"belonging to the company," would have saved the right of the adjoining proprietors in whom the lands had already vested, and to whom they belonged, seeing that the Act, alleged to take away their rights, was a private Act, obtained furtively and behind the backs of the parties interested against it by a trading company for their own benefit; and as annihilating vested rights, it ought to be construed most strictly against the promoters. But when we look to the general enactments of the Acts of 1861 and 1868, and the schedules, and the language of these two clauses themselves, we find that they apply to nearly, if not entirely, the whole of the Acts, and the whole of the railways belonging to the Great Western Railway Company; and among which there are many where the period of ten years had not elapsed since the completion of the railways, and consequently where the superfluous lands still belonged to the company. And I cannot bring myself to entertain a doubt that it was to the superfluous lands acquired under these Acts, and to these only, and which still belonged to the company, and had never passed to the adjoining proprietors, that the clauses applied, enlarging the time for the sale of such lands for the term provided beyond whatever remained of the ten years, limited by the 127th section.

It has also been urged against the plaintiff, upon the authority of The City of Glasgow Union Railway Company v. The Caledonian Railway Company (1), that the land in question has been purchased by agreement, and not under the provisions of the Companies Act, and therefore cannot become "superfluous" land within the meaning of the 127th section. It is true that where land has been purchased by a railway company for extraordinary purposes, and under a voluntary agreement, it is not within that, section, which applies only to lands acquired under the provisions of the railway Act. But this land was not acquired for extraordinary purposes, or under a voluntary agreement, but strictly under the provisions of the Act. The answer given to this argument by Blackburn, J., is conclusive: he refers to section 16 of

the Act for making this railway (8 & 9 Vict. c. 40), which enables the company "to enter upon, take and use such of the said lands as shall be necessary for such purposes," the "said lands" being the land described in the plans deposited under the Act, and which comprises the whole of the lands in question. This land was purchased upon notices duly given, accepted, and acted upon, and under a conveyance made pursuant to those notices and to the above sections. They are not, therefore, lands purchased for extraordinary purposes, or under a voluntary agreement, and so not within the case of The City of Glasgow Union Railway Company v. The Caledonian Railway Company (1).

Upon these grounds, I am of opinion that the judgment of the Court of Queen's Bench ought to be affirmed, and in this opinion my brothers Keating and Brett

Amendment-Order of Justices-Certiorari-12 & 13 Vict. c. 45. 8. 7-Bastardy.

A bastard child having been born on the 27th of May, 1870, the mother applied on the 11th of August to M., a justice, who issued a summons against T., the alleged father. Several successive summonses were issued, and in March, 1871, T. was served with a summons to appear before the justices on the 11th of April. The mother and T. attended, but the mother withdrew the summons and on the same day applied to B., another justice, who issued a summons requiring T. to appear on the 25th of April. On that day an order was made, which recited the application to M., adjudged T. to be the father of the child, and ordered him

Gemette-hom 4829 TL337,

1872. Dec. 6.

THE SUNDERLAND LOCAL MARINE BOARD V. FRANKLAND,-OLIVER AND ANOTHER, Garnishees. Attachment of Debt-Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, 88. 60, 61-Garnishee Order-Judgment Creditor-Rule of Court-1 & 2 Vict. c. 110. s. 18.

After a rule has been discharged with costs, the person in whose favour the rule has been discharged cannot obtain a garnishee order under the Common Law Procedure Act, 1854, ss. 60, 61; the Act 1 & 2 Vict. c. 110. s. 18, giving to rules of the Courts of Common Law the effect of judgments for the purposes of the Act, but not actually making them judgments.

This was a rule to rescind an order at Judge's Chambers by which Master Unthank set aside an order nisi attaching debts under the Common Law Procedure Act, 1854, s. 61 (1).

(1) By 1 & 2 Vict. c. 110. s. 18- --"All decrees and orders of Courts of Equity, and all rules of Courts of Common Law, &c., whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the Superior Courts of Common Law, and the persons to whom any such moneys, or costs, charges, or expenses, shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the Superior Courts of Common Law with respect to matters depending in the same Courts shall and may be exercised by Courts of Equity with respect to matters therein depending; and all remedies hereby given to judgment creditors are in like manner given to persons to whom

It appeared from the affidavits that Frankland, the judgment debtor, had obtained in this Court a rule nisi for the Sunderland Marine Board to shew cause why a certiorari should not issue to bring up an order by the board cancelling Frankland's certificate as a master mariner, and that this rule after argument was discharged with costs. The costs were afterwards taxed to the board at 55l. 5s. 8d.; and they having ascertained that Messrs. Oliver and Botterill, who had previously acted as attorneys to the judgment debtor, were indebted to him for money received on his account, obtained the order nisi above stated, which was subsequently set aside by Master Unthank on the ground that the Board had not obtained a judgment in one of the Superior Courts within the meaning of the Common Law Procedure Act, 1854, s. 60.

Upon appeal to Lush, J., the learned Judge referred the application to the

Court.

any moneys or costs, charges or expenses are by such orders or rules respectively directed to be paid."

By the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 60-"It shall be lawful for any creditor who has obtained a judgment in any of the Superior Courts to apply to the Court or a judge for a rule or order, that the judgment debtor should be orally examined as to any and what debts are owing to him before a Master of the Court...."

By section 61 It shall be lawful for a Judge, upon the ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavits by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the judgment debtor, shall be attached to answer the judgment debt; and that by the same or any subsequent order it may be ordered that the garnishee shall appear before the Judge or a Master of the Court as such judge shall appoint, to shew cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt."

The judgment of the Court (2) was (on December 6) delivered by

ARCHIBALD, J.-This is a rule, calling upon Messrs. Oliver & Botterill (the gar nishees) to shew cause why an order of Master Unthank, of the 8th of November last, should not be rescinded.

It appeared that the debt from Frankland to the Sunderland Local Marine Board was due upon an allocatur on a rule of this Court (for the sum of 551. 5s. 8d.), for costs on a rule by Frankland against the Board, which had been discharged with costs. By the order impugned the Master declined to attach debts due from the garnishees to Frankland, on the ground that the case was not within section 61 of the Common Law Procedure Act, 1854; and the question is whether a rule of Court for the payment of money can be considered a judgment within the meaning and for the purposes of those sections of the Common Law Procedure Act, 1854, which relate to attachment of debts.

The question depends upon the effect to be attributed to the provisions of 1 & 2 Vict. c. 110. s. 18, in connexion with those of ss. 60 and 61 of the Common Law Procedure Act, 1854.

It was contended on shewing cause that a rule of one of the superior Courts of Common Law for payment of costs was not a judgment within the meaning of ss. 60 and. 61 of the Common Law Procedure Act, 1854, but had merely the effect of a judg ment, for the purpose of the remedies given by 1 & 2 Vict. c. 110; and in support of this contention reference was made to a decision of the Court of Common Pleas, in the case of The Financial Corporation (judgment creditors); Price (judgment debtor); The China Steam Ship and The Labuan Coal Company Limited (garnishees) (more shortly described as Re Price) (3), in which that Court declined to treat a decree of the Court of Chancery, ordering the payment of money, as a judgment within the meaning of the Common Law Procedure Act for the purpose of a garnishment order.

On the other hand it was argued in sup

(2) Blackburn, J.; Mellor, J.; and Archibald, J. (3) Law Rep. 4 C.P. 155.

port of the rule, that inasmuch as section 18 of 1 & 2 Vict. c. 110 provides that" all rules of Courts of Common Law, whereby any sums of money or any costs, charges, or expenses shall be payable to any person shall have the effect of judgments in the superior Courts of Common Law, and the persons to whom any such moneys, or costs, charges, and expenses shall be payable, shall be deemed judgment creditors within the meaning of that Act," such a rule must for the purposes of the attachment clauses of the Common Law Procedure Act, 1854, be regarded in the same light as a judgment in an action, and as answering to the description in s. 60 (embodied in the subsequent sections) of a judgment obtained by a creditor in one of the superior Courts.

In support of this contention the case of Hartley v. Shemwell (4), decided by this Court in Easter Term, 1861, was cited. In that case an order was made at Chambers by Bramwell, B., to attach debts due "from third parties towards payment of money directed to be paid by a Judge's order." An application for a rule to set aside that order was refused, but the point whether or not an order for payment of money is tantamount to a judgment for the purpose of a garnishment order (though involved in the decision) does not appear to have been put prominently forward, the judgment of the Court proceeding mainly on a different ground.

The facts of that case were that Hartley having obtained a judgment against Shemwell, a writ of fi. fa. was issued, under which the sheriff had levied on Shemwell's goods; a claim to the goods. was thereupon made by one Marples, between whom and Hartley an interpleader issue was directed, in which Marples was successful. Afterwards a ca. sa. was sued out by Hartley on his judgment against Shemwell, under which the latter was arrested. After the verdict on the interpleader issue, Marples obtained an order for payment by Hartley of the costs of the trial, and it was in respect of this order, and whilst Shemwell was still in custody under the ca. sa., that the order of Bramwell, B., was made, by (4) 1 B. & S. 1; s. c. 30 Law J. Rep. (N.s.) Q.B.

223.

and not to constitute them judgments of the Courts of Common Law.

This construction was, before the passing of the Common Law Procedure Act, 1854, put upon 1 & 2 Vict. c. 110, in the case of Newton v. Boodle (5). In that case an application to enter on the judgment roll (thus treating them as judgments) orders charging stock in execution, for the purpose of having them reviewed by a Court of Error, was refused, on the ground that they could not be considered in the light of judgments, so as to form part of the record. In giving judgment, Maule, J., states, "The statute of Victoria says that such orders shall have the effect of judgments at common law. That only means to give a remedy for disobedience of them, in addition to that which already existed by way of attachment. If the statute had been intended to introduce so great a change as has been contended for it, it would have done so by some express terms."

These observations appear strictly applicable to the present case; for, if such orders were not by the operation of 1 & 2 Vict. c. 110 put for all purposes on the same footing as judgments, then the language of ss. 60 and 61 of the Common Law Procedure Act, 1854, seems wholly insufficient to embrace them. The terms of sec. 60 (embodied by reference in sec. 61) are as follows: "It shall be lawful for any creditor who has obtained a judgment in any of the superior Courts to apply," &c.; and sec. 64 speaks of "the judgment debt and costs of suit," terms wholly inappropriate to describe a rule or order for payment of money. We are of opinion, therefore, that the language of these sections is only fitted to describe judgments recovered in an action, and that they do not comprise either rules of the superior Courts for the payment, or [as held in the case of Re Price (3)] similar orders or decrees of the Court of Chancery.

It might possibly, indeed, have been advantageous if the garnishment clauses of the Act of 1854 had been expressly extended to rules for payment of money; but this, we conceive, has not been done,

(5) 6 Com. B. Rep. 532; s. c. 18 Law J. Rep. (N.S.) C.P. 72.

and we can only deal with the statute as we find it.

We think, therefore, that the Master was right in refusing an order to attach the debts owing from the garnishees, and that for the reasons given this rule must be discharged. Rule discharged.

Attorneys-J. B. Hickin, agent for R. & T. W.

Brown, Sunderland, for plaintiffs; J. and J. K. Wright, for Oliver & Botterill, Sunderland, agent for garnishees.

(In the Second Division of the Court.) 1872. FOULGER (appellant) v. STEADApril 23. MAN (respondent).

Railway Station-Premises connected therewith-Wilful Trespass-3 & 4 Vict. c. 97. s. 16-Cab-stand.

A railway company allowed a portion of the premises connected with their railway station to be occupied as a cab-stand by cabs, the drivers of which paid a weekly sum for the privilege. S., a cab-driver, placed his cab upon the stand and refused to move, although he was requested to do so by the officer of the company. He did not pay the weekly sum charged by the company, and by occupying a place upon the stand he deprived another cab-driver, who had paid the said weekly sum, from occupying a place upon the stand.

By 3 & 4 Vict. c. 97. s. 17, "if any person shall wilfully trespass upon any railway, or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by any officer, &c., he shall forfeit," &c. :

Held, that if S. intentionally and purposely kept his cab upon the stand after being requested to move off, he did so wilfully, and was liable to the penalty imposed by the above section, although he honestly believed that he was entitled to keep it there without making any payment to the company.,

[For the report of the above case see 42 Law J. Rep. (N.S.) M.C. p. 3.]