any proceedings in respect of his land under the powers contained in their Act of Parliament.

An ex parte injunction, obtained during the long vacation, was afterwards, upon argument, dissolved by his Honour the VICECHANCELLOR, principally on the ground that the projectors of the South Union Line, having failed in obtaining their Act of Parliament, and having afterwards determined their contract with the plaintiff by a notice, the plaintiff had no equity to enforce that contract against the new Company.

The plaintiff appealed against his Honour's order dissolving the injunction.

Upon the appeal-motion before the Lord Chancellor, the argument proceeded partly on the ground upon which his Honour had rested his judgment in dissolving the injunction, and partly also on the conduct and dealings of the plaintiff with the defendants, and with other persons, relative to his land, subsequently to the passing of the Act of Parliament, and which, it was contended, were of such a nature as to deprive the plaintiff of any title to the interlocutory interposition of the Court by injunction. The material circumstances constituting this part of the case, and upon which exclusively the LORD CHANCELLOR disposed of it, are stated in his Lordship's judgment.

Mr. Wigram and Mr. Sharpe, for the plaintiff.

The Solicitor-General, Mr. Knight Bruce, Mr. Koe, and Mr. Loftus Lowndes, for the defendants.

THE LORD CHANCELLOR :

米

This case, though it occupied two days in discussion, and the affidavits are exceedingly numerous, and branch out into a variety of facts and statements, many of which are utterly irrelevant, turns entirely upon two questions; first, whether the Company which obtained the Act, and is now the existing Company, is or is not bound by the contract entered into by the projectors of the South Union Company; and secondly, whether, if the plaintiff ever had any right against the existing Company, anything has taken place to prevent him from asserting that right by means of an interlocutory injunction,

GREENHALGH ፖ.

THE
MANCHESTER

AND BIR-
MINGHAM
RAILWAY
COMPANY.

[ 789]

Dec. 13.

[ *790 ]

GREEN-
HALGH

C.

THE

MANCHESTER
AND BIR-
MINGHAM
RAILWAY
COMPANY.

[ *791 ]

In the view which I take of the case, it is not necessary for me to give any opinion upon the first point: and I am not sorry to be relieved from that duty; for the question is one of very great nicety and difficulty, and therefore not to be decided, except in a case in which it is absolutely necessary, for the purposes of justice, that it should be decided. And I find in this case what appear to me to be very safe grounds upon which to dispose of it, without at all touching upon that point; and, for the purpose of explaining the grounds of my decision, I will assume that the plaintiff had a right against the existing Company, which he might have enforced in the manner alleged by the bill. I assume that for the purpose of argument merely, and not for the purpose of laying down any rule as to any future case which may occur.

*

The second question then is, supposing that right to have existed when the Act of Parliament passed, in June, 1837, whether anything has since taken place between the parties, that is to say, between the month of June, 1837, and the month of June, 1838, when the contest between the parties arose, to deprive the plaintiff of the right to the protection of this Court by injunction. The right, if it existed, of course existed at the time when the Act passed. Now the right is not, properly speaking, a right of contract, but rather arises out of the contract; for neither in this case, nor in the case of Edwards v. The Grand Junction Railway Company (1), was it a matter of contract; but the equity is this, that what has subsequently taken place, and the position in which the parties stand, give the party seeking the benefit of the contract a right to the interference of this Court, by virtue of an equity which induces the Court to prevent the Company from exercising their legal right, unless upon the terms of adopting and giving effect to the contract which has been entered into by other parties.

In considering how far a party has, by his own conduct, lost the benefit of an equity to which he was once entitled, it is obvious that very different considerations attach to a case in which a party has been all along cognizant of his rights, from those which attach to a case in which he was not so cognizant,

(1) 43 R. R. 265 (1 My. & Cr. 650),

If the case should arise in which both parties were ignorant of
the right which one of them, had he been aware of it, might
have asserted, it might be open to considerable question how far
that ignorance ought to prejudice him. But if the plaintiff is
cognizant of his right, of course he cannot be heard to say that
he did not assert it sooner in consequence of his not being aware
of the advantage to be derived from asserting it. The plaintiff
has relieved the Court from this difficulty: for in a late affidavit,
filed so recently as the 24th of November last, he states that
amongst his papers he found a letter which he sent on the 7th
of October, 1837, to the solicitor of the South Union Company,
when he first received notice of the intention of that Company
to determine the tenancy created by his contract. In this letter,
sent in answer to the notice, he says, "I take the liberty to
object to it, principally for two reasons, which *at first view
your own mind will admit as valid; first, because, if your ideas
be correct, that you can vacate the agreement, the term of con-
tract cannot expire before March next, as your notice was not
delivered until to-day, being eight days after the quarter day;
but secondly, and mainly, because you are not at liberty, as you
and your clients well know, to annul the agreement, as the Act
has been obtained, and the respective shareholders, as recent
advertisements attest, are, each and all, amenable in law to the
united acts of the amalgamated Company, or the prior respective
acts of each Company." So that he tells us in his own affidavit
that, on the 7th of October, 1837, he was aware of his equity,
and was prepared to assert it. Whether that were so or not
might be a matter of some doubt, if it were material to inquire
into the accuracy of that statement-I say the accuracy, because
I find an attempt to support the statement by evidence which
throws infinite doubt upon the truth of it altogether.
plaintiff not only himself swears to a letter not forthcoming,
which he never adverted to before, though this is the third affi-
davit he has made; but he attempts to establish and confirm it
by the affidavit of Thomas Wilson, his shopman, who swears to
a copy of the letter, without saying he ever read or compared it.
Wilson says that he was employed to deliver the letter, and that
the following is a copy of such letter; and he then sets out a

The

GREEN-
HALGH
V.
THE
MANCHESTER

AND BIR-
MINGHAM
RAILWAY

COMPANY.

[ *792 ]

copy in the same words as are to be found in the plaintiff's affidavit, without giving any explanation or information as to how he is enabled to make the affidavit, and swear to the words of a letter which he was only employed to deliver. Still it may be true; but it is not material to inquire into its truth, because, after having made that statement, the plaintiff is precluded from saying that he was not perfectly aware, in the month of October, 1837, of the equity which he is now seeking to assert; and *his conduct therefore must be looked at as the conduct of a party fully cognizant of his rights.

In considering the evidence, two things must be borne in mind, namely, the fact, undisputed, that, upon the union of the two Companies, it was part of the arrangement between them, that the Company which Parliament might sanction should, as far as was practicable and consistent with their scheme, adopt all contracts made by the other parties: and secondly, that, quite independently of enforcing the contract for the purpose of completing the purchase of the plaintiff's land, there was a question existing (adverted to indeed in that very letter), between the plaintiff and the South Union Company, not as to the completion of the purchase, but as to the continuance of the tenancy, a question that depended upon the validity of the notice to quit. Now that arrangement, forming part of the contract, appears to have been communicated to the plaintiff. If, therefore, he thought he had a right to enforce the contract, he must have been, at all events, aware, that there was a chance, at least, that the Company which obtained the sanction of Parliament, and was brought into legal existence by the Act, might, to a certain degree, adopt the contract into which he had entered with the South Union Company. Nothing had passed to prevent them from adopting the contract, if they thought it expedient to do so. It was a point not decided, but remaining entirely open, whether, if the plaintiff had not a right to enforce his contract in equity, he might not still obtain the benefit of it, from the new Company choosing to take it upon themselves.

Now, on the part of the defendants, the Company, certain facts are stated, which, if left unexplained, undenied, unqualified, and not in some way or other *displaced by the statements on

the part of the plaintiff, would, I apprehend, be quite conclusive against the right which the plaintiff is now asserting. In the December following the passing of the Act, the usual course was adopted: circular notices were sent intimating to all persons who received them, and amongst others to the plaintiff, the intention of the Company to proceed under the powers of the Act of Parliament. In January, 1838, that notice was followed by marking out the land to be taken. In the month of May other transactions take place: between January and May whatever was necessary to be done prior to the actual commencement of the work was done; the line was surveyed, and the ground marked out; and in the course of that time the plaintiff is stated to have applied on various occasions to the officers of the Company, to know what quantity of his land they would require in carrying their Act of Parliament into operation. It is also proved, that in treating with a brickmaker, a conversation took place which would show that he contemplated dealing with the land as his own property, except only as to so much as the Company might require for their line.

These facts, which are not a matter of dispute, would bring the plaintiff into this position, viz., that with knowledge of his supposed equity, he not only permitted the defendants to act in exercise of their legal rights, and therefore without reference to his contract, but permitted them to proceed to a considerable extent in the execution of their intended line; whereas, as is stated, and not contradicted, if it had been thought expedient, and the plaintiff had asserted his right, it would have been quite as easy for the Company, under the provisions of the Act, to adopt a line which would have avoided any contact with the plaintiff's land. The affidavits filed on the *part of the Company fall short in not stating what the Company actually did; but it is obvious from what is stated, that a great deal must have been done between January and June, when the plaintiff first asserted his right to an injunction. The mere expense of engineering in marking out the line of railway over the plaintiff's land, though probably not much in itself, was necessarily connected with the whole line, the engineering expenses of which must have gone to a very considerable extent. Then in May advertisements

R.R.-VOL. XLV.

26

GREEN

HALGH

t.

THE MANCHESTER

AND BIRMINGHAM

RAILWAY COMPANY.

[ *795]