XVII. VICTORIA. 1853. &c. Railway Company V. MIDLAND Railway Company. and carrying and conveying upon the said branch of the said railway and elsewhere, upon the said railway, by AMBERGATE means of carriages attached to the said engine and tender, passengers and goods, according to law, and under and by virtue of the powers and authorities in them by virtue of the statutes in that behalf vested." That the said engine and tender, and the said carriages, were properly constructed, as by The Railway Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20.), and the special Acts of Parliament in that behalf in that Act mentioned, and other the Acts of Parliament in that behalf directed. That plaintiffs, "at and during all the times of their so bringing, using and employing the said goods and carriages in and upon the said railway, for the purpose aforesaid, and at all times, were ready and willing to pay to defendants, or other the persons entitled to the same, all lawful tolls, charges, demands and claims whatsoever in that behalf demandable from or payable by them, or any other person or persons." Rejoinder, so far as the replication to the second plea relates to the said engine (a), "that the said engine was and is what in The Railways Clauses Consolidation Act, 1845, is called an engine: and that the plaintiffs had not, at or before the respective times of the making of the said distresses, obtained from the defendants, or applied to the defendants for, a certificate of their, the defendants', approval of the said engine, but brought the same, on each of the said occasions, on the said railway (a) The rejoinder, as to the tender, averred that it was fastened to the engine; and an answer was offered similar to the answer as to the engine. Upon the argument, it was admitted that the question as to the engine and tender was the same. 1853. AMBERGATE &c. Railway Company V. MIDLAND without having first obtained such certificate of approval as aforesaid, contrary to the form of the statute" &c. Demurrer. Joinder. Plea 3. As to the converting &c. the engine in the declaration first mentioned: That defendants are The Midland Railway Company mentioned &c., as in the replication to plea 2, averring that defendants, in pursuance of stat. 8 & 9 Vict. c. xlix., made a railway, being a portion of the railway by that Act authorized, and were possessed of the said portion; and were, before and at the time of the first occasion mentioned in the declaration, in the habit of lawfully using the said portion for the conveyance of passengers and goods along the same, by means of carriages and locomotive engines. That, just before the said first occasion mentioned in the declaration, plaintiffs brought upon the said portion of the said railway the said engine in the declaration first mentioned, without having first obtained from defendants a certificate of their, the defendants', approval of the said engine, contrary to the form of the statute &c.; and the same, until and at the said first occasion, continued on the said portion of the said railway, without any such certificate having been obtained, contrary to the same statute. "Wherefore the defendants did, in order to remove the said engine from the said railway at the said first occasion, take the said engine, and did, on the same occasion, remove the same from the said railway, a small and reasonable distance, to a fit and convenient place in that behalf, which is the conversion above complained of; and, in so doing, did deprive the plaintiffs of the possession of the said engine as alleged, doing no unnecessary damage to the plaintiffs on the occasion aforesaid." 1853. AMBERGATE Company V. Replication. That plaintiffs sue, not for the said removal, or the said converting, or depriving the plaintiffs of possession of, the said engine, as in the third plea &c. Railway alleged and justified; but for that defendants converted to their use, or wrongfully deprived plaintiffs of, the said engine in the declaration first mentioned, otherwise than in the third plea mentioned. Rejoinder. "As to the plaintiffs' new assignment on the third plea, the defendants repeat all the allegations in the third plea, except that which identifies the removal with the grievance complained of: and say that the engine was and is what is called an engine in The Railways Clauses Consolidation Act, 1845; and that the place to which they so removed the engine, as in the third plea mentioned, was land of and in the possession of the defendants contiguous to the said railway: and that the defendants continued possessed of the railway therein mentioned during all the times hereinafter mentioned. And that, while the engine was staying in the said place by virtue and in consequence of that removal, the plaintiffs demanded of the defendants the said engine for the purpose and in order that they the plaintiffs might, by the power of the steam of the said engine, move the said engine over and upon the said land of the defendants, towards, unto, to and upon the said railway of the defendants, and there again, on their said railway, place and use the said engine by the power of its own steam, without having first obtained or obtaining such certificate of approval as aforesaid for the said engine; contrary to the form of the statute" &c. "That, if the defendants had, in compliance with the said demand, allowed the plaintiffs to have possession of the said engine, the plaintiffs would forthwith have so, by the MIDLAND Railway Company. 1853. AMBERGATE &c. Railway Company V. MIDLAND Railway Company. power aforesaid, moved the said engine over and upon the said land of the defendants, towards, unto, to and upon their said railway, and there again, on their said railway, placed and, by the power aforesaid, used the said engine, without having first obtained or attaining such certificate of approval as aforesaid for the said engine, and without asking or applying to the defendants for such certificate, contrary to the form of the statute" &c. "Wherefore the defendants, on the said occasion when the said demand was made, and in answer to such demand, and to prevent the said engine from being by the plaintiffs, by the power aforesaid, moved to, and placed and, by the power aforesaid, used on, their said railway as aforesaid, without such certificate as aforesaid being first obtained, contrary to the said statute, and in defence of their possession of the said railway, refused to allow the plaintiffs to take possession of the said engine; and, by then not allowing the plaintiffs to reenter on the said land, for the purpose of taking possession of the same engine, and of then moving, placing and, by the power aforesaid, using the said engine as aforesaid, without having obtained or obtaining such certificate as aforesaid, contrary to the said statute, prevented the plaintiffs from having or taking possession of the said engine: which is the grievance above newly assigned" &c. Demurrer. Joinder. Willes, for the plaintiffs. On the demurrer to the rejoinder to the replication to the second plea, the question is, Whether the defendants were authorized to distrain the engine damage fesant, on the ground that it was on the railway without a certificate. The case turns on sects. 115, 116 of The Railways Clauses Consolidation Act, 1845. Sect. 115 undoubtedly enacts that no locomotive engine shall be brought on the railway unless first approved of by the company, who are to give a certificate of approval, upon being properly required: and then, by sect. 116, if any person, without a certificate, uses an engine on the railway, or, after notice given, does not remove it, he is to forfeit 207.; and the company may remove the engine. The necessity for the certificate is created by the statute. There is thus a specific provision introduced, for the infringement of which there are two specific remedies provided, neither of which includes a distress. The railway is a public highway. [Lord Campbell C. J. May not the owner of the soil of the highway justify the removal of what is improperly there? Wightman J. Suppose cattle stray on a public road.] Cattle may no doubt be improperly on a public highway, as appears from Dovaston v. Payne (a). Here the impropriety is merely a neglect, not of a common law duty, but of a statutable duty, for which the statute provides the remedy. [Wightman J. It provides a penalty for the infringement of the duty.] The provision does not seem to have in view the punishment of the party. [Coleridge J. There is a penalty which may be imposed with a view to the public safety. Erle J. The right of the plaintiffs to bring their engine on the railway at all was under a conditional legal power: the condition not being performed, they were trespassers; Six Carpenters' Case (b).] The common. law principle is inapplicable here: The Railways Clauses Consolidation Act, 1845, must be considered as the (a) 2 H. Bl. 527. See judgment of Patleson J. in Fawcett v. York and North Midland Railway Company, 16 Q. B. 610. 618. (b) 8 Rep. 146 a. 1853. AMBERGATE &c. Railway Company V. MIDLAND Railway Company. |