeal from a decision of Malins, V. C., refusing the application of the plaintiffs for an injunction to restrain the defendants from taking under their Parliamentary powers a certain piece of land, situate on the south side of Skinner-street in the City of London and belonging to the plaintiffs, until it should have been determined by an arbitrator, in accordance with the provisions of sect. 36 of The Holborn Valley Improvement Act 1864, (Stat. 37 & 28 Vict. c. 61, Local and Personal Acts) whether the said piece of land should be taken by the defendants or not. By the Act in question (stat. 27 & 28 Vict. c. 61) sect. 2, the mayor, aldermen and commons of the City of London were authorised to make and execute a certain viaduct or raised way, new streets and improvements, namely, (1) A viaduct or raised way for the purpose of a highway, street, or road commencing on Holborn-hill at or near Ely-court, and terminating in Skinner-street, in the City of London at or near the Old Bailey. (2 and 3) Certain new streets specified in sect. 2. (4) The widening of Shoe-lane and the carrying of that lane up to and so as to form a junction with the roadway of the viaduct. (5 and 6) A widening of part of Farringdon-road and an alteration of the levels of Farringdon-street and Farringdon-road. (7) The providing of space for the erection of houses and buildings adjoining to and near the viaduct or raised way, new streets, and improvements aforesaid. (8) The stopping up and permanent appropriation of certain streets. By sect. 5, all the powers, &c., contained in The London (City) Improvement Act 1847 (stat. 10 & 11 Vict. c. 280, Local and Personal Acts) except sect. 19 thereof, and in The Lands Clauses Consolidation Act 1845, except the part of that Act with respect to the purchase and taking of lands otherwise than dation Act Amendment Act 1860, were extended by agreement, and in The Lands Clauses Consoliand applied to the purposes of this Act. Sect. 15 limited the time for exercise of the company's powers of the Act, as to purchase of lands, to five years from the passing of the Act. Sect. 16 was as follows: If the viaduct or raised way and new lines of streets shall not be completed within five years from the passing of this Act, then on the expiration of such period the powers given by this Act to the mayor, aldermen, and commons for con structing the same shall cease to be exercised, except as to so much thereof as may then be completed. Sect. 17 gave power to the mayor, aldermen, and commons to purchase by agreement, but not by the viaduct and new streets for the purpose of compulsion, additional lands in the vicinity of erecting improved dwellings for the working classes. Sect. 19 gave power to the mayor, aldermen, and commons to make, under the intended viaduct, raised way, and new streets, or any of them respectively, an arched passage or covered way called a sub-way. Sect 33 (so far as material) was as follows: When the viaduct or raised way and new streets aforesaid are completed, all the ground laid open into the viaduct or raised way and new streets respectively, shall be deemed to form part thereof respectively, and may be used by the public accordingly; and thenceforth the viaduct or raised way and new streets and the sewers beneath the same respectively, shall be under the care management, control, and jurisdiction of, and shall be maintained, repaired, cleans, lighted, watched, paved, metalled, macadamised, and otherwise kept in proper order and condition by. the S CHAN.] LONDON, CHATHAM, AND DOVER RAIL. Co. v. MAYOR, &c., OF CITY OF LONDON. [CHAN. same commissioners, boards, vestries, district boards, or persons respectively as the other streets, in the respective wards, parishes, districts, or places in which the viaduct or raised way and new streets respectively will be situate. Sect. 34 provided for the protection of the works of the London, Chatham, and Dover Railway Company, at the points where the viaduct or raised way and one of the new streets authorised by the Act crossed the lines of railway of that company. Sect. 35 was as follows: In every case in which the mayor, aldermen, and commons, and the railway company, have concurrent powers for the purchase of land, those powers shall not be exercised by either party until after seven days' notice in writing of the intention to exercise such powers has been given to the other party, and if within those seven days the party to whom notice is given shall object to the exercise of such powers by the other; then as to the lands referred to in the notice, neither of those parties shall exercise any powers of purchase until an arbitrator, to be appointed by the Board of Trade, on the application of both or either of the parties, shall have decided whether any, and, if any, what portion of such lands shall be purchased by each or either of them; and it shall be the duty of the arbitrator to decide all such questions in such manner as he may deem best for enabling both parties to execute their respective undertakings as authorised: Sect. 36 was as follows: In any case in which the mayor, aldermen, and commons require to purchase or take any lands which have been already purchased or contracted to be purchased by the London, Chatham, and Dover Railway Company, and that company are unwilling to dispose of the same, or require the same for the purposes of their own undertaking, then it shall be referred to arbitration in manner hereinbefore provided with respect to the exercise of concurrent powers of purchase provided always that this provision shall not be construed to prevent the mayor, aldermen, and commons purchasing and taking all such lands of the Dover Company which may be required for the construction of the viaduct or raised way, and the line of the new streets by this Act authorised. The piece of land in question was not required by the defendants for the construction of the actual viaduct or raised way, but for the providing of space for the erection of houses abutting upon the line of the viaduct. The defendants, however, gave notice to the plaintiffs of their intention to take the piece of land. The plaintiffs, who had previously acquired the piece of land under their parliamentary powers, refused to dispose of it to the defendants, and insisted that they were entitled to have the question of its purchase referred to arbitration, and that the proviso at the end of sect. 36 did not apply to the case. The question in dispute, therefore, turned mainly upon whether the words at the end of sect. 36, "the construction of the viaduct or raised way, and the line of the new streets," were to be restricted to the actual roadway and footways of the viaduct and new streets authorised to be constructed, or whether those words comprised also the line of houses abutting upon the viaduct and new streets. The Vice-Chancellor adopted the latter construction, and the plaintiffs appealed. Before the opening of the appeal it was agreed that the motion for an injunction should be turned into a motion for decree, so that the only question in the suit might be finally disposed of. Cotton, Q. C., and Kekewich for the plaintiffs. Sir R. Palmer, Q. C., and A. E. Miller, for the defendants. The above quoted sections of the Act, as well as others not so material, were referred to, as also the London (City) Improvement Act 1847, ss. 46 and 47; and Galloway v. The Mayor and Commonalty of London, L. Rep. 1 E. & I. App. 34; 14 L. T. Rep. N. S. 865, was cited. Lord Justice PAGE WOOD said. - I do not think we need trouble you to reply Mr. Cotton. The case now before us is extremely different from Galloway's case in every material respect. Galloway's case was determined upon quite a different point to the one which arises here. The Act of Parliament relating to this case states that the corporation of London in carrying out these great improvements by making new streets, have authority to take all the lands authority not only to make the streets, that is the which are specified in the Act, and they have line of roadway described in the preamble, but to take what may be necessary to enable them to accomplish the making of those streets in pursuance of the powers conferred upon them by the Legis lature, and, if not laid out in making the streets, the lands may be otherwise laid out and let at a ground-rent, and the ground-rents may be sold. The Legislature has given conflicting powers to two public bodies for public purposes. It has given one Railway Company, and it has given another set of set of powers to the London, Chatham, and Dover powers to the corporation of London, by which either of those two bodies may purchase such lands as they want for their respective undertakings, both of them undertakings of an important character. The 36th section of the Act meets a case in which neither party has exercised its powers. One party may give a notice to take the land one day, and the next day or the next hour the occupier or owner of the property may be served with notice from the other party, and if both parties want the lands, in such a case as that, where no notice has been given up to that time, the matter is at once to go to an arbitrator, and each party is to give seven days' notice in writing of the intention to exercise their powers. If an objection is raised it is to go to the arbitrator, and he is to decide what portion of the land shall be taken by either party. We start therefore with this, that the arbitrator is assumed to be a person taking upon himself the responsibility of deciding that point, he being appointed by the Board of Trade. He is to decide fairly on behalf of the public which party ought to be authorised to take the whole or any part of the land in dispute, under the 35th section. Then comes a more difficult question, under the 36th section of the Act, as to what is to be done when the London, Chatham, and Dover Railway have the land. They must be assumed primâ faci? to have taken it for the purposes of their Act, and the Legislature has to deal with a case where for a public purpose the company have made themselves owners of the land. A public body authorised to do certain works for the public benefit will have a certain degree of limit put upon its powers. It is not to be expected that one body is to yield to the other without the question in dispute being taken into consideration that is to be referred to arbitration; and the reference is to be had in any case where the company are unwilling to dispose of the land or require the same for the purpose of their own undertaking." The wording is somewhat peculiar. Mr. Miller called our attention to the fact that they must not simply say we are unwilling, though we do not want it in the least, to dispose of it, but there must be some reason for their saying they are unwilling. It is put in the alternative of their requiring it for their undertaking, when they say they are unwilling. It is not left to the court to say whether they are justified in saying they are unwilling, but it is for the arbitrator to settle the whole matter, and he acquires his jurisdiction when they say they are unwilling, unless the corporation are exempted by the proviso. The arbitrator must be supposed to act fairly between the contending parties, and they are entitled to send it to the arbitrator unless the proviso saves the corporation from the necessity of submitting to the delay and inconvenience of so doing. [His Lordship read the proviso at the end of sect. 36 |