not

residentiary, shall be styled canons; and then we have a real express enactment of something which is at least reasonable, or which we cannot think altogether unreasonable. And when we look at another section of the act of parliament, which, for another purpose, has been relied on by Mr. Mellish, we find, with respect to the cathedrals of the new foundation that a new order of men is to come into existence who, in effect, are to be non-resident prebendaries in the churches upon these new foundations, and we find this new order corresponding for many purposes indeed for all-with the non-resident prebendary already in existence, and which has existed for centuries; and we find the statute itself confers on them the style or title of honorary canons. Why then are we to say there is anything unreasonable or contradictory to a provision which would apply to non-resident prebendaries already in existence the title of canon, when we find a corresponding body of men brought into existence for the first time and the term honorary canon expressly applied to them by the provision itself? And when we look to the 93rd section, it falls short altogether of the effect which has been contended for on the part of the defendants. The words are only that the word "canon"-that is, in the construction of this act, "the term 'canon' shall be construed to mean only every residentiary member of the Chapter," that only means that when we find in the operative or enacting provisions of this act of parliament that the term canon is used, then the term canon is to be construed canon residentiary; and beginning with the 2nd section and going on throughout the act of parliament down to the 93rd section, there is no one instance to be found in which the word canon is introduced and is made the subject of any enactment at all, but that it may legally receive the construction put upon it by the 93rd section, and be applied to canon residentiary, and canon residentiary alone. Whereas, when we turn to the 1st section, we find it is not an enactment on the subject of canons, but is concerning that class of persons, whosoever they may be, or however composed, who are called members of the Chapter, and that it says that they may be styled canons. We do not

feel ourselves called upon to put a construction on the word "Chapter" as it is to be found in various sections of the act of parliament. The legislature has not thought fit to do so itself. There is an interpretation clause applied to the term "canon," ," and the other term, "minor canon"; but there is no such provision as applied to the word "Chapter," and we must therefore take the word wherever we find it with reference to the context and according as we may think the real meaning may be, and the construction a proper one and a just one. It may have one construction for one purpose and another construction for another, with reference to those prebendaries who are constituted a part and portion of the Chapter itself. The nonresident prebendaries, whose rights are now in question, though constituting an integral portion of the chapter itself, had not for all purposes a seat in the Chapter-they were not summoned to attend, and they were not entitled to attend on all occasions, as members of the Chapter would be; they were merely summoned on particular occasions, and among others, in the election of officers, and whether they are to be termed for all purposes members of the Chapter or not, is a question that does not arise in this case, and we are not called upon to determine it.

Looking, therefore, at the principle of the law, that we are not to take away rights that have been held and enjoyed for centuries by an order of men, members of the Church, unless we find they are taken away expressly or by necessary implication, and finding that so far from these rights and privileges being taken away by any express or necessarily implied provision of the act of parliament, they, as it appears to us, have expressly and in direct terms been preserved to this order of officers in the Church, we are of opinion that the judgment of the Court of Common Pleas must be reversed, and that there must be judgment for the plaintiffs.

Judgment reversed.

Attorneys-Pemberton, Meynell & Pemberton, for appellants; C. Hodgson, for respondents.

[IN THE EXCHEQUER CHAMBER.] (Appeal from the Court of Common Pleas.)

1868. Dec. 2.

MORGAN V. THE METROPOLITAN RAILWAY COMPANY.* Company-Notice to take TenementsSpecial Act-Lands Clauses Act (8 & 9 Vict. c. 18), s. 18.-Obligation of the Company-Action for Mandamus-Damages.

The special act of a railway company enacted, that before the company entered upon or took any tenement under the powers of the act, they should give to the occupier thereof six months' previous notice of their intention to take; and incorporated the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18):-Held, first, that a six months' notice of the company's intention to take certain premises given to the occupier thereof in pursuance of that enactment, was a good notice, binding the company to proceed under the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18); secondly, that such occupier was entitled to maintain an action of mandamus to compel the company to serve a notice to treat under section 18. of the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), and take all steps necessary to assess compensation; thirdly, that in such action the plaintiff might recover more than nominal damages.

This was an appeal from the decision of the Court of Common Pleas (reported 37 Law J. Rep. (N.S.) C.P. 265), upon a special case.

The case is fully set forth in the report below, and the following statement will be found sufficient for the purposes of the present report.

By the Metropolitan Railway (Tower Hill Extension) Act, 1864, s. 13, the defendants were directed to give six months' notice before they entered upon and took any tenement. The said act also incorporated the Lands Clauses Consolidation Act, 1845. The defendants having given a notice under the said section 13. of their special act, refused to take the premises or take steps to assess compensation, and the plaintiff (who had acted on the notice and removed) thereupon brought this action, in which he claimed damages and a mandamus calling on the defendants to issue their warrant to the sheriff, to serve a *Present, Kelly, C.B., Channell, B., Pigott, B., Hannen, J. and Hayes, J.

notice to treat, and to take all steps necessary to assess compensation.

The questions for the opinion of the Court were: First, was the plaintiff entitled to an action of mandamus to compel the defendants to issue their warrant to the sheriff; secondly, if not, whether he was entitled to an action of mandamus to compel them to serve a notice to treat; thirdly, whether, under the circumstances, he was entitled to more than nominal damages.

The Court of Common Pleas had decided the first and second questions in the affirmative.

Horace Lloyd (Keane with him), for the appellants. This case is very like Fotherby v. the Metropolitan Railway Company (1), and one question will be whether that case is good law to its full extent. The defendants were acting under an Extension Act passed in the year 1864, which contained (section 13.) a section (similar to sections contained in all the Metropolitan Railway Acts of that year) which provides that before entry the company must give six months' notice. This section was intended merely to prevent the company from taking compulsorily without giving the occupier a reasonable time to get a new house, and not to alter the course of procedure under the Lands Clauses Consolidation Act. A notice under section 13. was given by the company, and no other notice to treat has been given; and the question is, whether the company can be compelled to proceed by an action of mandamus. It is said that they can, because this was a notice to treat, or, even if it be not, that the company at least have exercised an option, and cannot recede, but must give a notice to treat. It is submitted, however, that this contention is erroneous, that this notice is merely a further step, and is only intended to prevent the company from taking for six months after they are bound by a notice to treat to take the premises, and that nothing equivalent to a notice to treat has been given. First, then, is this a notice to treat? Under the Lands Clauses Consolidation Act, ss. 16, 17, and 18, the company is enabled to give all persons entitled to property, which the act of the company entitles them to take, a notice that the company is willing to treat as to its price. This notice can never (1) 36 Law J. Rep. (N.s.) C.P. 88.

be withdrawn, and the owner on the one hand must not increase the value of the land afterwards, and on the other hand he can force the company on, and make them buy. Everything hangs on the notice, and if it be given within time, all the other steps may be taken after the compulsory powers have ceased to exist. Now, the notice given here does not contain what is required under section 18. of the Lands Clauses Consolidation Act, but is expressly under section 13. of the company's Extension Act. By sections 84. and 85. of the Lands Clauses Consolidation Act the company could have taken immediately by paying the purchase-money or giving security, but as this would be a hardship on an occupier, especially in the metropolis, in every Metropolitan Railway Act of the year 1864 there was introduced a section like section 13, which means that although the company has given notice to treat, it must give six months' previous notice before it can enter, and it was intended that the company should still previously give notice to treat under the Lands Clauses Consolidation Act.

[HANNEN, J. referred to The King v. the Commissioners for Improving Market Street, Manchester (2). KELLY, C.B. referred to The King v. the Hungerford Market Company (3).]

It may be there was an election, but yet this may not be a notice to put the Lands Clauses Consolidation Act in motion. Secondly, assume this notice is an election which cannot be retracted, yet this action of mandamus does not lie. The decision in Fotherby v. the Metropolitan Railway Company (1) was wrong. There cannot be such a right, unless there be a right of action, and no action lies here. Benson v. Paul (4) even decides that a person cannot have an action of mandamus to compel the performance of a contract. It is submitted that there is no right to a mandamus, or, at least, no right to an action of mandamus. The real test is whether or not there is a right of action. The intention was merely to simplify procedure, and obviate the necessity of a person being driven into equity as well as law. In Marriage v. the

(2) 4 B. & Ad. 333, n.

(3) 4 Ibid. 327.

(4) 6 El. & B. 273; s. c. 25 Law J. Rep. (N.s.) Q.B. 274.

Eastern Counties Railway Company (5) the plaintiff had a right of action. The fact that replevin and ejectment are excepted in section 68. of the Common Law Procedure Act shews it was intended that there should be a right of action to which the mandamus might be an adjunct.

Sir G. Honyman (W. G. Harrison with him) was not called on.

KELLY, C.B.-We are of opinion that the judgment of the Court of Common Pleas in this case must be affirmed. It appears that the defendants, under the Extension Act which they have obtained in respect of their railway, were entitled to take the premises in question belonging to or in the occupation of the plaintiff, and that under that act of parliament, by the 13th section, they have given a notice which is in effect that they intended to take these premises by virtue of the powers of their act, at or after the expiration of six months from the date of that notice, which was the 17th of November, 1865. It appears that they have since taken no other step whatever; and when we come to look to their act of parliament we find, besides this 13th section, which renders it compulsory upon them to give the notice six months before they shall take possession of any premises under their Extension Act, that the Lands Clauses Act is incorporated, and that consequently they are bound under the 18th section of that act of parliament to take other steps before, on the one hand, they are enabled to call for particulars of the premises first, and then proof of title, and, on the other hand, the claimant, the owner or occupier of the premises, is enabled to obtain in due course of law the amount of compensation to which he may be entitled. Now, as far as I can see, by this 18th section of the Lands Clauses Act, upon which it was necessary that the defendants should proceed, they must, in the first place, give a notice to treat. That confers certain advantages upon both parties: it entitles the railway company to require particulars of the premises, and it entitles the owner or occupier of the premises to be taken to give those particulars, and also enables him to proceed afterwards to obtain compensation

(5) 27 Law J. Rep. (N.s.) Exch. 185; s. c. (House of Lords); 31 Law J. Rep. (N.S.) Exch. 73.

either by arbitration, if the claim be within a particular amount, or by proceeding before a jury, if that shall be the course which the act shall authorize. It appears that no notice of that kind was given; that the six months elapsed; that the plaintiff, who quitted his premises, gave notice that he had done so, and was about to take or had taken others, and some time after the expiration of the six months, actually did obtain and take possession of other premises, incurred other expenses and resorted to other measures; and that at last, after some very long lapse of time, he commenced this action.

Now, two points are made on behalf of the defendants. In the first place it is contended that the action does not lie at all; that it is an action for damages and also for a mandamus, and that the Common Law Procedure Act, which gives an action for mandamus, and enables in fact the mandamus to be so obtained, does not authorize such action under these circumstances. But upon looking to the case of Fotherby v. the Metropolitan Railway Company (6), we find that it is expressly laid down, in a case which is undistinguishable in principle from the case now before the Court, that where a notice to take premises has been given and the premises have not been taken, and the railway company fail to resort to those proceedings and to take those steps which are necessary in order to enable both parties, the owner of the premises to be taken and the railway company who are to take the premises, to bring the matter to a conclusion, for compensation to be made to the claimant, and for the possession of the premises, with a good title, to be delivered to the railway company,--that in a case of that nature, where the defendants have failed to take the steps which were necessary to bring the matter to a conclusion, such action under the Common Law Procedure Act is maintainable. Lord Chief Justice Erle, in delivering his opinion in that case, after adverting to the facts, which are really quite undistinguishable from those which are now before the Court, observes that, in former times persons in the position of the plaintiff have had recourse to the writ of mandamus issued by the Court of Queen's Bench to

(6) 36 Law J. Rep. (N.8.) C.P. 88. NEW SERIES, 38.-C. P.

enforce their right, but this remedy was fraught with the disadvantages and vexations so concisely and forcibly set out in the Report of the Commissioners upon which the Common Law Procedure Act, 1854, was framed. "The question," he says, "for us to determine is, whether the plaintiff can now avail himself of the remedy of action for a mandamus given in that statute. I am with Mr. Harrison on both the points that he has made. I think that the Common Law Procedure Act, 1854, entitles the plaintiff to bring an action for a mandamus against the defendants for not issuing a warrant when he can shew that he has a right to have the warrant issued, and is personally interested in it, whether he is entitled to any damages for its non-issue or not." Now in this case, in consequence of the notice that has been given, the plaintiff is undoubtedly entitled to call, not for the issuing of a warrant, but to call for the first step, whatever it may be, to be taken in order to bring the matter to such a termination, or to such a conclusion as will enable him to obtain compensation and the railway company to obtain possession of the property. And it appears upon the statement of the case that that step is the issuing of a notice to treat, in conformity with the 18th section of the Lands Clauses Consolidation Act; and that notice not having been issued, we are of opinion that this action for mandamus is maintainable.

But

A question has arisen as to what is the time at which the notice to treat ought to be issued. It is quite unnecessary for us to determine whether the plaintiff would be entitled to call for it before the expiration of the six months. It has been contended that he is not entitled to call for it until the time for exercising the compulsory powers of the act shall have expired. there is here no particular clause limiting the time for the exercise of the compulsory powers of the act; therefore, if no other step had been taken on the part of the company, he would probably have had such time as was necessary to complete the railway works, or as is allowed by the act of parliament for the completion of those works, and that probably would be between four and five years.

It is said that, notwithstanding the notice the company have served, they are

N

not bound to take the premises, and that, at all events, it is optional during the whole time before the powers of the act of parliament have expired, to issue the notice to treat or not at their pleasure.

But we are of opinion that they are bound to issue the notice to treat, in point of time, at latest, within a reasonable time after the expiration of the six months; otherwise the plaintiff, who is apprised by the notice that his premises will be taken away from him, and knows that if proper steps are taken on the part of the company they might be taken at the expiration of six months, would be reduced to the alternative of either being turned out of house and home, having no premises wherein to dwell or wherein to carry on his business at the expiration of the six months, or he must proceed to take premises before the expiration of that period. Under these circumstances it is quite clear that, if the company are bound by this notice at all, it is competent to the plaintiff to call upon them to issue their precept if that be the first step, but as the first step to be taken appears to me to be to serve and deliver the notice to treat, they are bound to deliver such notice, and so put the matter in further course of inquiry within a reasonable time after the expiration of the six months.

Then comes the question whether this notice is obligatory upon them at all. Now, ever since the decision of the Court of Queen's Bench, in the case of The King v. the Hungerford Market Company (7), it has been held, that, where a railway company, or any other public joint-stock company, are entitled under the compulsory powers contained in their act to purchase and take possession of premises, if they give a notice of their intention to take those premises they agree to take them, and the notice, in fact, operates as a contract between them and the owners or occupiers of the premises,-an undertaking from them to the owner or occupier of the premises to become the purchaser of the premises in question. That case, which was decided as long ago as the year 1832, has never yet been questioned, and the result is that, considering its effect upon the case now before this Court, the company having (7) 4 B. & Ad. 327.

given this notice, in November, 1865, of their intention to take the premises at the end of six months, they have agreed to become the purchasers of the premises, and as, under the Lands Clauses Consolidation Act, which is incorporated into their own Act, a number of different steps are to be taken in succession in order to enable the occupier of the premises to obtain compensation, and to enable the company to take possession of the premises which they have thus bound themselves to purchase, they are equally bound, within a reasonable time, to proceed to take all such steps as may be necessary for that purpose; and the case of The King v. the Hungerford Market Company (7) having decided that a notice of this kind is obligatory upon a public company, and the case of Fotherby v. the Metropolitan Railway Company (8) having decided that an action lies for a breach of that duty or obligation, we are of opinion that this action is maintainable, and that the plaintiff is entitled to recover damages by reason of the defendant's not proceeding to take those steps which were necessary to entitle him to compensation and enable him to obtain compensation by force of law, and likewise that he is entitled to a mandamus in the terms prayed.

The particular form of mandamus it is unnecessary to enter upon; but if, as I have observed more than once, the first step to be taken is to be taken by the company, aud that first step is the service of a notice to treat in conformity with the 18th section of the Lands Clauses Consolidation Act, the mandamus should be for the delivery and issuing of that notice, and to take all other steps which may be necessary in order to enable the plaintiff to obtain the compensation to which, under the act of parliament, he shall turn out to be entitled.

A further question is raised by the appeal which is now before us, and that is whether the plaintiff is entitled to nominal damages only, or to more than nominal damages.

With the amount of damages we have nothing to do; but we are all of opinion that in a case of this nature it may well be that the claimant has sustained much beyond

(8) 36 Law J. Rep. (N.s.) C.P. 88; s. c. Law Rep. 2 C.P. 188.