There being no merits in the respondent's case, the appeal will be allowed with costs. KENNEDY J. I am of the same opinion. It seems to me that s. 24, which makes the production of a written copy of the by-law, if authenticated by the corporate seal, sufficient evidence of the due making and existence of the by-law until the contrary is proved, and the by-law having been approved and confirmed, covers all the provisions of sub-ss. 2, 3, and 4 of s. 23; until the contrary is made out, the certificate is sufficient evidence of the due making of the by-law. I think that the expression "due making" refers to s. 23, sub-s. 2, which provides that, "Such a by-law shall not be made unless at least two-thirds of the whole number of the council are present.' Then, what is meant by "existence of the by-law"? The expression must mean existence of the by-law in an operative condition, which is provided for by sub-s. 3: "Such a by-law shall not come into force until the expiration of forty days after a copy thereof has been fixed on the town hall "; and there are other provisions in sub-s. 4 as to the by-law not coming into force until certain things have been done. It seems to me that "making and existence" means the making of the by-law and its existence in an operative condition as an effective by-law; if so, there was here sufficient evidence. 1905 ROBINSON v. GREGORY. RIDLEY J. I agree. Judgment for the appellant. Solicitors for appellant: Robbins, Billing & Co., for Hilton, Town Clerk, Swindon. W. J. B. C. A. 1905 Feb. 13. [IN THE COURT OF APPEAL.] HAMPSTEAD CORPORATION v. MIDLAND RAILWAY COMPANY. Metropolis Management Acts-New Street-Paving Expenses-Land abutting By the provisions of a special Act, inserted for the protection of a landowner, a railway company were bound to acquire all his land adjoining a certain street, and to leave a strip of land along the whole length of the street, and to plant the strip with trees and shrubs and fence it off from the street, and to maintain it in that condition. The company acquired the land, and planted and fenced a strip along and contiguous to the whole length of the street : Held, that the railway company were owners of the strip of land within s. 250 of the Metropolis Management Act, 1855, and therefore were liable to contribute to the expense of paving the street as a new street. Decision of Bigham J., [1904] 2 K. B. 802, affirmed. APPEAL of the defendant company from a decision of Bigham J. (1) The facts appear sufficiently from the head-note and from the report of the case in the Court below. W. Wills (Montague Lush, K.C., with him), for the defendant company. The defendant company are not owners of the strip of land within s. 250 of the Metropolis Management Act, 1855, and are, therefore, not liable to contribute to the expense of paving the street in question. The decision of the House of Lords in Great Eastern Ry. Co. v. Hackney Board of Works (2) lays down the principle that where either by statute or by common law land has been placed "extra commercium," to use the language of Lord Watson, and is, so to speak, sterilised, so that the owner is deprived of the power of raising a rent from it, the owner is not the owner for the purposes of the Metropolis Management Acts. (1) [1904] 2 K. B. 802. (2) (1883) 8 App. Cas. 687. C. A. 1905 CORPORATION [ROMER L.J. That was a case of the parapets of a bridge over a cutting, and the House of Lords came to the conclusion that practically there was no land at all abutting on the street. HAMPSTEAD STIRLING L.J. The provisions in the special Act are inserted for the protection of a private owner, and the sterility MIDLAND spoken of is not expressed in such a way that it cannot be got rid of.] The land is sterilised for the time being, and practically it is likely to remain so for all time. The principle above stated has been applied to a church, to a common, and to a public highway: Angell v. Paddington Vestry (1); Plumstead Board of Works v. British Land Co. (2) In the two former cases the sterility could not be removed except by statute, but in the case of a public highway the land could be brought intra commercium without the interference of Parliament. Therefore the test is not whether an Act of Parliament is required to put an end to the disability. The Court will have regard to the actual condition of the land, and will not insist that the restriction on the user should be absolutely perpetual if there is no reasonable probability of its removal. [STIRLING L.J. referred to Bowditch v. Wakefield Local Board (3), where it was held that land conveyed to trustees for the purposes of a school under the powers of an Act of Parliament (4 & 5 Vict. c. 38, s. 2) which provided for the reverter of the land upon its ceasing to be used for those purposes, was not exempt from liability to contribute. Macmorran, K.C., for the plaintiffs. That was followed by the Court of Appeal in Hornsey District Council v. Smith. (4)] Those cases are distinguishable from the present case, because this is not the case of an owner voluntarily dedicating land for the purposes of a school or a chapel-Wright v. Ingle (5)—or for any other purpose, and reserving to himself the right to put an end to the disability, but is a case of a restriction imposed upon the owner by Act of Parliament. Macmorran, K.C., and Courthope-Munroe, for the plaintiffs. (1) (1868) L. R. 3 Q. B. 714. (2) (1875) L. R. 10 Q. B. 203. (3) (1871) L. R. 6 Q. B. 567. (5) (1885) 16 Q. B. D. 379. v. RAILWAY. C. A. 1905 V. RAILWAY. VAUGHAN WILLIAMS L.J. I think that the judgment of Bigham J. is perfectly right. It seems to me that if the HAMPSTEAD arguments addressed to us by the appellants' counsel were CORPORATION Well founded the case of Wright v. Ingle (1) ought to have MIDLAND been decided differently, for in that case, as in this, unless and until there was a release, the land was extra commercium because it could not be dealt with for any other than the purpose in view. The whole difference between that case and the present one is that the present agreement is embodied in an Act of Parliament and the agreement in Wright v. Ingle (1) was not. I think that there is no substance in that difference, because one has only to look at the agreement in this case to see that it was an agreement arrived at by the parties and afterwards embodied in an Act of Parliament. In my opinion, this appeal must be dismissed with costs. ROMER and STIRLING L.JJ. concurred. Appeal dismissed. Solicitors: Beale & Co.; Arthur P. Johnson. (1) 16 Q. B. D. 379. H. B. H. [CROWN CASE RESERVED.] THE KING v. LAWSON. Criminal Law-Officers of Public Companies-Publishing Fraudulent Statements-Manager de facto-Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 84. Sect. 84 of the Larceny Act, 1861, which makes it a misdemeanour for "any director, manager, or public officer of any body corporate or public company" to publish false statements with intent to deceive or defraud, applies to a person who, without having been appointed an officer of the company, has in fact acted throughout as the manager of the affairs of the company. CASE stated for the opinion of the Court for the Consideration of Crown Cases Reserved by A. T. Lawrence J. "1. Henry John Lawson was tried before me on the 22nd November, 1904, and following days at the Central Criminal Court on an indictment charging him under s. 84 of the Larceny Act, 1861, with unlawfully making, circulating, and publishing written statements false to his knowledge, with intent to induce persons to become shareholders in the Electric Tramway Construction and Maintenance Company, Limited. "2. The said company was a limited company registered under the Companies Acts, 1862-1900. "3. The articles of association (which were put in evidence) contained provisions empowering the board to appoint a manager. "4. No minute of the board appointing a manager was in existence, and there was no evidence of any actual appointment of the prisoner as manager by the directors of the company. "5. The nominal capital of the company was 250,000l., divided into 250,000 shares of 17. each. "The issued capital consisted of 55,000 shares issued as fully paid. "6. The whole of these shares with the exception of about 5000 were held by the prisoner or his nominees. "7. The prisoner had given the then existing directors their VOL. I. 1905. 2 P 2 1905 Jan. 21, 31. |