should continue to be used for the benefit, &c., of the poor of the parish, and not otherwise. Upon making this discovery, the plaintiff claimed to be relieved from his purchase, and to have the purchase-money repaid, on the ground that the vendors, with this deed in their possession, had, by misrepresentation, induced the plaintiff to purchase as freehold what was only copyhold, and thus to accept a title with a serious defect materially detracting from the value of the property, and not a subject for compensation within the conditions of sale.

Evidence was adduced by the defendants for the purpose of showing that the deed of 1717 related not to the workhouse purchased by the plaintiff, but to four almshouses occupied by the poor of the parish of Wednesbury.

Willcock, Q.C., and Druce, for the plaintiff, contended that the plaintiff had been induced to complete the purchase by the misrepresentation as to the nature of the deed of 1717, contained in the letter of the vendors' solicitor, and that the defendants, having this deed in their possession, were not justified in advertising the property for sale as freehold.

Daniel, Q.C., and De Gex, for the defendants, contended upon the evidence that the plaintiff had not proved the identity of the workhouse with the property comprised in the deed of 1717; and that, at any rate, after the lapse of time and the absence of any proved acts of ownership by the lord referable to copyhold tenure, an enfranchisement must now be presumed. They also contended that there had not been any untrue assertion by the vendors as to the property material in its nature; and that any such assertion, if untrue, was not made without a belief, upon fair and reasonable grounds, in its truth. At all events, no such fraud had been shown as to justify the Court in setting aside the contract when completed.

The following cases were cited: Edwards v. McLeay (1), Roe v. Ireland (2), Dobell v. Stevens (3), Jennings v. Broughton (4), Legge v. Croker (5), Wilde v. Gibson (6), Pasley v. Freeman (7), Warren v. Richardson (8).

WOOD, V.-C., without calling for a reply, said that the purchaser was entitled to be released from this contract. Much stress had very properly been laid upon the letter of the vendors' solicitor. He was perfectly willing to accept it as their honest conviction that after 140 years they were justified in treating

(1) 14 R. R. 261 (G. Coop. 308).
(2) 10 R. R. 504 (11 East, 280).
(3) 27 R. R. 441 (3 B. & C. 623).
(4) 99 R. R. 127 (5 D. M. & G. 126).

(5) 12 R. R. 49 (1 Ball & B. 506).
(6) 73 R. R. 191 (1 H. L. C. 605).
(7) 1 R. R. 634 (3 T. R. 51).
(8) 34 R. R. 251 (Younge, 1).

TURNER

v.

WEST BROMWICH

UNION.

V.

ᎳᎬᎦᎢ BROMWICH

UNION.

TURNER this property as freehold. Still, even so, the vendors having in their possession this old deed which, to say the least, raised a considerable doubt as to whether this property was not copyhold, he thought the purchaser was justified in saying that they were not justified in holding out the property to the public as freehold. As against them it must be taken that their solicitor ought to have known that there was a doubt. That any enfranchisement of this property, which was clearly shown to have been copyhold in 1717, was to be presumed from the mere negligence of the lords of the manor in exacting the small acknowledgment (10s. in every seven years) would be a point very doubtful in law. All that could be relied upon during all this period was that the lord of the manor had been excessively negligent in receiving the 10s. acknowledgment. The lord of the manor

[ *156 ]

might consider, now that the property was parted with, that the time had arrived for asserting his rights, as to which no adverse act had been made out, while it was not a case to which any Statute of Limitations applied. Roe v. Ireland (to which his Honour referred) was a very strong case, but differed from the present. Here there was no act *shown adverse, to the rights of the lord. A serious question would arise whether, finding that the charitable use in respect of which the rents and fines were commuted had expired, the lord would not be entitled to reassert his rights. How far then was the vendor, after having had his attention called to this document which created at least considerable doubt, and resolving the doubt in his own mind, justified in representing the property as freehold? This might be a question of great nicety, but it was very much to be regretted that these public officers should advertise the property as freehold in the existence of such a doubt. In framing all those very stringent conditions of sale they might at least have stated that the property must be taken to be freehold, though he was far from saying that such a statement would have been sufficient. But he was not bound to rest the case on misdescription merely, for the letter of the solicitor materially altered the case. The conditions of sale stated the title as possessory, and that no documents would be produced except at the purchaser's expense and that the intention of investigating the title must. be signified within seven days. The purchaser, however, at any time before completion was entitled to refuse payment of the purchase-money on finding a defect in the title: Warren v. Richardson. Having the right, therefore, to find out any defect in the title, he ought at least to see the documents. But the matter did not rest there; for the letter of the solicitor, in reply to an inquiry as to documents, threw the purchaser off his

guard as to any question of the property not being freehold.
There was a distinct statement that the deed "merely shows
that the property was purchased for a workhouse, and no im-
portance is attached to it." A distinct and clear statement of
what the deed really was would have led the purchaser, upon its
production, to decline paying his money until the doubt was
cleared up.
When told that the document has nothing to do
with the matter, and that he must pay for any other documents,
he was naturally thrown off his guard. After that representation
he could not impute negligence to the purchaser. If the vendors
took upon themselves to make any representation as to the
character of the property, they were bound by such representa-
tion, and the purchaser could hold them to it, especially when
he had been thereby prevented from taking other steps for
asserting his right to see this document. Upon this ground
the purchaser was entitled to be relieved from his contract,
even treating the conveyance as actually executed; and the
case was entirely within the principle of Edwards v. McLeay.
Without wishing to impute anything more than considerable
negligence to the solicitor, it was much to be regretted that
after he had seen the deed of 1717 he should have thought fit
to send such a letter, containing as it did a statement that the
deed was of no importance. His Honour then proceeded to
comment upon the evidence adduced by the defendants for the
purpose of showing that the deed did not relate to the pro-
perty in question, but to some old almshouses, so as to deprive
the plaintiff of any title to relief, and said that the onus was
entirely thrown upon the vendors of showing that what was
once copyhold is now freehold. On the present state of the
evidence he was clearly of opinion that the deed of 1717 did
relate to the workhouse, and not to the almshouses.
The pur-
chaser could not be fixed with a title when there was a grave
and serious doubt upon it; but here the matter was beyond
doubt, and having been deprived of the means of finding out
the doubt as to the tenure by the misrepresentation of the deed
made to him he was entitled to have the contract rescinded,
and the purchase-money paid by him returned with interest
and costs.

1

59

R.R.-VOL. CXXII.

1860. Dec. 11, 12.

1861. Jun. 21, 22, 28.

1860. Dec. 20

STUART
V.-C.

[ 189 ]

BAKER v. PECK.

(9 W. R. 186-189; reversed on appeal, 9 W. R. 472; S. C. 8 Jur. N. S. 45.)

In 1815 C. bequeathed a legacy of 4001. to E. for life, with remainder to her children, and devised his realty to G. and P., directing them, should his personalty prove insufficient for payment of debts and legacies, to make up the deficiency, by sale or mortgage, of such realty. By a codicil he gave 2001. to E.'s children, after her death. G., a man of weak mind, alone proved the will. In 1816 G. and P. conveyed the realty to P.'s brothers for 9907., but P. remained in possession till 1822, when he purchased the same property for 1.0007. On his death in 1848 his devisees sold it for 1,4401. C.'s personalty had proved insufficient, and 3657. only had been set apart to meet the legacies. E. received interest on the 3657. until her death in 1855. In 1859 her children filed their bill to have P.'s estate charged with the deficiency. The COURT decided in their favour: Held on appeal that the evidence showed that the sale was made boni fide and for full value and the bill was dismissed.

[This case is also reported on appeal in 8 Jur. N. S. 45, and the question of retaining any report of the case is reserved until that report is reached.--O. A. S.]

THE ATTORNEY-GENERAL . THE DORSET
RAILWAY COMPANY.

(9 W. R. 189-190; S. C. 3 L. T. N. S. 608.)

By the plans and sections deposited by a Railway Company it ap peared that they intended to carry their railway across a public road by means of a skew bridge. Instead of doing so they diverted the road for some distance, and then restored it to its former course by a bridge which crossed the railway at right angles, thus causing two abrupt and dangerous curves. A dispute having arisen between the trustees of the road and the Company, the COURT granted an injunc tion until further order, restraining the Company from proceeding with the works, and directed that in the meanwhile a competent person should inquire, and report whether any deviation was necessary, and if so, how it could most conveniently be effected.

THIS was a motion for an injunction to restrain the Dorset Central Railway Company from diverting a public road. The information and bill was at the relation and suit of Henry Hobhouse, on behalf of the trustees for making, amending, &c., certain roads in and near Bruton, Somersetshire, and other roads in Somersetshire and Wiltshire.

By the "Dorset Central Railway Act, 1856," the defendants were empowered to make a railway crossing at an oblique angle the turnpike road leading from Bruton to Sherborne, Dorsetshire, which is one of the roads over which the said trustees have jurisdiction by virtue of an Act of Parliament passed in 1831. The information and bill alleged that, according to the plans and sections deposited by the defendants for the purposes of their Act, no diversion of the turnpike road was contemplated, but the railway was represented as crossing the road by a skew bridge which would not impede the traffic, inasmuch as the road would not be diverted, but would run in a straight line for several hundred yards on either side of the bridge;

that the defendants did not under their Act or otherwise receive any power to effect any permanent diversion of the said road or in any way permanently to interfere with it except by building a bridge across it, sixteen feet in height, and thirty feet in span; but that, in November, 1850, the defendants diverted the said road from its old course, by a sharp angle or corner, carried it into another road, and then by means of a bridge which crossed the railway at right angles, carried it back again into its original course at another point, thus causing two dangerous and inconvenient curves; in consequence of which persons driving vehicles from opposite directions towards the bridge must skirt a high embankment, and cannot be seen by each other until almost in close contact, the danger and inconvenience being aggravated by the circumstance that the road where the diversion commences is on a declivity and at the foot of a steep hill. A correspondence took place on the subject of this diversion, and the engineer of the trustees met the agent of the Company for the purpose of coming to some arrangement, if possible; however, no such arrangement was come to, and the plaintiff alleged that the defendants refused to restore the old road, or even to make such alterations in the new road as would render it as convenient to the public as the old was, and that they intended to refer the question to the Board of Trade, which Board they pretended could authorise them to make the diversion.

The Company's engineer by his affidavit stated that the deviation did not appear on the plans and sections, but he denied that the section indicated that the bridge by which it was proposed to carry the railway over the turnpike road should be a skew bridge, and affirmed that to the best of his belief the letter of the conditions shown on the Parliamentary plan and section had been carried out by the erection of a square bridge having a span of thirty feet, and a height of sixteen feet; and further, that in his opinion as an engineer, the curves of the road as altered were not dangerous and inconvenient, and he believed that in some respects they were an absolute improvement over what would have been the case had the original road remained unaltered, even if the trustees could have compelled the Company to build a skew bridge, having a square span of thirty feet, over the unaltered road; for in the first place the diversion was made much wider than the original road; and in the second place, a public road which, if the works had been carried out duly according to the Parliamentary plans and sections, would have run into the turnpike road at a very acute angle, and in such a manner as to cause inconvenience,

A.-G.

1.

THE DORSET RAILWAY Co.