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foundation of something to rest their settlement upon. recital is in this form: "That by indented articles of agreement made on the 19th of February, 1773, between the said Thomas Sadlier, party to these presents, of the one part, and the said William Woodward the elder and the said Rebecca, by the name of Rebecca Woodward, eldest daughter of the said William Woodward, of the other part: Whereas a marriage is intended to be had and solemnized between the said Thomas Sadlier and said Rebecca now his wife, he, the said Thomas Sadlier, in consideration of the sum of 500l. sterling by the said William Woodward the elder, covenanted to be paid to said Thomas Sadlier, and for other the considerations in said articles mentioned, doth covenant and agree with the said William Woodward the elder, his heirs, executors, and administrators, that he, the said Thomas Sadlier, will settle and convey the several lands therein mentioned and expressed, as near as may be, in reference to the parties concerned in such settlement, who shall be living at the time of making thereof." I do not perceive from the evidence that what *467 is there mentioned as expressed and contained in the deed of 1773, is in the memorial of it on your Lordships' table; that memorial is strictly confined to what I have told you, namely, providing a jointure for the intended wife. But then it is said that as the lease in 1782, though prior to the settlement of 1784, was subsequent to the settlement of 1773, that settlement bound. everybody claiming under the settlement of 1784. Well, that is the question; but if you were to follow this up, which it is really a waste of time to do, you would find they have continued executing settlements and renewing leases from time to time down to 1814, always in the terms of, and almost as it were, in connection with the settlement, when it is utterly impossible that the persons granting those leases should not have been aware of the nature of the acts they were doing; and in every one of them it is remarkable that every man who grants a lease assumes to have an inheritance to enable him to do so, and therefore a more scandalous fraud could not have been committed than would have been committed upon those lessees, if the title could be impeached in the way now suggested.

The settlement of 1784 does not expressly except all leases, but it excepts, in terms, all leases which were bona fide leases of any part of the property. But the man who made that settlement

knew perfectly, of course, that he had two years before granted the lease, after a litigation; clearly, therefore, there was no surprise upon him. It was after a litigation of several years; it was the termination of the litigation, the completion of it, and was in lieu of a decree under it. Indeed he became his own Chancellor, and finding that he had no merits, he submitted to that which was clearly against him, and having executed a lease of the property, he takes care, upon his marriage, not to leave himself open * 468 to any demand for damages by those who might claim under him, his children, or grandchildren and other parties and his intended wife, because he says, "I convey this estate to you subject to any leases bona fide made." This lease was beyond all question, bonâ fide, and therefore he conveyed the estate expressly subject to the lease of 1782.

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My Lords, the only other question, if question it can be called, is whether, if you are to go back and rely upon the lease of 1746, there was or was not a covenant for perpetual renewal? If there was not, you must reject these words "for ever." They come in awkwardly enough, I admit; but you must reject those strong words if you say there is not a covenant for perpetual renewal. I asked in vain of the learned counsel, who is very competent to give an answer when any can be given, what sense was to be attributed to the words "for ever," if that was not their meaning? He could give no other. Can you reject them? Can your Lordships be called upon as a Court of Equity to reject those large words, expressive beyond all others that the English language contains? There is no other phrase so fitted to express what the parties intended, that this lease is to be renewed for ever. The fines are to be paid for ever; supposing you construe it in that way that the fines are to be paid for ever, that must be of course in consideration of — what? why of renewals for ever; because fines are only to be paid upon the renewals. If, therefore, you consider that those fines were expressly stated as a perpetual payment, that of itself implies a perpetual renewal, upon which alone those fines could be paid. A case was cited, upon which I will not detain your Lordships for a moment, viz. Baynham v. Guy's Hospital.1 With469 out saying whether that case was rightly or * wrongly decided, I do not think it has any bearing upon the present. The proviso in that case showed that the parties did not intend to 1 3 Ves. 295.

go beyond the lives. That case is one confined to lives, and has no bearing upon this which is now before your Lordships, because there the question simply was whether or not, upon the due construction of the covenant, there was any thing more than a covenant for the further assurance of the particular lease which had been granted.

My Lords, I have occupied, I am afraid, more time than the case deserves, but upon the whole I never entertained a clearer opinion in my life than I do upon this case; and I have the satisfaction of agreeing with my noble and learned friend, in coming to the conclusion that the justice of the case is in all respects met by the construction which has been put upon it by the Court below. With regard to costs, there cannot be any sort of doubt that the question raised upon this appeal ought never to have come to your Lordships' house. I therefore entirely agree with my noble and learned friend, that the judgment of the Court below should be affirmed, and I recommend your Lordships to affirm it with costs.

LORD BROUGHAM. In consequence of unavoidable absence I did not hear this case argued, and therefore I only rise to say that I totally differ from my noble and learned friend in one respect, namely, in thinking that he has occupied one moment of your Lordships' time too long, especially when we recollect that only one side has been heard at your Lordships' bar. Under such circumstances, it becomes absolutely necessary that the judgment of this House should be given upon the fullest consideration, for the assurance of the parties that your Lordships, in * 470 considering the case and in affirming the judgment below without hearing the respondent, have carefully applied your minds to the whole argument.

Decree affirmed, with costs.

It was afterwards ordered, "that the appeal be dismissed, and the decretal order of the 15th November, 1847, and the decree of the 5th February, 1851, be affirmed with costs."

Lords' Journals, July 5, 1853.

[359]

WARDS,

*471 *THE QUEEN v. SOUTHEASTERN RAILWAY CO.

1853. June 29; July 4, 14.

THE QUEEN, on the prosecution of C. ED

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The DIRECTORS, &c. of the SOUTHEASTERN

Plaintiff in error.

Defendants in error.

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Costs.

Under the 8th & 9th Vict. c. 20, § 46, a railway company has the option, when its line of railway crosses a turnpike road or a public highway (except when otherwise provided by the special Act), either to carry the road over the railway or the railway over the road. A mandamus to command the company to do one of these two things is therefore defective unless it shows, on the face of it, circumstances which establish the impossibility of the company exercising this option.

Where such a mandamus had been issued, and the return had merely traversed

that the road was a public road, and the issue thus raised had been found against the company, and a peremptory mandamus had been awarded:Held, that on a writ of error, the Court of Error being satisfied that the mandamus itself ought not to have issued, had properly reversed the whole judgment. By the Judges: Upon a judgment awarding a peremptory mandamus, the costs are not those awarded at the discretion of the Court, under section 6 of 1 Wm. 4, c. 21, but are the general costs under section 4 of that statute.

IN 1849, a writ of mandamus was issued to the defendants, which recited that a railway made by the defendants "crossed, not on a level, a certain public highway, situate and being in the parish of Plumstead, in the county of Kent, called the Plumstead Villas Road, by means of a certain trench or cutting 20 feet deep and 65 feet wide," and that "the permanent way thereof is laid down therein, and the said public way is thereby cut through and destroyed, and rendered wholly impassable for passengers and

carriages." The mandamus then recited that reasonable * 472 time had been given to the defendants to enable them to carry the road over the railway, but that they had refused. to do so, and it commanded them "to cause the said public highway to be carried over the said railway by means of a bridge, in conformity with the regulations" contained in 8 & 9 Vict. c. 20,

the "Railway Clauses' Consolidation Act, 1845," the directions in which were then in detail set out. The defendants made a return," that the said way or road in the said writ mentioned, was not a public highway as in the said writ is in that behalf alleged." Issue was taken on this traverse. The case was tried at the summer assizes at Maidstone, in 1850, before the Lord Chief Baron, when a verdict was returned for the Crown, finding that the Plumstead Villas Road was a public highway. A rule for a new trial was applied for and refused, and judgment was signed in November, 1850. The defendants brought a writ of error in the Exchequer Chamber, and the errors assigned were, that it was not stated that the alleged highway was such at the time of the passing of the Company's special Act, that no sufficient damage was alleged, and that by the writ the defendants had not the option of carrying the road over the railway or of carrying the railway over the road, according to the statute (8 & 9 Vict. c. 20), but were deprived of that option. The Court of Exchequer reversed the judgment of the Queen's Bench,2 and the present writ of error was brought on that reversal.

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The Judges were summoned, and Mr. Baron Parke, Mr. Baron Alderson, Mr. Justice Coleridge, Mr. Justice Wightman, Mr. Justice Cresswell, Mr. Justice Erle, Mr. Justice *473 Talfourd, Mr. Baron Platt, Mr. Justice Williams, Mr. Baron Martin, and Mr. Justice Crompton attended.

Mr. Bramwell and Mr. Needham (Mr. Raymond was with them) for the plaintiff in error. - The point now to be considered is, whether, by the effect of the "Railway Clauses' Consolidation Act, 1845," the defendants had an option to carry the bridge over or under the line of railway. It may be admitted that, as a general rule, the 46th section of the 8 & 9 Vict. c. 20, gives them an option; but that general rule is subject to exceptions arising from circumstances. If circumstances alone could decide the question, the depth of the cutting, as set forth on the face of the proceedings, shows that it is absurd to suppose that the defendants can be at 18 & 9 Vict. c. 20, § 46. "If the line of the railway cross any turnpike road or public highway, then (except where otherwise provided by the special Act) either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge of the height and width and with the ascent or descent by this or the special Act in that behalf provided."

220 Law J., N. S., Q. B. 428.

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