^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ 1^ 1 II l^^ M ■ — • — 5 ^> /. ^ FholDgraphic Sciences Corporation 23 MBT MAM STIHT WUSTn,N.Y. I4SM (7U)t72-4S03 4^ CIHM/ICMH Microfiche Series. CIHIVI/ICMH Collection de microfiches. Canadian Inatituta for Historical IWIicroraproductiona / institut Canadian da microraproductions historiquaa Xi^ Technical and Bibliographic Notas/Notat tachniquas at bibllographiquaa The Instituta has attamptad to obtain tha bast original copy availabia for filming. Faaturaa of thia copy which may ba blbllographicaNy uniqua, which may altar ar^y of tha imagaa in tha raproduction. or which may significantly changa the usual method of filming, are checked below. n n n n n Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagte Covers restored and/or laminated/ Couverture restaur^ et/ou pellicuMe I I Cover title missing/ Le titre de couverture manque Coloured maps/ Cartes gtographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Reli* avac d'autras documents Tight binding may cause shadows or distortion along interior margin/ La re liure serrie peut causer de i'ombre ou de la distortion le long de la marge intArieure Blank leeves added during restoration may appear within the text. Whenever possible, these hav« been omitted from filming/ II se peut que certaines pages blanches ajouttes lors d'une restauration apparaissant dana la taxta, mais, lorsque cela Atait poasibia, cas pages n'ont pas 6tA filmAes. Additional comments:/ Commentaires supplAmantairas: L'instltut a miorof llmA la mailleur exemplaire qu'il lui a tti possible de se procurer. Les dAtaiis da oat aKomplaira qui sont paut-Atre uniques du point de vua bibliographiqua, qui peuvent modifier una image reproduite, ou qui peuvent exiger une modification dana la mAthoda normala de f ilmage sont indiqute ci-dessous. D D D Q D D D D D Coloured pages/ Pages de couleur Pages damaged/ Pages endommagias Pages restored and/or laminated/ Pages restaurias et/ou'pellicul4es Pages discoloured, stained or foxed/ Pages dAcolorAes, tachatAes ou piquies Pages detached/ Pages ditachtes Showthrough/ Transparence Quality of print varies/ Quality inAgala da I'imprassion Includes supplementary material/ Comprand du matirial suppMmentaire Only edition available/ Seule Mition disponible Pages wholly or partially obscured by errata sUps, tissues, etc., have been ref limed to ensure the beat possible image/ Les pages totalamant ou partiallement obscurcies par un fauiltct d'errata. una pelure, etc.. ont At* filmAes A nou^'vau da fa^on A obtanir la maiNeure image possible. This item is filmed at tha reduction ratio checked below/ Tha toti Tha poai ofti filml Orig bagi thai sion othi first sion or ill Tha shal TINI whi< Man dlff« antli bagI righ^ raqii me« 10X icum ■ni a •( III mv ■ 14X u lau K am rvau ciion itx inaii |HV s i-u«a wous 22X aix aox / 12X 1SX aox a4x am ,„ aiB:. . aax TiM copy filmed h«r« haa b««n reproduced thanks to tho gonorocity of: Ubrary of tha Public Archives of Canada L'exemplaire fllmA fut reproduit grice A la gAnArosit* da: La bibiiothAqua das Archivaa pubiiquas du Canada Tha images appearing here ere the beat quality possible considering the condition and legibility of the originei copy end In iceeping with the filming contrect specif icationa. Lea imagea suivantes ont AtA reproduites svec ie plus grend soin, compte tenu de ie condition et de la nettetA de i'exempiaire film*, et an conformity avac las conditions du contrat de fllmage. Originei copiea In printed peper covera are filmed beginning with the front cover end ending on the leat page with a printed or illustrated imprea- sion, or the liecic cover when eppropriate. All other original copiea are filmed beginning on the first pege with a printed or illustrated imprea- sion, and ending on the last page with e printed or illuatrated iw p ieas l on. Tlie last recorded f reme on each microfiche shell contain the symbol — »- (meening "CON- TINUED"), or the symbol y (meaning "END"), whichever eppilea. Lea examplaires originaux dont la couverture en papier eat ImprimAe sent fiimte en commen9ant par ie premier plat at en terminant solt par la darnlAre page qui comporte une empreinte d'impression ou d'lllustration, solt par ie second plat, salon la caa. Tous las autres exemplalres originaux aont filmto en commenpant par la premlAre pege qui comporte *jne empreinte d'Impreasion ou d'liiustration at an terminant par la darnlAre pege qui comporte une telle empreinte. Un des symboles sulvants apparattra sur la darniire image de cheque microfiche, seion Ie caa: la symboia — »- signlfia "A SUIVRE", ie symbols V signlfia "FIN". Mapa, piatea, charts, etc., mey be filmed et different reduction retios. Those too large to be entirely included In one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as meny frames es required. The following diegrems illustrate the method: Lea bsrtaa, planches, tebleaux, etc., pauvant Atre fllmto i dea taux de rMuction diffArents. Lorsque Ie document est trop grand pour Atre reproduit en un seui ciichA, 11 est film* A pertir de I'angle aupAriaur gauche, de gauche k droite, et de haut en bes, en prenant la nombra d'imagea nAcassaira. Las diagrammas sulvants illustrant Ie mAthode. 1 2 3 1 2 3 4 5 6 i 'J Copy of opinion of Judge Mason, of the Supreme Court of New York, Samuel Sherwood and Marshal S. Bidwell, Councillors, on the legal construction of the 1 Vic. Cap. 34, submitted by the Shareholders of the Welland Canal Company. Also of a case, submitted by the Agents of the Shareholders residing in England, vfiih the legal opinion of the Law Officers of the Crown thereon : 1st. Copy of the Act authorizing the purchase of the private share- holder in the Welland Canals, 7 Vict. 34. 2nd. Opinion of Judge Mason. 3rd. " of Samuel Sherwood, Esquire. 4th. " of Marshal S. Bidwell. - 5th. Copy of the case submitted by the English Shareholders. 6th. Opinion of Sir Frederick Thesiger, former Attorney General of r.ngland and H. J. Bushby, Esquire, 24th August, 1852. 7th. Opinion of Sir Fitzroy Kelly, Solicitor General of England, and letter enclosing same 15th October, 1852. 8th. Opinion of Sir Alexander E. Cockbum, present Attorney General of England, with letter 5th November, enclosing the same. COPY OF ACT. An Act t6 repeal a certain Act therein mentioned, and to make further provision for enabling the Provincial Uovemment to purchase the Stock held by private parties in the Wel- land CanaL [ 9th December, 1843. ] WHEREAS in and by a certain Act of the Parliament of this Province, passed in the fourth and fifth years of the Reign of Her present Majesty, intituled. An Act to authorize the Stocky held by private parties in the Welland Canal^ to be purchased on behalf of the Province^ after reciting that it was desirable to place the Welland Canal under the exclusive control of the Government of this Province, and for that pur- pose to provide for the purchase from tke private Stockholders in that work of the stock by them held, and which amounted to the sum of One Hundred and Seventeen Thousand, Eight Hundred Pounds, it was, amongst other things, enacted that it shculd and ought to be lawful for Her Majesty's Receiver General, upon ^n order to that effect from the Governor, Lieutenant Governor, or personjadministering the Government of this Province, to issue such num^ejof Debentures as might be re- quired to the several Stockholders in jhe Welland Canal tor a sum equal to the amount of stock held by himbr them, and that such Deben- tures should be n^ade redeemable in twfnty years from their date, and should bear an interest of two per cent, jjer annum on the amount for which they misiit be issued, for the first /two years, three per cent, for the third year, foiur per cent, for the fourth year, five percent, for the "(1 ad taken the Canal out of the hands of the Stockholders, and recogni i the equitable claim of the Stockholders on them for the amount they hac' thus paid, by issuing Debentures to them for such amounts with interest, but that as to the back interest, they postponed the payment of it for an indefinite period and until the revenues of the Canal should reach a sum considerably exceeding not only the principal sums advanced by the private Stockhloders but also the sum of £245,000 in addition thereto, which the Government undertook to raise by loan for the purposes of the Canal. Should the Canal revenues reach the sum of £45,000, it would show that the enterprise. had been successful, and be an omen of a much larger revenue in time to come, the whole of which would be re- ceived by the Government. It is therefore not unreasonable to suppose that the Legislature intended, if the private Stockholders yielded up all the prospective advantages to be derived from the revenues of the Canal| ,i td deal with them on liberal terms whenever the Canal revenue^ should Wanrant it, and instead of merely paying them a sum amounting in the aggregate to simple interest, to allow them an amount which altho* it would not place them in the same situation as if they had regularly leccived their interest, yet would compensate them in some degree fur their losses in being so long kept out of it. Such a supposition is certainly not an extravagant one. It would bo creditable to the Legislature, and it would bo in entire arnordancv with the letter of the Act. It shows a reason for its being (touched in th(! language uned, and also that the obscurity is only apparent, and nriN(*i« from an erroneous view of the equities of thu case, growing out of tho fact that the Stockholders have since 1843 received interest on tho principal. But for this erroneous idea, there could be no question os to the meaning of the sixth Section, and I think it is manifest from a ))orusal of the whole Act including the preamble, that the obvious meaning is that which best accords witli the intention of the Legislature;. I am therefore of the opinion that Stockholders arc entitled under the Act to 6 p^r cent per annum on the amount of stock subscribed by them respectively from the lime the same has been paid in, until the time when the chafrge is to be made on the consolidated fund. JOHN L. MASON- New York, 22d November, 1851. CASE AND OPINION OF SAM. SHERWOOD, ESQ. I The private Shareholders of the Wei and Canal made their sub- scriptions in about 1826, and paid in their subscription mbney, — the Government Stock eventually exceeded in amount that of the private Stockholders, and the Government, in consequence, retained the control, — the Canal was completed and commenced its operations, — no dividends however were made, but the Tolls were received by the Government. Several efforts were made at different periods to give the private Stock- holders either a dividend or an equivalent for the funds they had invested. In 184S, an Act was passed, intituled, "An Act to repeal a certain " Act therein mentioned, and to make fuilher provision for enabling the " Provincial Government to purchase the Stock held by private parties in " the Welland Canal." At that period the principal of the private Stockholders amounted to £117,800, which had been paid in about 17 years previous, and at 6 per cent per annum, would in 16 years and 8 months, have given cent per cent, or £1 17,800. The apparent design of the Act was to fund the principal and inte- rest, making £235,600, to issue Debentures for one half payable in 20 years, 6 per cent interest payable semi-annually or 6 per cent interest if payable m England. ' And if the Canal should realize tho amount represented, tiie Govern- ment would pay the otliMr half, and accordingly the seoond section pr»> videe ** that there shall bo charged upon tl consolidated revenue of thii " Province, fortho benefit of the private Stockholders in the said Wol- " land Canal, tho sum of £1 17,800 currency ofthis Province, with interest " thereon from the lat day of January, 1843." And the 6th Section provides for tho payment of the other half! when the aggregate of the tolls should reach a given amount, viz : " That so *' soon after the completion of the said Cunal, as the tolls received there* '* on for any one year shall amount to the sum of £45,000 ourrenoy of " this Province, then shall be charged upon the consolidated revenue fund " thereof, an amount equal to 6 per centum per annum on the private '* Stock subscribed, from the time the sumo bus been paid in for the **■ benefit of the private Stockholders aforesaid, or their legal represent* " atives." The 7th Section provides, " that Debentures shall be issued to such " Stockholders for tho amount of their respective claims, bearing interest " and payable in the same length of time after their issue, at the same " places " &c. as the previous Debentures. It is quite certain that at the time of the passage ofthis Act in 1843, the interest at 6 per cent was equal in amount to Oie principal. And that the Government deemed it wiso to pay the Stockholders their principal and interest, and take the entire control and direction of thp Canal. The first class of Debentures were directed to be issued, and were issued, " for the principal sum invested " by the Stockholders. The second class of Debentures are provided to be issued when the tolls should attain a certain sum. The amount of each Debenture was not accurately known, and could not be given, but ^he data from which the computation is to be mfide is given. , The time when the Stockholder " paid in " the stock subscrided by hmi, is the commencement and the time when the tolls amount to £45,000 in any one year, is the time for ifisuing the Debentures. The sum to be an amount equal to 6 per cent per annum on the Stockholders' subscriptions so paid in. The Stockholders may not all have " paid in " on the same day, there may have been months and perhaps a year's difference, and the discrimination is made, bv allowing to them respectively 6 percent firom the time when they actually " paid in." When the Act was passed in 1843, the amount had doubled, and W Uie compromise apparently was intended to be made principal, discn* M^ > i "I minatinff only among the Stockholders as to the tinne of eoitipntatlon from their respective payments, Hence, the reading of the Act as to the second class, which gives 6 per cent per annum on tno original principal from tlie payment of such prmoipal to the issuing of the Dcbcntureti, and which are to be lisucd at the end of the year when the tolls reach £45,000 payable in 20 years from their date, carrying 6 per cent interest payable semi-annually. i In examining this Act of Parliament providing for the purchase of and remuneration to the private Stockholders of the Welhind Cuniil, I have not been able to discover ony ambiguity. The question raised is, how long is the 6 per cent to be allowed, for which the Debenture is to be issued ? It seems to be entirely plain, it must be allowed from the day the original Stocit was " paid in " to the end of the year, when the tolls should reach £45,000, and when the Debenture should be dated, and contain the residue of the contract. The time for the beginning is fixed by the words when " paid in " — the end is fixed by the worda " so soon after the tolls amount to, &c." The Governor shall "after receipt of such tolls direct to be issued the " Debentures, &c. " There is no exclusion of a portion of the time "from the paying in " to the issuing of the Debenture. I am of opinion that the direction is imperative that "so soon " os the tolls in ono ypitr rpnoli £i5,000, 6 per rent per annum from a given day shall be charged to the consolidated rcvenne fnnd, and the (iovcmor shall issue iiis Debentures therefore, payable as prescribed by the Statute. S. SHERWOOD. New York, 25th November, 1851. ^ OPINION OF MARSHAL S. BIDWELL, ESQ. I have examined the Statute of Canada, 7 Vic. Cap. 34, with refer- ence to the question to what lime the per ccntage mentioned in the sixth clause is to be computed. I am of opinion that it is to be computed and allowed to the period when the tolls shall amount to £45,000 in one year. I think that this is the fair import of the language which the Legis- lature has used, and that it is not controlled by other provisions of the law, or by the circumstances of the case. The letter, on the contrary, furnish reasons for a construction favorable to the Stockholders. Among these circumstances, the following may be mentioned; most of the Stockholders are foreigners and non-residents, and did not share in the incidental benefits, which men of business and owners of property in the Province, derived from the work ; most of them had paid in their money under an express pledge that the work should not be taken by the Govern- r »>_ 9 mcnt without rcimburaing the Stocklioldera for tho money which they paid, and nn advance of i6 per cent on it, nor unicHH tliey had, on an average, received 12i per cent annually ; the entrepriue was hazardous, and, il' Hucce.<«flful, fairly entitled those engaged in it to profits in propor- tion to the risk run : it wos of public importance and utility, and those by whose means and at whose expense and risk it had been prosectuted so nearly to completion, deserved a libernl and indulgent consideration from the Legislature and (lovernment ; the prospects of a spciedy com- pletion and of ultimate remnnemtion, \v('re, iitilietim<^ w' "ti ilie iiiw was passed, becoming more and mor*' favorable ; the (ioverninent con- sidered it of importance lor public purposes to take the entire control of the work, and by this law und previous legislaticm had assumed the dominion and exclusive control of the work, including the reguluvion of tolls, salaries and expenses, and had virtually annulled the rights of the Stockholders, on terms prescribed by itself, which creates a presumption, (in justice both to the rights of the Stockholders and to the equity and honor of the Government,) that the terms were intended to be so liberal as to preclu W f i - IK- V 1 10 'Dttndee, Holmes, 2 Hag^ Adm. R.lSl. In a cause of collision where payment of a sum for damage, interest and costs reported lo be due had been delayed by the party liable, the o;her party is entitted to interest on the whole sum from fifteen days after the date of such report, and, Stat. 53 Geo. 3, Cap. 159, s. 1, limiting tke liability of owners to the value of the ship, appurtenances and freight applies only to the original claim for damage and extends not to costs and interest. OPINION BY LORD STOWELL. " The justice of this case lies entirely with the Counsel who have " argued on the part of those who have sustained the injury, and who " apply for full restitution. It is objected in the first place that £350 is " stated for interest, and that in the further report, interest is allowed on the whole amount of the fonner report including that item. This, it is argued, is compound interest, — interest upon interest, and ought not to be allowed. To which, it is answered with perfect justice and con- formity to the practice of all courts, tliat where interest is so settled, it shall bear interest thereon, and that the same shall not be deemed a compound interest, charging the party with an unfair pressure in such account. It is agreeable to the practice of merchants, and agreeable to the practice of the Court of Chancery, and has been so held in this Court, where interest is made up, it then becomes principal and bears interest's part of the principal." (This was the last reported decision of Lord Stowell : he had been about 30 years Judge of thfl Higli Court of Admiralty, having been previously a distinguished Judge in the Ecclesiastical Courts. He is considered to have been one of the greatest Jurists of Europe.) u t( CASE SUBMITTED FOR THE OPINION OF THE LAW OFFI- CERS OF THE CROWN IN ENGLAND. About the years 1827, 1828 and 1829, several sums of money were raised in America, Canada and England, amounting together to 'the sun) of £117,800, Canada Currency, towards making a Canal in Canada, from Lake Erie to Lake Ontario, called the Welland Canal. Large sums were also subscribed by the Government of Canada, for the saine ptirpose as public Shareholders in the Company. In the year 1843 more money was required to place the Canal in an efficient state towards which the private Shareholders were unwilling, to make any further contribution. . In that year, therefore, an Act of the Provincial Legislature was passed, intituled, " An Act to repeal <■ certain Act therein mentioned and to make further provision forenabliugthe Provincial Government to pur- ohaae the Stock nel4 by private parties in the Welland Canal." A copy of the Act is sent herewith. By^the 4th clause of that Act, the Govern- ment wae anthorized to issue Provincial Debentures for the sum of £117,800, Canada Currency, la repayment of the Capital subscribed by ) 11 private Shareholders. These Debentures have b^en issued and interest at the rate of £6 per cent per annum in Canada, and £5 per cent in England has been paid upon them from the 1st January, 1843. By clause 6th in the same Act, provision was made for payment to the pri- vate Shareholders of interest upon their Capital as follows : .1 " And be it enacted, that so soon after the completion of the said " Canal as the tolls received thereon for any one year shall amount to the " sum of £45,000, Currency of this Province, there shall be charged upon " the consolidated revenue thereof, an amount equal to £6 per cent per " annum on the private Stock subscribed from the time the same has " been paid in tor the benefit of the private Stockholders aforesaid, or " their representatives." The Tolls reached the required amount of £45,000, in 1851. Government proposed to pay interest on the Capital at 6 per cent up to the Ist January, 1843 only, ai^d the same amounting to £107,343, 4s. Id. has been received by the private Shareholders in . Provincial Government Debentures, bearing interest from 1st January, 1852, but these Debentures were received under protest. The Shareholders therefore contend that they have not received all that is strictly due to them, as either 4hey are entitled to receive an a- mount equal to £6 per cent per annum from the time their Capital was subscribed to the time wlien the tolls amounted to £45,000, or they were entitled to joceive an amount equal to £6 per cent per annum from the time their Capital was subscribed to the Ist January, 1843j-which would not be the case if the interest were not received until 1832. Your opinion is therefoi-e requested on the following points : 1. Whether the letter of the Act entitles the Shareholders to claim interest up to the time when the tolls amounted to £45,000, that is, to January, 1852. S. If not, what is the precise construction to be put upon the words, " an amount equal to 6 per cent per annum on the private Stock sub- scribed from the time the same has been paid in". 3. Do those words imply such a sum as shall being paid now in 1852, be equivalent to an amount of 6 pef cent per annum on the Stock paid in 1843, when the Capital was discharged. OPINION OF SIR F. Th^iSIGER. We are of opinion, that in the absence of any express limitation, of the time up to which the per centage was to run ; the contingency on which the per centage was to become payable, defined also the period up to which it was to be calculated. ^ The construction which places this limit in 1843, has no warrant in the words of the Act ; and it is farther negatived by the probability ( i\ 1 12 that any sum already defined when the clause was framed would either have been stated as a specified amount, or as a per centage to be cal- culated during a specified period. These difficulties vanish, if, adopting the natural construction, the clause is taken to have contingently guar- anteed a sum incapable at the period of complete definition ; and the ac- cumulation of which during such time as the contingency remained unfulfilled, secured the Shareholder against loss from delays in the carry- ing out of the work. For it is evident that while the ultimate comple- tion of the undertaking was rendered tolerably certain by the amount of public money embarked in it, yet delays inevitable or otherwise, might have been interposed after it came under Government manage- ment, which, but for some such proviso, would have impaired inde- finitely the value of a compensation, limited by a definite period ; though payable at an indefinite one. On these grounds wo are of opinion, that the Shareholders are entitled to an amount equal to 6 per cent per annum on the private Stock subscribed from the time it was paid io, up to the 3 1st December, A. D. 1851. FRED. THESIGER. '; H. J. BUSHBY. 24tL August, 1852. ^ (Copy.) The Hon. Wm. Hamilton Merritt. London, 15th October, 1852. Dear Sir, — We have duly received your letter of the 13th ultimo, and have now much pleasure in forwarding the inclosed copy of ah opinion in which the Solicitor General, Sir Fitzroy Kelly, has expressed himself in favor of the claims of the Welland Canal Shareholders. We have not yet been able to procure the opinion of Sir Alex. Cockburn, which we will take the earliest opportunity of transmitting to you when obtained. (Signed.) We are Dear Sir, Your very obedient Servents, BOSANQUET, FRANKS & Co. OPINION OF SIR Fii'RROY KELLY & H. J. BUSHBY, ESQ. We are of opinion that the Stockholders are entitled by the Act to an amount equal to six per cent per annum on the capital from the time it was subscribed up to the period of the tolls amounting to £45,000. (Signed,) FITZROY KELLY. '^ . H.J. BUSHBY. m The Hon. Wm. Hamilton Merritt. London, 5th November, 1852. Dear Sir, — Referring to our letter of the 16th ultimo, of which the annexed is a duplicate, we hn - now the pleasure to enclose a Coyy of the opinion of Sir Alex. V ,ockburn, which is strongly in favor of the Claims of the WellaH' Canal Shareholders. We also forward herewith a Statement of the Case on which the above opinion, together with those of the Attorney, and Solicitor General already transmitted, were delivered. We remain, Dear Sir, Your faithful and obedient Servants, BOSANQUET, FRANKS & Co. OPINION OF SIR ALEXANDER E. COCKBURN. [Copy.] We are of opinion that the Act entitles the Shareholders to claim 6 per cent on the Capital subscribed, from the time when it was paid in, not merely up to the 1st Jaiiuary, 1843, but to the period when the tolls amounted to £46,000. ^^«„t„t«^t (Signed,) A. E. COCKBURN. H. J. BUSHBY.