The Direct London and Portsmouth Railway Company, before it was reversed, and that the reversal of the latter case displaced the authority of the Master of the Rolls in the former, but in the former, as it appears to me, there were two questions: first, whether there was any concluded agreement, any binding agreement, any thing amounting to a positive contract; and next, whether there was not great delay. The appellants have relied upon those two cases as reversed by the Lords Justices. I do not say that either. of those decisions was not a proper decision under the particular circumstances of each case, but I say, if they are to be considered as authorities for refusing a specific performance in a case like the present, that I should totally disagree with them. Such would be a new view of the doctrine of this Court, and it is a view which could not be supported consistently with the many authorities to which I have adverted.

One other argument remains to be noticed, that of the alleged illegality in the company applying its funds to purposes not authorized by their Act of Parliament; and the cases of M'Gregor v. The Dover and Deal Railway Company, (a) East Anglian Railway v. Eastern Counties Railway, (b) and Bagshaw v. The Eastern Union Railway Company, (c) were quoted in support of that argument. Those were all cases in which the companies were beyond all doubt exceeding their powers, and the parties contracting with them must be presumed to have had notice of the illegality. Those cases, therefore, have no bearing on the present. In my opinion nothing can be more indecent than for a great *760 company like this to allege, by way of defence, that a sol

*

emn contract which they have entered into is void on the ground of its not being within their powers, not from any mistake, misapprehension, or subsequent accident, but because they thought fit to enter into it, and meant to have the benefit of it, if it turned out for their benefit, and to take advantage of the illegality in case the contract should prove onerous, and they should desire to get rid of it.1

(a) Exch. Ch. June, 1852 (19 Law Times, 316). (b) 21 Law Journ. C. P. 23.

(c) 2 Mac. & G. 389.

1 In Brown v. Winnisimmet Co., 11 Allen, 331, BIGELOW C. J., said: "The later English authorities seem to sanction the doctrine that such a ground of defence [that stated in the text], although it may be unbecoming and ungracious,' or, in the stronger language of Lord ST. LEONARDS, indecent,' is

I have postponed my decision on this case until I had examined all the authorities cited. I have taken the opportunity of looking into every authority upon the subject, and I can find nothing to shake the opinion I entertained when the argument was closed that this is a very clear case for specific performance. I am very glad that the authorities are consistent with the justice and equity of the case; and therefore I dismiss this appeal with costs.

nevertheless legal and valid, if it be made to appear, either by the express provisions of an act of incorporation, or by necessary and reasonable implication therefrom, that a contract which is sought to be enforced in an action at law against a corporation is beyond the scope of the powers granted by its charter; or, in other words, that the legislature did not intend that the body created by them should enter into contracts of a character like that which a plaintiff makes the foundation of a claim against it; " and he cites South Yorkshire Railway Co. v. Great Northern Railway Co., 9 Exch. 55, 84, 85; Bateman v. Ashton-underLyne, 3 H. & N. 323; Norwich v. Norfolk Railway, 4 El. & Bl. 397, and cases cited. To which may be added as illustrative of the above doctrine and showing it to be well settled, in cases where it may properly be applied, Taylor v. The Chichester and Midhurst Railway Co., L. R. 2 Exch. 356; L. R. 4 H. L. 628; 4 H. & C. 409; The East Anglian Railway Co. v. The Eastern Counties Railway Co., 11 C. B. 775; 21 L. J., N. S., C. P. 23; Macgregor v. Dover and Deal Railway Co., 18 Q. B. 618; 22 L. J. Q. B. 69; Bagshaw v. Eastern Union Railway Co., 2 M'N. & G. 389; 19 L. J. Ch. 410; Earl of Shrewsbury v. North Staffordshire Railway Co., L. R. 1 Eq. 593; Chambers v. Manchester and Milford Railway Co., 5 B. & S. 588; In re National Permanent Building Society, L. R. 5 Ch. Ap. 309; Gregory v. Patchett, 33 Beav. 595. A similar doctrine has been recognized and applied by Courts in the United States. Pennsylvania, Delaware, and Maryland Steam Navigation Co. v. Dandridge, 8 Gill & J. 248; Hood v. New York and New Haven R.R., 22 Conn. 502; Pearce v. Madison & Ind. R.R., 21 How. (U. S.) 441; Commonwealth v. Smith, 10 Allen, 448; East Boston Freight R.R. Co. v. Hubbard, ib. 459 note; Whittenton Mills v. Upton, 10 Gray, 582; Bangor Boom Corp. v. Whiting, 29 Maine, 123; Abbott v. Baltimore and R. Steam Packet Co., 1 Md. Ch. 542; Strauss v. Eagle Ins. Co., 5 Ohio N. S. 59; Bank of Genesee v. Patchin Bank, 3 Kern. 315; Downing v. Mount Wash. Road Co., 40 N. H. 230, 235; East Boston Freight R.R. Co. v. Eastern R.R. Co., 13 Allen, 422; The Morris and Essex R.R. Co. v. Sussex R.R. Co., 5 C. E. Green (N. J.), 542, 562–564; SELDEN J., in Bissell v. The Mich. Southern and Northern Ind. R.R. Co., 22 N. Y. 258; Orr v. Lacey, 2 Doug. (Mich.) 230. See also Shrewsbury and Birmingham Railway Co. v. North-Western Railway Co., 6 H. L. Cas. 113, 137; S. C., 2 M'N. & G. 324; 3 M'N. & G. 7; 4 De G., M. & G. 115; 16 Beav. 441; Gage v. Newmarket Railway Co., 18 Q. B. 457; Bagshaw v. The Eastern Union Railway Co., 2 M'N. & G. 389, note; The Caledonian Railway Co. v. The Magistrates of Helensburgh, 2 Macq. 391; Sugden V. & P. (14th Eng. ed.) 76.

November 20.

The appeal from the order on the exceptions now came on to be heard.

Mr. Bethell, Mr. Russell, Mr. Malins, and Mr. Grove, in support of the appeal. Admitting the validity of the contract, we submit that the plaintiff cannot perform it, and there being some portion of the land not within the limits of deviation as to which the plaintiff is tenant for life, and with respect to which he could only have contracted after the enabling clauses of the Lands Clauses Consolidation Act (8 Vict. c. 18) had been brought into operation by the special Act, the decree directing the reference as to title was wrong in incorporating into that reference any allusion

*to the Lands Clauses Consolidation Act. No valuation *761 has been made for the protection of the remainder-man. They referred to the 6th, 12th, 14th, and 69th sections of the Lands Clauses Consolidation Act.

The Solicitor-General, Mr. Wigram, and Mr. Follett, contra, submitted, as in their former argument, that the portion of the land in respect of which the plaintiff was tenant for life might be taken for extraordinary purposes under the 45th section of the Railway Clauses Consolidation Act (8 Vict. c. 20), and that it did not concern the vendor to show that it was to be used for such purposes.

Mr. Bethell, in reply.

THE LORD CHANCELLOR.-There is nothing in the contract, or in the negotiation as appears in the correspondence, to show that the defendants had any doubts of their capacity to purchase, and there is no evidence produced to show that the whole of the land might not be legally taken for extraordinary purposes. As to the omission to make the valuation between the tenant for life and the remainder-man, that was entirely the duty of the company, who cannot be permitted to set up their own neglect as an argument for not fulfilling the contract. There is nothing to prevent that apportionment now, and I think therefore that this appeal must also be dismissed with costs.

[ 589 ]

* 762

*HICKLING v. BOYER.

1852. November 2. Before the Lord Chancellor Lord ST. LEONARDS.

THE decree, as drawn up in this case, after the judgment pronounced upon it by the Lord Chancellor Lord TRURO, a report of which will be found in the third volume of Messrs. Macnaghten & Gordon's Reports, p. 635, provided that it should be binding upon Mary Griffin, unless she should within one month after the service thereof on her, show unto the Court good cause to the contrary. The decree was not served on M. Griffin until the 30th June, 1851. Within one month from that time application was made that the cause might be reheard as against her, and the Lord Chancellor (Lord ST. LEONARDS) directed it to be set down at the foot of the appeals before him.

Mr. Hardy now insisted, on behalf of M. Griffin, that as she was only the personal representative of R. Ashby, the decree ought not to have affected her personally, but submitted to the ordinary accounts being taken against her.

Mr. Shapter, for the residuary legatees, waived such accounts. Mr. Teed and Mr. Craig, for the executors.

THE LORD CHANCELLOR granted the application, observing that Mary Griffin ought not to have been made personally liable to the obligation imposed on her; but adding that as the mistake was entirely the act of the Court, there ought to be no costs of the application to rectify the decree.

The decree was varied by striking out every thing relating to M. Griffin, and by inserting a statement that the plaintiffs and defendants waived the accounts as against her.

[ 590 ]

* 763

* RODICK v. GANDELL.

1851. May 6. June 4, 5, 6. 1852. July 21. Before the Lord Chancellor Lord TRURO.

An agreement between a debtor and a creditor that the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order directing such person to pay such funds to the creditor, will operate as an equitable assignment of such debt or funds.'

A railway company was indebted to A., their engineer, who was greatly indebted to his banker: the latter having pressed for payment or security, A., by letter to the solicitors of the company, authorized them to receive the money due to him from the railway company and requested them to pay it to the banker: the solicitors, by letter, promised the banker to pay him such money on receiving it. Held, that this did not amount to an equitable assignment of the debt.

THIS was an appeal from the decision of the Master of the Rolls dismissing a bill filed on behalf of the bankers of the defendants Messrs. Gandell & Brunton. The question in the suit was, whether a letter written by these last-named gentlemen to Messrs. Pinniger & Westmacott (also defendants in the suit), the solicitors of certain railway companies from whom money was alleged to be due to Messrs. Gandell & Brunton, authorizing them

1 See Diplock v. Hammond, 2 Sm. & Giff. 141; 5 De G., M. & G. 320; Ex parte Imbert, 1 De G. & J. 152; M'Gowan v. Smith, 26 L. J., N. S. Ch. 9; Myers v. The United Guarantee and Life Assurance Co., 7 De G., M. & G. 112; 3 Lead. Cas. in Eq. (3d Am. ed.) 308 [654] et seq. notes to Ryall v. Rowles. An order, draft, or bill, drawn for the whole of a particular fund, is an equitable assignment of that fund to the payee, and binds it after notice to the drawee. Mandeville v. Welch, 5 Wheat. 285; Robbins v. Bacon, 3 Greenl. 346; Corser v. Craig, 1 Wash. C. C. 424; Adams v. Robinson, 1 Pick. 461; Legro v. Staples, 16 Maine, 252; Johnson v. Thayer, 17 Maine, 401; Gibson v. Finley, 4 Md. Ch. Dec. 75; Parkhurst v. Dickerson, 21 Pick. 307; Blin v. Pierce, 20 Vt. 25; SHAW C. J., in Palmer v. Merrill, 6 Cush. 287; Walker v. Mauro, 18 Missou. 564; Clark v. Mauran, 3 Paige, 373; M'Lellan v. Walker, 26 Maine, 114. But an order or draft for a part only of a debt does not, against the consent of the drawee, amount to an assignment; for the debtor is not to be subjected to distinct demands on the part of several persons, where his contract was one and entire. Gibson v. Cooke, 20 Pick. 15; Mandeville v. Welch, 5 Wheat. 286; SHAW C. J., in Palmer v. Merrill, 6 Cush. 287; Bullard v. Randall, 1 Gray, 605; Chitty Contr. (10th Am. ed.) 137; The Hull of a New Ship, Davies, 199; Bourne v. Cabot, 3 Met. 305; Wheeler v. Wheeler, 9 Cowen, 34; Buck v. Swarey, 35 Maine, 41; Hopkins v. Beebee, 2 Casey, 85, 88.