London, 16th September, 1833.

"On demand, I promise to pay William Thomas Hodsoll, or order, the sum of five hundred pounds, for value received, with interest at the rate of four per cent.; and I have lodged with the said William Thomas Hodsoll the counterpart leases, signed by George Davis, John Jewell, William Hill and William Gould, for ground let by me to them respectively, as a collateral security for the said five hundred pounds and interest. "£500. Wm. Thorne."

This paper was stamped as a promissory note. It was objected that, in respect of the latter part of it, there should also have been a stamp as for a mortgage or agreement. The learned Judge admitted the note; and, proof being given of the signature and indorsement, directed a verdict for the plaintiff on the first count, giving leave to move for a nonsuit. Gray, on a former day of this term, obtained a rule nisi accordingly.

Maynard now shewed cause. No stamp was requisite, in respect of the additional matter, to enable the plaintiff to give this paper in evidence as a note. First, the additional matter does not qualify its effect as a note. In Wise v. Charlton (a) the instrument was in the present form: and, it appearing to have had a promissory note stamp before it was completed, it was held that, assuming the part relating to the deposit of title deeds to constitute a mortgage, the mortgage stamp might be affixed after the making, and yet the instrument be sued on as a note. That shews that the part

(a) 4 A. & E. 786.

Queen's Bench, 1846.

FANCOURT

v.

THORNE.

Volume IX. 1846.

FANCOURT

v.

THORNE.

which here constitutes the promissory note may be proceeded upon without reference to the rest. It is not sought to make any use of the rest, which need not be looked at for the purpose of giving effect to the note: and that is the proper test; Williams v. Gerry (a), Smart v. Nokes (b), Odye v. Cookney (c), Robson v. Hall (d) (which is apparently recognised by Holroyd J. in Reed v. Deere (e)), Evans v. Pratt (g), Shipton v. Thornton (h). But, further, no stamp was requisite here in respect of the latter part of the instrument, even considered by itself. It is not a mortgage at all: it is a memorandum of a fact only, and neither constitutes nor furnishes evidence of a contract. An acknowledgment of a liability to a claim, with a promise to pay, was held not to require a stamp, in Beeching v. Westbrook (i), on the ground that the stamp was required only for documents shewing the terms of a contract. [Lord Denman C. J. referred to Robertson v. Showler (k).]

Butt and Gray, contrà. Wise v. Charlton (1) was a case in which the present question could not arise, inasmuch as there were stamps sufficient for each part of the instrument, and the promissory note stamp was affixed before the note was made, which was enough in an action brought on the note. But here is an equitable mortgage, or at least a writing furnishing evidence of a contract of lending and borrowing, without any stamp. [Patteson J. No: it is merely an asser

1846.

FANCOURT

v.

THORNE.

tion of the fact of the deposit: How can you distin- Queen's Bench. guish the case from Beeching v. Westbrook (a)? How can you say it is an instrument binding the parties? Lord Denman C. J. It merely mentions a fact which in itself might be treated in chancery as a mortgage: the written instrument is no mortgage.] The letters in Beeching v. Westbrook (a) were not such as to furnish evidence of an agreement. [Patteson J. The Court of Exchequer assumed that they contained an acknowledgment of a debt and evidence of a previous promise. Lord Denman C. J. This is not a contract between parties: it is in vacuo.] ·

Per Curiam (b).

Rule discharged.

(a) 8 M. & W. 411.

(b) Lord Denman C. J., Palleson and Williams Js.

The QUEEN against The GREAT NORTH of

ENGLAND Railway Company.

INDICTMENT. The first count charged that, before and at the time of the committing of the offences &c., to wit 3d July 1838, there was, and from thence hitherto hath been, and still is, to wit at the township

of Hurworth, in the county of Durham, a certain common and public Queen's highway, leading from the village of Hurworth, in the county of Durham, unto Croft Bridge, also in the said county, used by and for all the liege subjects &c., on foot, and with their horses, &c., and carriages, to go, return, &c., at their free will and

Friday,
June 12th.

A corporation

aggregate may

be indicted for

a misfeasance. As, an incorporated rail

way Company,

for cutting through and obstructing a

highway by works per

formed in a

course not con

formable to the

powers conferred on the Company by act of Parliament.

Volume IX. 1846.

pleasure and that The Great North of England Railway Company (a), on the said 3d day &c., with force and arms, at the township &c., unlawfully and injuriously GREAT NORTH did cut through, dig up and subvert, and did cause to

The QUEEN

V.

of ENGLAND

pany.

Railway Com- be cut through, &c., great part of the said highway, to wit forty yards &c. of the said highway, and then and there, unlawfully and injuriously, did dig and make, and did cause to be dug and made, across the said highway, a certain cut and trench, to wit a cut and trench of great length &c., to wit of the length &c., and then and there, unlawfully and injuriously, did remove, take and carry away, and did cause to be removed, &c. from and out of the said cut and trench, divers large quantities of earth, &c., to wit one hundred tons &c., and then and there, unlawfully and injuriously, did cast, lay down, &c., and did cause to be cast, laid down,

(a) Stat. 6 & 7 W. 4. c. cv., local and personal, public, "for making a railway from near the river Tyne to or near the river Tees, to be called "The Great North of England Railway,' in the county of Durham," by sect. 1, incorporates the Company by the name and style of The Great North of England Railway Company."

Sect. 11 authorises the Company, "for the purposes and subject to the provisions and restrictions of this act," to enter lands &c., and, among other powers, to construct in, upon, across, under or over the railway, or in, upon, across, under, or over any lands, &c., roads, &c., such inclined planes, &c., bridges, &c., cuttings, &c., as they shall think proper; and also to divert or alter the course of any rivers, &c., roads or ways, or to raise or sink any such rivers, &c., roads or ways.

Sect. 73 prescribes the width, ascent, &c., of any bridge erected for carrying any public carriage road over the railway.

Stat. 7 W. 4. & 1 Vict. c. cii., local and personal, public, "to enable "The Great North of England Railway Company' to extend the line of their railway, and to make two branches therefrom; and for other purposes relating thereto," gives power to extend the railway, and enacts that all the powers, &c., regulations, &c., of the former act (except such as are expressly repealed &c.) shall extend to this act, and the works and things hereby authorized, and shall operate and be in force in respect to the objects and purposes of this act, and has a section (35) analogous to sect. 79 of the former act.

1846.

The QUEEN

V.

GREAT NORTH

of ENGLAND

Railway Com

pany.

&c., divers large quantities of bricks, stones and lime, Queen's Bench. to wit 100 loads &c., in and upon the said highway; and the same part of the said highway so cut through, &c., and the said cut and trench so dug, &c., and the said bricks, &c., so cast, laid down, &c., as aforesaid, with force and arms then and there, unlawfully and injuriously, did keep, maintain and continue for a long space of time then next following, to wit &c. By means of which said several premises the said highway, on the said 3d day &c., and for and during all the time aforesaid, became and was obstructed and stopped up, so that the liege &c., on &c. and for and during all the time aforesaid, could not go, return, &c., as they ought &c.: to the great damage and common nuisance of all her Majesty's liege subjects going, &c. in through and along the Queen's common highway aforesaid to the evil example &c., and against the peace &c. (not adding "against the statute").

The second count charged an offence in the same form as the first, except that no termini were stated.

The third count alleged the existence of a highway, and the cutting and digging it and making a trench across it, as stated in the first count, and then charged that the defendants also then and there, unlawfully and injuriously, did erect and build, in and upon the said last mentioned highway, a certain bridge, to wit a bridge of bricks, stones and other materials; and the same part of the said last mentioned highway so cut through, &c., and the said cut and trench so dug and made, and the said bridge so erected and built, as last aforesaid, with force and arms then and there, unlawfully and injuriously, did keep, maintain and continue for &c. (as in the first count).