1852. GAGE v. THE RAILWAY Co. Lord CAMPBELL, C. J., now delivered the judgment of the Court. We are of opinion that the defendants are entitled to our judgment. Taking the deed as set out on oyer, we think there is no breach well assigned upon it. NEWMARKET The covenant there, without saying anything, as the declaration does, about "reasonable time," is merely in these words: "That in the event of the bill herein before mentioned being passed in the present session of Parliament, the said Company shall, before they shall enter upon any part of the lands of the said Sir Thomas Rokewode Gage, in the said county of Suffolk, pay to the said Sir Thomas Rokewode Gage, his heirs or assigns, the sum of 4900l. purchase money, for any portion of his lands, not exceeding forty-three acres, which the said Company may, under the powers of their Act, require and take for the purposes of their undertaking; that, in addition to purchase money as aforesaid, the said Company shall pay to the said Sir Thomas Rokewode Gage, his heirs and assigns, before they shall enter upon any part of the said lands, the sum of 7100%, as a landlord's compensation for the damage arising to his estate by the severance thereof, in respect of the lands, not exceeding forty-three acres, to be taken by them." The question we have to determine is, whether, the Company never having entered upon any part of the plaintiff's lands, he is now entitled to sue for these two sums, or either of them. The 49007. is declared to be the purchase money for the land to be required and taken, and the only time of payment mentioned is before the Company enter upon the land; therefore, if no land is required or taken, and the Company never enter on any part of the land, there seems great difficulty in saying that there has been a breach of covenant in not paying the money. So, the 7100% is declared to be a compensation for severance of the land taken from the rest of the plaintiff's land, and the same time of payment is defined. But there has been 1852. GAGE v. THE RAILWAY Co. no severance to be compensated, and the time of payment has not arrived. The deed does not bargain for a sum of money to be paid absolutely by the Company to the plainNEWMARKET tiff as a consideration for his withdrawing his opposition to the bill, but provides a peculiar mode of estimating the value of the land to be taken, and of the compensation to be made for severance and damage, instead of the modes pointed out by the general Acts upon this subject. We therefore do not think that the Company can be considered as having absolutely covenanted to pay 12,000l. to the plaintiff in a reasonable time after the passing of the Act. If this deed could bear such a construction, we should have thought it so far ultra vires and void. Here the Railway Company are the covenantors, and if the present action lies, the capital paid up by the shareholders must be answerable for the damages to be recovered. We consider that this would be a misappropriation of the funds of the Company, which the directors could not lawfully make. All the cases relied upon by the plaintiff's counsel are clearly distinguishable from the present, except Webb v. The Direct London and Portsmouth Railway Company (a), before Sir G. Turner, V. C. Notwithstanding our high respect for that learned Judge, we cannot concur in the reasons for his decision; and although it has not been expressly overturned, its authority was greatly shaken when it came before the Lords Justices of Appeal. We do not feel it necessary to give any opinion upon the case of Bland v. Crowley (b), in which the learned Judges of the Court of Exchequer were divided, as the deed there discussed varies materially from the present. Nor would it be proper to give any opinion upon Lord J. Stuart v. The London and North Western Railway Company (c), as we learn, that, when it (a) Ante, p. 9; 9 Hare, 129. (b) Ante, Vol. 6, p. 756; 6 Exch. 522. (c) Ante, p. 25. came before the Lords Justices of Appeal, it was sent by them to be decided in a Court of law. We are happy to think, that the question in this case, being on the record, may be brought before a Court of Error. In the meanwhile, there must be judgment for the defendants. Judgment for defendants. 1852. GAGE V. RAILWAY Co. Hilary Term, 1852. THE MARQUIS OF SALISBURY V. THE GREAT NORTHERN RAIL- By an order of Knight Bruce, V.C., the following case was stated for the opinion of this Court:- The plaintiff for many years last passed has been and still is seised for the term of his life of certain lands situate in the parish of Hatfield, in the county of Herts; part of which consists of 1A. 3R. 1P., hereinafter particularly described, subject only to a tenancy from year to year by the tenants or farmers of the plaintiff; and the plaintiff never had any greater estate than an estate for life in the same hereditaments. By "The Great Northern Railway Act, 1846," certain persons therein named, and their successors, were incorporated by the name of "The Great Northern Railway Company" (who were the defendants above mentioned), for the purposes in this Act mentioned, which Act received the Royal Assent on the 26th of June, 1846; and the Lands Clauses Consolidation Act, 1845, and the Railways Clauses Consolidation Act, 1845, are in. corporated therewith. By the 27th section of the said Great Northern Railway Act, 1846, it was enacted, that the powers of the said Company for the compulsory purchase of lands for the purposes of the said Act should not be ex the compulsory purchase of land within the 123rd section of the Lands Clauses Conso lidation Act; and if, within the prescribed tice be given, the steps neces period, such no sary to complete may be taken af An entry not on land is any of the pow- cise of a power chase into effect, 1852. ercised after the expiration of five years from the passing THE MARQUIS of that Act; and no other provision is made in the same OF SALISBURY Act limiting the time for the compulsory taking or purchase of lands. The defendants have not obtained an extension of time for the purchase by them of the said la. 3R. 1P. of land or any part thereof, pursuant to the statute 11 & 12 Vict. c. 3. THE GREAT RAILWAY CO. On the 21st of May, 1851, the defendants gave to the plaintiff a notice in writing of that date, whereby they required to purchase and take, for the purpose of the said Railway, the lands described in the schedule and plan thereunto annexed; and that the plaintiff should, before the expiration of twenty-one days, deliver to Messrs. Baxter, Rose, and Norton, a statement in writing (among other things) of the amount of the sum of money which the plaintiff was willing to receive in satisfaction and compensation for the value of such lands; which schedule described the said land (being that part of the plaintiff's lands herein before mentioned) as all those pieces or parcels of land, hereditaments, and premises, delineated on the plan thereto annexed and therein coloured red, as the same were then or were about to be staked or set or otherwise marked out for the purpose of the before-mentioned Railway, containing together by admeasurement 1A. 3R. 1P., be the same more or less, situate in the parish of Hatfield, in the county of Hertford, and then or late in the occupation of &c.; and which hereditaments and premises above described are admitted to be part and parcel of certain lands, tenements, and hereditaments, delineated in the parliamentary plan and described in the book of reference thereto, deposited by the promoters of the London and York Railway Company, afterwards incorporated under the title of "The Great Northern Railway Company," with the Clerk of the Peace for the county of Hertford, and in such plan and book of reference distinguished by the numbers 136 and 143, in the said parish, together with the appur v. THE GREAT RAILWAY Co. NORTHERN tenances therein mentioned. On the 26th of May, 1851, 1852. the plaintiff's solicitor, by letter to the said Messrs. Bax- THE MARQUIS ter, Rose, and Norton, who are the solicitors of the OF SALISBURY said Company, offered to accept 600l. as the price for the lands, the subject of the said notice, which offer the said Messrs. Baxter, Rose, and Norton, on the part of the defendants, declined, and thereupon the defendants proceeded to adopt measures for obtaining possession of the said lands, pursuant to the 84th and 85th sections of the Lands Clauses Consolidation Act, 1845; and, accordingly, on the 18th of June, 1851, they applied to two justices to appoint a surveyor in the manner prescribed by the said Act, to determine the value of the said piece of land; and the said justices appointed a surveyor, who subsequently valued the said land at 1587.; and on the 23rd of the same month the Company deposited the sum of 158. in the Bank of England, in the name and with the privity of the Accountant-General of the Court of Chancery in England, to the credit of the plaintiff, and the same sum still remains so deposited; and on the 24th of the same month the defendants delivered to the plaintiff a bond, in the form and manner prescribed by the 85th section of the same Act. The defendants have taken no other measures towards the purchase of the land, save as herein stated; and they took no measures for obtaining possession of the land within five years from the passing of the special Act. On the 21st of May, 1851, the defendants served a notice in writing of that date on F. Farr and J. Farr, the tenants or occupiers of the plaintiff's said land, who hold the same as yearly tenants to the plaintiff, similar to the aforesaid notice served on the plaintiff; and on the 18th of June, 1851, the defendants and the said F. Farr and J. Farr, disagreeing on the amount of compensation to be paid to them as such tenants as aforesaid, the defendants caused the said F. Farr and J. Farr to be summoned to appear before two justices |