station house was built on land, and remained for the ten years and more, and then the station was moved, and the house pulled down, and the land on it became superfluous in fact. It is clear that would not be within the statute. Neither is this

case, for the purpose for which the land was taken and used is and was permanent. The special argument it furnishes is this. The lands must become superfluous within ten years. By the plaintiff's argument this became "superfluous" only when it ceased to exist as something on the land by becoming part of the land. When was that? If not within the ten years, it is not within the statute, and where is the evidence to shew it was within the ten years?

BYLES, J., concurred with this judg

ment.

KELLY, C.B.-The plaintiff claims in this action a quantity of land, about four acres, part of a field formerly of ten acres, as "superfluous land," or land not required for the purpose of the defendants' railway; and the action is resisted by the defendants on the ground that the land was and is required for the purposes of the Act of Parliament, or in other words for the purpose of the railway. The 127th section of the Lands Clauses Consolidation Act provides that all such superfluous lands, if not sold within ten years of the completion of the works, shall vest in, and belong to, the proprietors of the adjoining lands. In this case, the period of ten years has elapsed and the land has vested in the plaintiff, if it was superfluous land within the statute. Of the ten acres, about five acres have been used for the purposes of the railway, a portion of the railway and of the station having been constructed upon it. Of the remainder, a considerable portion was originally used as a place of deposit for a quantity of spoil resulting from an excavation made in order to form a cutting. But this operation and the deposit altogether ceased before, or almost immediately after, the completion of the railway, in June, 1850. And from that time, and after the expiration of the ten years, in 1860, the spoil deposited consisting principally of chalk, and which had become incorporated with the earth, remained unapplied to the purposes of the

railway, or to any purpose whatever connected with the undertaking; and the land has been let by persons in the employ of the railway company, and with their permission, as garden-ground, or as arable or pasture land, at rents of from twenty to thirty shillings an acre. Indeed, during the last few years, the land has been thus let by the defendants themselves. Under these circumstances it has been contended on the part of the defendants, that the land having been once applied to the purposes of the Act, by the deposit of the spoil upon it, cannot afterwards become "superfluous "land or land not required for such purposes. And further, that having been used as a place of permanent deposit for the spoil, after the temporary act of deposit had ceased, this use of the land is a permanent ap plication of it to the purposes of the Act.

In addition to the grounds upon which the judges of the Court below have held that this land became "superfluous' land, and no longer required for the purposes of the Act, whenever the deposit had ceased, I may observe that the question turns entirely upon the distinction between lands which, though required for purposes of the Act, are so required for temporary purposes only, and such as are required and used for a permanent purpose. No doubt the land was so required as long as the temporary act of depositing continued; and if the company had thought fit to remove and dispose of the spoil, it would still have been so required for some time longer, and until it should have been all removed. But when removed, or having been thrown upon the land without any intention to remove it, it has become part of the soil, the land ceased to be applied to any of the purposes of the railway, and, I think, became "superfluous" land within the statute. It cannot be said that it was one of the purposes of the Act to preserve upon the land a quantity of spoil perfectly useless, and which never had been and was never intended to be applied to any purpose connected in the remotest degree with the business of the railway. When, therefore, the deposit ceased, and there existed no intention of removing the spoil,

I agree with the Court below that the land being no longer required for the purposes of the Act became "superfluous land" within the meaning of the 127th section. If, indeed, it were one of the purposes of the Act to keep a quantity of spoil upon the land for ever, without any use being made either of the spoil or of the land, the case would be otherwise. But the proposition seems to me selfcontradictory, when correctly stated, that a piece of land of some few acres in extent is required for the purposes of an Act of Parliament because it contains a quantity of spoil upon its surface; the railway company having no occasion for the purposes of the railway to take or use the smallest portion of the spoil or a single foot of the land of which it has become a part.

The case has been put of a house built upon land for the residence of a stationmaster. But this no doubt is a permanent and legitimate purpose, and land so used is as much applied to the purposes of the Act as the land upon which the station itself is built, or the railway itself constructed. And when it is asked, Suppose the station-master to be otherwise provided for, or the station itself to be disused, so that the land would be no longer required for the purposes of the Act, would the case come within the 127th section? The answer is that it would not, for although it is undoubtedly contrary to the policy of these Acts of Parliament, that land which becomes useless for the purposes of the railway, at whatever time such may be its condition, that it should nevertheless be retained and applied to other purposes unconnected with the railway and for the profit of the company; yet such a case may, and often does, occur long after the expiration of ten years from the completion of a railway, and neither the 127th section nor any other provision of the general Acts of Parliament has provided for such a case. But where land is purchased generally for the purposes of the Act, and though so used and applied, is used and applied for a temporary purpose only, which ceases before or a short time after the completion of the railway, it seems to me liable to be dealt with in the same way as

if, although purchased for the purposes of the Act, it had never been so used or applied at all. Upon the literal construction of the Act then, it would seem that when the deposit of the spoil had ceased, and the land had, therefore, ceased to be required for the purposes of the Act, the case at once came strictly within the express terms of the 127th section.

But we must consider whether it is not within the real and actual intention of the Legislature. The object was, that railway companies should be confined in the property they are permitted to purchase, as well as in their dealings and traffic, to the means and the powers and authorities necessary to the carrying on of the business of their railways. They may purchase and hold lands for the purpose of constructing upon them railways, and stations, and bridges, and other necessary buildings and works. But they may not either purchase or hold land to let it out for profit, as arable or pasture or garden grounds, whether to their own officers, or servants, or others. If, therefore, in this case it were permitted as soon as the construction of the railway, and the excavation and deposit of the spoil in question were complete, to hold the ten acres of land, and let it as arable, or pasture, or garden ground, at substantial rents to be received for their own use and profit, the provisions of the 127th section of the Act, and the policy of all the railway Acts that have ever been passed in this country would be at once defeated.

But it is also contended that by the special Acts of 1861 and 1868, the time for the sale of "superfluous" lands by the company has been enlarged, and the title of the plaintiff, if he had acquired a title, was divested, and the land restored to the defendants. If the enlarging clauses of these Acts applied only to the railway in question, the argument might be urged that it must govern the case of all superfluous lands acquired under the Act for that railway, inasmuch as the ten years allowed by the 127th section having already expired, if the above clauses did not apply to these lands, they would be nugatory and useless, and would have no application at all. Though even in this case I should have thought that the words,

"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 66 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

This

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. 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. s. 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

to pay 2s. 6d. per week, commencing from the 11th of August, 1870, the day on which the mother applied to M.:-Held, that the 7th section of 12 & 13 Vict. c. 45 gave the Court no power to amend this invalid order, by alleging the application to B. instead of the application to M., or by making the payments to begin from the 11th of April, 1871, instead of from the 11th of August, 1870.

[For the report of the above case, see 42 Law J. Rep. (N.S.) M.C. p. 1.]

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, ss. 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 wereafterwards taxed to the board at 551. 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 judg ment 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.

Littler (on Nov. 25th) shewed cause.
Clay supported the rule.

The arguments are fully stated in the judgment of the Court.

Cur. adv. vult.

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 garnishees) 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. 58. 8d.), for costs on a rule by Frankland against the Board, which had been discharged with costs. By the order 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 judgment, 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. (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.