Sidebilder
PDF
ePub

1819.

The KING against The SEVERN

and WYE

yet it is a common highway for that purpose.] An indictment is not a specific remedy in this case: it will not effect the purpose required, so speedily and effectually as a mandamus; for if the Defendants are convicted upon an indictment, the Court can only impose a fine Railway Comp. upon them, being a corporation, and that fine may be levied by distress upon their property; and cases might occur where the tangible property of a corporation might be so small, that they might submit to the payment of any fine, and still not do the thing required. At all events, the remedy is not so speedy and effectual as that by mandanius. In The King v. The Commissioners of Dean Inclosure (a), it was said in argument that an indictment against the commissioners for not obeying an order of sessions directing them to set out a road as a public road, would not be a specific remedy, i. e., such a remedy as the case demanded: for an indictment was only a proceeding in pœnam for the past, and not a remedy for the future; and Lord Ellenborough C. J., in giving the judgment of the Court, said, "Upon the objection of there being another remedy in this case, I cannot help thinking that what has been observed by the counsel in support of the rule is extremely material, and that an indictment would not afford that convenient mode of remedy which might be obtained by mandamus." That case is, therefore, an authority to shew that it is no objection to the granting of a mandamus to do a particular act that an indictment will also lie for the omission to do that act, and that they may be concurrent remedies. In The King v. Bedford Level (b), Lawrence J. seemed to consider that a quo warranto information

(a) 2 M. & S. 80.

(b) 6 East, 567.

Uu8

and

1819.

The King against The SEVERN and WYE

and a mandamus may be concurrent remedies; and he said, that there might be occasions where a mandamus would be the more proper remedy. A mandamus here is the more proper remedy, because it will more speedily Railway Comp. and effectually compel the doing of the thing required than an indictment.

ABBOTT C. J. I have entertained considerable doubts during the discussion, whether the Court ought to grant a mandamus to compel the doing of an act, the omission to do which may be prosecuted by indictment. I am now, however, satisfied, by the authorities cited in the course of the argument, that there is no reasonable ground for that doubt. If an indictment had been a remedy equally convenient, beneficial, and effectual as a mandamus, I should have been of opinion, that we ought not to grant the mandamus; but I think it is perfectly clear, that an indictment is not such a remedy, for a corporation cannot be compelled by indictment to reinstate the road. The Court may, indeed, in case of conviction, impose a fine, and that fine may be levied by distress: but the corporation may submit to the payment of the fine, and refuse to reinstate the road; and at all events a considerable delay may take place. The remedy, therefore, is not so effectual as that by mandamus. I am, therefore, of opinion, that the circumstance of the corporation being liable to an indictment, is no objection to the granting of a mandamus; and, upon the facts disclosed in the affidavits, I think this rule ought to be made absolute.

BAYLEY J. I am of the same opinion. By mandamus, the Court may compel the road to be reinstated.

In the case of an indictment, the Court can only impose a fine, which fine can be levied only on the effects of the corporation, if any such effects can be found; and if it so happen that the corporation had no tangible property upon which the distress could operate, the remedy would be altogether ineffectual.

HOLROYD J. concurred.

BEST J. Both upon principle and authority I am of opinion, that the Court ought to grant this mandamus. Numerous applications are made to parliament by speculative individuals, to form these navigable canals and railways: great public benefits are held out as an inducement to the legislature to sanction these undertakings; and when their sanction is obtained, is it to be permitted to these persons to say, that they will do only that which is beneficial to themselves, and disregard entirely the interests of the public? It has been argued in this case, that there is a specific remedy by indictment, and that, therefore, we ought not to grant a mandamus. I think, however, that that objection ought not to prevail in this case, for an indictment does not afford a remedy equally effectual to compel the reinstating of the road, which is the purpose to be answered by the granting of this writ. The Court can only impose a fine, in case a corporation be convicted upon an indictment, and that fine may be levied by distress from time to time; and even then the corporation may elect not to repair the road; and at all events considerable delay would ensue. By mandamus, on the other hand, the defendants will be compelled to do the thing required, unless, by the return to the manUu 4 damus,

1819.

The KING against The SEVRRN and WYE Railway Comp.

1819.

The KING against The SEVERN and WYE Railway Comp.

damus, they shew a sufficient reason for not doing it; and if they shew no such reason, then a peremptory mandamus issues; and, in case of non-compliance, an attachment may issue against those who disobey the writ. There being, therefore, no other remedy equally effectual to answer the purposes required, I think that we ought to grant a mandamus; and, consequently, that this rule ought to be made absolute.

ABBOTT C. J.. The writ should be to reinstate and lay down again, but not to maintain the tram-road. Rule absolute.

Saturday,
June 12th.

Demise by lease of certain lands, together with the mines under

them, with liberty to dig for ore in

other mines under the

surface of other lands not de

CROCKER and Others against FOTHERGILL.

DECLARATION in debt, on 11 G. 2. c. 19. s. 12.,

stated that the defendant and two other persons, after the 24th day of June, 1738, and at the time of the delivering of the declaration in ejectment to the defendant, and of the committing of the grievance by the defendant, were tenants to plaintiffs of certain lands,

mised; the tenant fraudulently concealed a declaration in ejectment delivered to him, and suffered judgment to go by default. The declaration in ejectment did not mention mines at all, but the sheriff, in executing the writ of possession, by the concurrence of the tenant, delivered possession of the premises demised to the tenant, and also of those mines in which he had liberty to dig: Held that, although the latter could not be recovered under the declaration in ejectment, still that the tenant by his own act had estopped himself from taking that objection, and that in an action for the value of three years' improved rent, under the statute of 11 G. 2. c.19., the landlord night recover the treble rent, in respect not only of the demised premises, but of the mines in which the tenant had only a liberty to dig.

The improved or rack rent mentioned in the 11 G. 2. c. 19. s. 12. is not the rent reserved, but such a rent as the landlord and tenant might fairly agree on at the time of delivering the declaration in ejectment, in case the premises were then to be let.

tene

tenements, and premises of the plaintiffs, situate in the parish of Bedwelty, in the county of Monmouth; and that heretofore, to wit, on, &c. and whilst the defendant and the said other persons were so tenants to the plaintiffs of the lands, &c. at, &c. a declaration in ejectment for the said lands, &c. was delivered to the defendant: nevertheless defendant, not regarding his duty, nor the statute, did not forthwith give notice of the said declaration in ejectment to the plaintiffs, nor to any bailiff or receiver of them, the plaintiffs, but neglected so to do, contrary to the statute; by reason whereof defendant became liable to pay to plaintiffs, as such landlords, the sum of 9000l., being the value of three years' improved rent of the premises so holden in the possession of such tenants, and thereby an action accrued to the plaintiffs to demand and have of and from the defendant the sum of 9000l. Plea, nil debet. At the trial before Garrow B., at the last summer assizes for the county of Monmouth, it appeared in evidence that the defendant and the other persons mentioned in the declaration, were tenants to the plaintiffs of the premises in question, as assignees of the lessee of a lease, bearing date the 16th of February, 1778, for forty years, by which were demised all that messuage, tenement, and lands called Lower Sirhowey and Tanen Sirhowey; also all that messuage, tenement, and lands called Penpont Sirhowey, situate in the parish of Bedwelty, in the county of Monmouth; together with all houses, out-houses, &c. and all other the appurtenants to the said several tenements and lands belonging, with full and free liberty to the lessee to erect furnaces, forges, &c. upon any part of the premises, for the making and manufacturing of iron: with full and free liberty to the lessee to have, dig, and take from the said

1819.

CROCKER

against FOTHERGILL.

lands,

« ForrigeFortsett »