AYRSHIRE AND GALLOWAY RAILWAY.

HC Deb 09 February 1846 vol 83 cc541-3

SIR JOHN YARDE BULLER

brought up the Report on the Petition for the Ayrshire and Galloway Railway Bill. On the question that it do lie on the Table,

MR. HODGSON HINDE

begged to be permitted, before the Report was received, to ask a question of the Attorney General, on a point of law which had been raised and decided by the Committee. He did not wish to impugn the decision of the Committee; but he thought it necessary, in a case which involved so serious a point of law as regarded Scotch Bills, to have the opinion of the Attorney General. Parties in Scotland came before that House to ask for its consent to a contract drawn up between themselves in a manner which they considered perfectly valid. He wished to direct special attention to the case of the Ayrshire and Galloway Railway. The 40th Standing Order of the House provided that parties who appeared as trustees to Railway Bills should bind themselves, their heirs, executors, administrators, and assigns, duly to the performance of the contract, and that if the parties did not so bind themselves and their heirs, &c., they should not be admitted as having complied with the Standing Orders. Now the objection taken to the contract, in the case before them, was, that the parties who were the trustees named in it were also shareholders, and therefore not bound as the Standing Orders required, and the Committee came to the following Resolution in consequence:— Resolved—That the Standing Orders in this case have not been complied with, inasmuch as subscription to the contract deed is not valid. Now, the practice having been strictly in accordance with the usual practice in Scotland, the parties took the best opinions which they could obtain upon the law of the case, and they appealed to the best authority in that House upon it. And he, without fear, appealed to those Gentlemen who were conversant with the law, both of Scotland and England, whether the fact of trustees having signed the contract deed as shareholders invalidated the contract so far as to prevent remedy at law.

The ATTORNEY GENERAL

thought it of course his duty, appealed to as he had been, to state what opinion he had formed with regard to the point submitted to him. Under the Standing Order mentioned by the hon. Gentleman, it was required that the parties subscribing to the deed as trustees should bind themselves, their heirs, executors, administrators, and assigns. The effects were understood to be, that the subscription deed so signed was then a deed to which the shareholders were the parties of the first part, and the parties of the second part were the two trustees. In the case submitted by the hon. Gentleman, the decision was that one of the trustees named in the deed being also a shareholder—[An hon. MEMBER: Both the trustees being shareholders]—that, consequently, the shareholders had covenated separately and jointly to the amount of the subscription with trustees who were at the same time covenanters and covenantees to a contract made by themselves and with themselves, and that the deed was therefore invalid. Since the Committee had arrived at that decision they had, he believed, modified it in this manner—that the deed was invalid so far as affected the trustees alone. Now, it appeared to him (the Attorney General) that the Committee, with every respect for them, had entirely mistaken the case. The question was, whether the subscription contract deed was or was not in compliance with the Standing Orders, which required that the parties to it should bind themselves, their heirs, executors, administrators, &c., to the performance of the contract. Now, that was done by the trustees as well as the shareholders. It was certain that in a court of law there would be difficulty of proceeding, because a party could not sue himself. But in a Court of Equity, where the objection would not prevail, the parties would be compelled to fulfil their contract. But in this case the House should recollect that it was a Scotch case, and that in Scotland no such difference existed as in this country between Courts of Law and Equity, and it would not so much signify whether the party were liable in law or in equity only. His opinion therefore was, that the contract deed was in strict compliance with the Standing Orders. That even in England it would be good, but in a case under the law of Scotland, there could be no objection.

SIR JOHN Y. BULLER

, as the chairman of the Committee whose decision was impugned, begged leave to offer a few observations upon the subject, although he confessed it would not become him, after the opinion given by the Attorney General, to venture to contest his view of the law of the case. It had now been laid down decidedly as a point of law; but the decision of the Committee of which he was chairman was given in accordance with decisions of the last Session, and no Bill under similar circumstances would, under those decisions, have been allowed to proceed. But were any lawyer except the Attorney General asked whether the remedy in a Court of Equity, to which the learned Attorney General had alluded, would not be worse than the disease, what did the House think would be his answer? However, he had no objection to allow the question to be referred to the Standing Orders' Committee. Let that Committee take the whole question into consideration; and if they thought that all subscription contracts so signed as those under consideration were valid, let them so decide it, and let the decision be received as final. But even in case such were the decision, he hoped that Gentlemen would not put themselves in the anomalous position of being trustees and shareholders under the same contract.

MR. RUTHERFURD

agreed with the Attorney General, that the decision of the Committee was erroneous.

MR. GREENE

suggested that, instead of sending the case before the Standing Orders' Committee, the Report should be referred back to the Committee which had sent it up. He moved that it be recommitted.

MR. STRUTT

differed from the Attorney General; but, admitting the correctness of that hon. and learned Gentleman's view of the law, he thought that there should be some provision against the extreme difficulty of the parties obtaining relief only in the Court of Chancery. He had some doubts, even, if the Standing Order had not been expressly framed with a view of providing against the chance of appeals to Equity, and of compelling such a state of things as would substitute the shorter relief to be had in a Court of Law.

Amendment agreed to. Report recommitted.