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persons, or body or bodies politic or corporate, spiritual or lay, respectively, as shall be or be deemed to be owner or owners of, or interested in any houses, buildings, erections, projections, encroachments, lands, tenements, or hereditaments, within the said city and county, as the said commissioners shall think right and proper to be taken or used for the purpose of making such improvement, for the absolute purchase thereof respectively, or for any damage to be sustained by the proprietors thereof in effecting such improvement: Provided always, that nothing in this act contained shall authorize and empower the said commissioners to take or use any house, building, yard, garden, orchard, lawn, shrubbery, or plantation, without having previously obtained the consent of the owner or proprietor thereof."

By sect. 100, in case the parties were incapable to treat, the amount of satisfaction and compensation was to be settled by a jury.

By sect. 110 damages under 201. might be settled by justices.

Sect. 117 was as follows:-“And be it further enacted, that upon payment, or legal tender, of such money as shall have been agreed upon between the parties, or awarded by a jury or justices, in manner [115] aforesaid, for the purchase of any lands, or of any estate or interest in any lands, to the respective proprietors of such lands, or other person entitled, according to the provisions of this act, to receive such money, within three calendar months next after the same shall have been so agreed upon or awarded, or whenever any of the respective cases shall happen, wherein such money, satisfaction, or compensation, is hereinbefore authorized or directed to be paid into the Bank of England, then upon payment into the Bank of England, in manner in such case hereinbefore authorized or directed, it shall be lawful for the said commissioners immediately to enter upon such lands, and thereupon such lands, and the fee simple and inheritance thereof, together with the yearly profits thereof, and all the estate, use, trust, and interest, of all parties therein, paid or compensated for by such payment as aforesaid, shall thenceforth be vested in, and become the sole property of, the said commissioners, to and for the purposes of this act ; and the said commissioners shall not be bound to see to the application of any such purchase-money, compensation, or satisfaction ; and such payment, or tender and conveyance, as herein before mentioned, or such deposit in the Bank of England as aforesaid, shall not only bar all right, title, interest, claim, and demand, of every such party, but shall also bar all dower and all estates-tail and other estates in reversion and remainder, and all rights, titles, limitations, and trusts whatsoever, of and in the said lands so compensated and paid for as aforesaid : Provided nevertheless, that before such payment, tender, or deposit, in the Bank of England, as aforesaid, shall have been made, it shall not be lawful for the said commissioners, or for any person acting under their authority, to enter upon such lands for any of the purposes of this act, save for the purposes of surveying or valuing the same for the purposes of this act, without [116] the previous consent of the owners and occupiers thereof respectively.”

The bill having gone through the different stages in the House of Commons, was, on the 24th of June, read there a third time, passed, and sent up to the Lords. In the House of Lords the bill was read a first and second time, and referred to the committee of standing orders; and the following extracts from the journals of the House of Lords were given in evidence :

“ Die Jovis, 18° Julii, 1839. “The Earl of Shaftesbury reported from the Lords-committees appointed to consider of the bill, intituled. An act for better paving, lighting, and improving the city of Norwich and county of the same city,' that the committee had met, and considered the said bill, and, in the first place, proceeded to inquire how far the standing orders of the House, relating to bills for the improvement of cities and towns, have been complied with on this bill; and had found that notices of the bill have been inserted in the county newspapers and in the London Gazette, and have been affixed on the church doors of the several parishes affected by the bill

, within the period limited by the standing orders; but the committee had found that such notices did not contain any mention of the intention of taking power for lighting and improving certain parts of the town of Norwich within the county of the city of Norwich, without the consent of the owners and occupiers of such district; and that powers for that purpose are proposed to be taken by the present bill. The committee further found that powers for the compulsory purchase of houses and lands are contained in the bill, and that no application has been made to the owners, lessees, and occupiers, of such houses and

lands, as is required by the standing orders. Under these circumstances the committee were of opi-[117]-nion that it would be necessary to strike out of the bill all the provisions contained therein for the purpose of lighting and improving the parts of the town of Norwich within the county of the city of Norwich, without the consent of the owners and occupiers thereof, and for the compulsory purchase of houses and lands. Upon such opinion being intimated, certain petitions were presented to the House, praying to be heard by counsel against the bill and against the proposed alterations. The committee have, therefore, thought it right to direct the bill to be reported to their Lordships in its present state, and recommend to their Lordships to refer the said bill to the standing orders committee, as an opposed private bill.

“Which report being read by the clerk,
“Ordered, that the said report do lie on the table.

“Ordered, that the said report, together with the bill intituled · An act for the better paving,' &c., be referred to the committee appointed to consider how far the standing orders of this House relating to certain railway bills and opposed private bills, have been complied with on such bills.”

The following extract from the proceedings of the standing-orders committee was also produced :

“Die Martis, 23° Julii, 1839. “The Earl of Shaftesbury in the chair.

“ It appearing from the said report that the notices of the bill, though given within the period limited by the standing orders, did not contain any mention, &c. (as in the report, ante, p. 116)

“After discussion,

“It is moved to resolve “That the standing orders have not been complied with on this bill, and that the committee do not recom-[118]-mend to the House that the said orders should in this case be dispensed with.

“The same is, upon the question, agreed to.”
And the following extract from the journals of the House :-

"Die Jovis, 25° Julii, 1839. "The Earl of Shaftesbury reported from the Lords-committees appointed to consider how far the standing orders of the House relating to certain railway-bills and opposed private bills have been complied with on such bills, and to report to the House, and to whom was referred the bill intituled, 'An act for better paving,' &c. ; and to whom were also referred the report from the committee on the Norwich Improvement bill, and the petition of R. J. Harvey, &c., owners of estates in the county of the city of Norwich, praying to be heard by counsel in support of the said bill

, with leave to the petitioners to be heard by their agents in support thereof; that the committee had met and inspected the said bill, and had considered the said report, and also the said petition, and had inquired how far the standing orders of this House, relating to matters required to be done by parties promoting bills for the improvement of cities or towns previously to the second reading of such bills, have been complied with on this bill, and had found that notices of the bill had been inserted, &c. (as in the report, ante, p. 116): and the committee do not recommend to the House that the standing orders should in this case be dispensed with.

" Which report, being read by the clerk, was agreed to by the House."

In consequence of this report, the parties interested in the bill, not considering it experient to proceed with it, abandoned it altogether.

[119] The defence to the action, in substance, was, that the plaintiffs were chargeable with gross ignorance and negligence in not having prepared the notice as required by the standing orders of the House of Lords.

The Lord Chief Justice, in summing up, directed the jury that the question they had to determine was, whether the failure of the bill arose from a culpable degree of negligence on the part of the plaintiffs, or whether they shewed reasonable care and skill in that which they had to perform. His lordship further observed, that the

point to be considered was, whether the plaintiffs had comported themselves with due diligence, and with a proper degree of knowledge of those standing orders, which it was peculiarly their duty to carry into execution. For it was to be supposed that in the character in which they held themselves out to do business as parliamentary agents, they were thoroughly conversant with all the particular facts, in carrying a bill through the House, necessary to insure its passing. His lordship then commented on the standing order of the House of Lords, requiring application to be made to the owner or lessee of lands or houses; and said that it was undoubtedly a very proper clause, that if there was any bill which intended taking, by the force of the bill, any property belonging to any individual against his consent, he should have due notice of the bill before it was passed, in order that he might appear and make such opposition to the bill as he thought the justice of the case required. It was obvious that a notice would be necessary when specific property was intended to be taken ; for instance, in a bridge bill, where, in order to make the access to the bridge more complete, it was requisite to take either a house or some portion of ground. His lordship then applied similar observations to canal and railway bills, and bills for the alteration of a turnpike road. “In all these cases” (his lordship observed) “ the act [120] may be said to take away property from some person, and an omission to apply to that person, for his assent or dissent, would be a breach of the standing orders, and would import a gross degree of negligence on the part of the individual whose duty it was to see that such standing orders had been complied with. Therefore, if the intended act has the same degree of reference to the standing orders as those others have, which I have mentioned, I should think it gross negligence on the part of these plaintiffs, who undertake the business of parliamentary agents, if they had not themselves applied, or caused applications to be made by their agents in the country, to ascertain the assent or dissent of the parties whose property was so to be taken. But looking at this bill, I cannot help entertaining a very considerable degree of doubt, whether the fourth standing order can apply to this case. It is one question whether the parties have or have not had notice that parliament may pass a bill which has such a clause in it; it is another and different question whether it lies within that precise standing order. The bill in question does not at all contemplate the taking of any one's land or property specifically ; it only supposes that, in the course of events and of time, it may become necessary to widen some streets, and to alter their direction, for the purpose of improving the city ; so that all the powers pointed out by the proposed statute were only given contingently,

-if at some future time it should seem fit to exercise them. The question, therefore, is,-there being no specific object in view and no particular person to whom notice could be given, whether it was necessary to ask every man in the city who had property there, for his assent; for every man's property might possibly be affected.” His lordship then read the sections of the bill, observing that there appeared to be a mistake in the report of the committee in stating that there was a compulsory clause in the bill, for taking [121] houses and lands, inasmuch as there was no compulsory clause for taking houses at all; and his lordship added, “I cannot help thinking that it is so extremely doubtful, whether the fourth standing order could apply to a case of this sort, that, at least, it would be a hard measure to say, that persons were guilty of gross negligence, if they did not understand that order in the way in which the defendants have sought to apply it.”

The jury returned a verdict for the plaintiffs for 5431., being the sum they had paid out of pocket.

Channell Serjt., in Hilary term last, obtained a rule nisi for a new trial, on the ground of misdirection ; against which,

Bompas Serjt. now shewed cause. According to the resolutions of the standingorders committee of the House of Lords, which were afterwards adopted by the House, the plaintiffs were considered not to have complied with the standing orders in two particulars ; first, in respect to the notice as to lighting the town; and, secondly, as to the application to the owners of property under the clause relative to taking lands, &c. It is understood that no question is now raised upon the first point. (Channell Serjt. assented.] Then the only question is, whether, because the plaintiffs have put a wrong construction upon the standing orders of the House of Lords, or rather a different construction from that which the House has adopted, they have been guilty of such gross negligence as to debar them from all right to recover a remuneration for their work and labour, or at any rate to be repaid the costs out of pocket. The

application of the standing orders to such a bill as the present is, to say the least of it, by no means clear. The other side contend that this is a bill falling within the first of the classes referred to by the standing orders, as [122] a bill for “paving, lighting, watching, cleansing, or improving cities or towns," and this may be admitted ; but then it is argued that as, by the 96th and 117th clauses of the bill, the commissioners are authorised to purchase houses, &c. for widening streets and squares, the fourth standing order will apply; and that an application in writing should have been made “to the owners, lessees, and occupiers, and that lists should have been made of such owners, lessees, and occupiers, distinguishing which of them have assented, dissented, or were neuter, in respect thereto. But, to any ordinary understanding, the interpretation that would be put upon this rule, would be, that it applies to bills for railways, canals, &c., or perhaps to paving bills, where specific property is to be taken under the powers of the act. It appears that the plaintiffs were of this opinion, and so also was the Lord Chief Justice at the trial; and that alone is sufficient to shew that the plaintiffs, though they may have been wrong, were not chargeable with negligence or gross ignorance. The construction put upon the order by the House of Lords would give rise to insurmountable difficulties. To whom is the application to be made? To every owner of land in a city that may have 70 or 80,000 inhabitants? Or suppose such a bill to be brought in respecting the metropolis, what would have to be done in such a case? The order refers to bills “by which any lands or houses are intended to be taken,” but, as construed on the other side, it ought to be read “by which any lands or houses may hereafter be intended to be taken.” Besides, as the bill was lost upon two grounds, it cannot be said that it was so lost on the ground of this objection only; and the other objection has been abandoned.

Channel] Serjt. in support of the rule. The point as to the other objection was left properly to the jury. With regard to both objections there have been three [123] decisions against the plaintiffs ; lst, that of the committee appointed to consider the bill (ante, p. 116), 2dly, that of the committee of standing orders (ante, p. 117), and, 3dly, that of the House of Lords (ante, p. 118); all shewing that the plaintiff had put a wrong construction on the fourth order. The Lord Chief Justice at the trial expressed a strong opinion as to the objection now under consideration, that the order did not apply to the bill in question; and the jury therefore, fettered by this direction, found that there had been no negligence on the part of the plaintiffs. It cannot be argued that the decision of the House of Lords was wrong in their interpretation of their own order; and it was the duty of the plaintiffs, as parliamentary agents, to be acquainted with its meaning. It is not denied that the Lord Chief Justice was bound to give an opinion upon the subject for the guidance of the jury. (Cresswell J. Do you mean to say that there was any negligence imputable to the plaintiffs, beyond the fact of their not knowing that the bill would be affected by the order in question?] No other negligence is imputed to them. [Cresswell J, And you admit that my lord was bound to give an opinion on that point.] It need not have been so strongly expressed. It is submitted that the bill did fall within the fourth standing order. This is not a question about compulsory powers to take land; for it is true that no such powers are given by the bill; as all that is given is a power to treat with parties. But it is clear that this is a bill by which land is “ intended to be taken.” The rule would necessarily apply to all railway bills. [Cresswell J. Not, in case no land was intended to be taken. Tindal C. J. Suppose a man made a railway through his own land, and an act were required to enable him to take tolls, could it be said that the rule applied, and [124] that the party was bound to make an application to himself ? Erskine J. The order says, “if lands are intended to be taken ;” that condition overrides all the clause.] If there had been any provision in the bill as to taking any particular land, there could be no question but that the rule would apply ; but the most unlimited powers were asked for as to taking land generally. There was no notice that any power to take land was given by the bill, and the safeguards required by the standing orders of the House were therefore entirely thrown aside. But the greater the powers sought for, the greater the caution necessary. [Coltman J. What do you consider would have been a perfect compliance with the order in this case ? That all the owners of property in the city should have been applied to?] Yes ; inasmuch as the promoters of the bill claim the right to take any part of such property. [Cresswell J. What should they have

asked them to assent to?] To the exercise of the general power. At any rate the published notice should have specified what powers were sought to be obtained.

COLTMAN J. It is true that this case was left by my lord to the jury, accompanied by strong observations; but I think they were necessary from the peculiar circumstances of the case. He was called upon to state his opinion; and to my view he would have been wrong in not telling them, that, looking at this bill, he entertained considerable doubt whether the fourth standing order could apply to it. The observations of his lordship, even assuming that a mistake had been committed by the attorneys, ought, in my opinion, to have been made to the jury; and, if upon the evidence submitted to their consideration they had found gross negligence on the part of the plaintiffs, I think their verdict must have been set aside.

[125] ERSKINE J. I am of the same opinion. I think the construction of the standing orders of the House of Lords turned upon a question of law; and, looking at the words of the order in question, it is, to my mind, exceedingly doubtful whether it would apply to this case. In leaving the case to the jury, it was not necessary for my lord to give a decided opinion on the construction of the order : but the construction being doubtful, I think attorneys cannot be said to have been guilty of such gross negligence, in construing it as the plaintiffs did, as to defeat their right of action for business done. It is unnecessary to say whether the order does or does not apply in this case ; it is sufficient to remark that the words of the order are by no means clear, or at least so clear as to render the plaintiffs open to the charge of gross negligence; and I agree that if the jury had arrived at such a conclusion—no particular land or property being directly required to be taken for the purposes of the intended actthere would have been grounds for the court to grant a new trial.

CRESSWELL J. I also think that the rule ought to be discharged. There are two descriptions of negligence; negligence in fact, and, what may be ter ed, negligence in law. If the plaintiff had neglected to give the notices required by the standing orders, that would have been negligence in fact; if there had been negligence in the form of framing those notices, that might have been negligence in law. But that cannot be considered as gross negligence, concerning which persons of competent skill may entertain a doubt. The construction of a written instrument is a question for the court; it was for the judge, therefore, at the trial, to say whether the construction of these orders of the House of Lords was so doubtful as to exonerate an attorney from gross negligence, who had put a construction upon [126] them, which turned out, according to the view taken by the committee of the House, not to be correct. Now I must say, I participate fully in all the doubts entertained by my lord at nisi prius, as to the effect of these orders. Perhaps it might not be safe to say that the committee of the House of Lords were wrong in their conclusion; it might possibly be considered an invasion of the privileges of the House ; but I certainly consider the point extremely doubtful, and if I had to try the case at nisi prius, I should direct the jury in the same manner. I think, therefore, that the direction and the verdict are both right.

TINDAL C. J. was understood to concur.
Rule discharged.


[S. C. 4 Scott, N. R. 713, 1 D. N. S. 691 ; 11 L. J. C. P. 247.] To a declaration in case for breaking and entering rooms in the occupation of the

tenant of the plaintiff, and tearing down the ceiling over the landing of the staircase, the roof over the same, and the chimneys, and demolishing the windows, the defendants justified under a deed of assignment, in trust for creditors, from C. H. (who was shewn to be the lessee of the premises before the accrual of the title of the plaintiff, to whom color was given), whereby a right of entry was given to take and sell furniture: Held, that the plea was bad, as confessing more than it avoided, inasmuch as the right to enter did not give a right to tear down the ceiling, &c., unless entry could be obtained in no other way ; which was not averred.

Case. The declaration stated that certain rooms and apartments, parcel of a certain messuage, together with certain furniture, chattels, and effects, to wit, &c. of

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