1851. RASHLEIGH v. THE SOUTH EASTERN RAILWAY CO. for years covenants to repair, &c., provided always, and it is agreed, that the lessor shall find great timber, &c., this makes a covenant on the part of the lessor to find great timber, by the word agreed; and it shall not be a qualification of the covenant of the lessee." To constitute a covenant, however, the words must be such as to create a contract of some sort between the parties. The case which approaches the nearest to this probably is that put in Com. Dig. Covenant (A. 2.), where it is said, that "any words in a deed, which shew an agreement to do a thing, make a covenant; as, if it be agreed, by articles between A. and B., that stock shall be in the hands of B. until a jointure be made, B. solvendo proinde the interest to A., covenant lies against B. for the interest:" for which passage Comyns refers to Rolle Abr. Covenant (C), pl. 7. So, in Hollis v. Carr (a), it was held, that articles of agreement reciting an intended marriage, covenanting to settle a jointure, in consideration of a marriage portion, and concluding thus,-" and it is hereby agreed that a fine shall be levied, to secure the payment of the said portion," amount to a covenant to levy the fine. The defendants were empowered by the act of parliament to take certain land for the formation. of the railway and they covenanted with the plaintiffs to do certain things,-amongst others, to build a bridge for the accommodation of the plaintiffs, their tenants and servants, if they should find it necessary to divert the stream of the river Beult. But there is no covenant, either express or implied, that the stream shall be diverted; consequently, the covenants to build the bridge, and to do the other acts which were contingent upon the diversion of the stream, become inoperative. Ogle, contrà. The defendants have clearly incurred the legal liability stated in the declaration. The deed (a) 2 Mod. 86. 1851. RASHLEIGH v. THE SOUTH amounts to a covenant on their part that they will do the acts the omission to do which is charged against them. The deed shews that it was the intention of the parties that the course of the Beult should be diverted; and this was for the benefit of the defendants. [Maule, J. RAILWAY CO. Which distinguishes this from the case of Hollis v. Carr; for, there, the fine was to be levied for the benefit of the conusee, the person to whom the land was to be conveyed. Suppose, here, the company do not wish to divert the stream at all: all that was meant to be done by that covenant, is effected.] There is a clear covenant that the company will divert the stream and build the bridge. In Rigby v. The Great Western Railway Company (a), in covenant, the declaration alleged that the defendants, The Great Western Railway Company, demised to the plaintiffs certain refreshment-rooms at Swindon for ninety-nine years, at the annual rent of 1d.; that the plaintiffs covenanted (inter alia) to keep the premises in repair, and not to carry on there any other business than that of the refreshment-rooms; and that the defendants covenanted with the plaintiffs, that, in case the Swindon station should be disused as the regular and general place of stoppage for refreshment of passengers, they would purchase the buildings of the plaintiffs, on the terms therein mentioned; that it was by the said indenture declared to be the intention of the defendants, and the understanding of the plaintiffs, that, in consequence of the outlay to be incurred by the plaintiffs in erecting the refreshment-rooms, the defendants should give every facility to the plaintiffs for enabling them to obtain an adequate return by the profits of the rooms; and that all trains carrying passengers, not goods trains or trains to be sent express or for special purposes, which should pass the Swindon station, should, save in case of emergency or unusual delay arising from accident, stop (a) 14 M. & W. 811. 1851. there for refreshment of passengers for a reasonable RASHLEIGH period of about ten minutes; and that the defendants บ. THE SOUTH - covenanted with the plaintiffs not to do any act which should have an effect contrary to the above intention. RAILWAY CO. The breach alleged, was, that the defendants, whilst the Swindon station was used as the regular and general place of stoppage for the refreshment of passengers, did divers acts which had an effect and were contrary to the intention of the defendants in the said indenture, that is to say, they caused divers trains containing passengers, not being trains sent express, &c., to pass the Swindon station without stopping there for refreshment of the passengers for a reasonable period of ten minutes; and the defendants caused several trains to stop, and the same did stop, at Swindon, for a short and unreasonable time, to wit, for one minute, and no more, the said period of time not being sufficient to enable the said passengers to obtain refreshment. The defendants set out the deed on oyer, which corresponded with the statement of it in the declaration, except that the terms of the covenant declared on were, that the defendants engaged not to do any act which should have an effect contrary to the above intention. It was held, on demurrer, that this amounted to a covenant on the part of the company not to do any act to prevent the trains from stopping at Swindon, so long as it was used as the regular refreshment station; and that a good breach of that covenant was alleged in the declaration. Parke, B., there says: "The deed, no doubt, is inartificially drawn. It is declared to be the intention of the defendants, and the understanding of the plaintiffs, that in consequence of the outlay to be incurred by them in erecting the refreshment-rooms at Swindon, &c., the defendants should give every facility to the plaintiffs for enabling them to obtain an adequate return, by means of the rents and profits to be derived from the said refreshment-rooms; and that all trains carrying passengers, not being goods trains or trains to be sent express or for special purposes, and except trains not under the control of the defendants, which should pass the Swindon station, either up or down, should, save in the case of emergency or unusual delay arising from accidents, stop there for refreshment of passengers for a reasonable period of about ten minutes.' If there had been no other words than these, it might have been doubtful whether this was anything more than a declaration of intention on the part of the company that certain things should be done; although, in some cases, a declaration of intention is quite enough to create a covenant: there are cases in the books, of a declaration of an intention to levy a fine, which is said to amount to a covenant to levy a fine. But this particular part of the indenture does not stop here; there is an express engagement on the part of the company to do something; they engage' (which has the same force as the word 'covenant') not to do anything which shall have an effect contrary to the above intention;' that is, they are not to do any thing which shall have the effect. of causing the trains carrying passengers not to stop at Swindon for a reasonable period for refreshment." [Maule, J. There could not be much difficulty in deciding that "engage" means the same thing as covenant." But I find no such word here.] The defendants impliedly covenant,-taking the whole deed together,to make a new cut, and to divert the stream of the river Beult; and they expressly covenant to erect a bridge over the new cut, to perfect the banks thereof, to reconvey to the plaintiff George Rashleigh the slip of land forming the new course of the river, and to level and fill up the existing course. Channell, Serjt., was heard in reply. 66 Cur, adv. vult. 1851. RASHLEIGH v. THE SOUTH RAILWAY Co. 1851. RASHLEIGH V. THE SOUTH EASTERN RAILWAY CO. MAULE, J., now delivered the judgment of the court. This was an action of covenant on an indenture of the 2nd of March, 1841, between the plaintiffs and the defendants. The declaration recited a deed of conveyance of the same date, whereby two pieces of land were conveyed to the defendants, subject to the performance by the defendants of certain agreements therein recited, and which are to the effect of the covenants contained in the indenture afterwards set out on oyer by the defendants. In this deed of conveyance, the piece of land principally in question is described as "a slip of land then being intended to be formed into a new course for the river Beult." The declaration then made profert of the deed of covenant declared on, and stated that the defendants thereby covenanted with the plaintiffs, that they, the defendants, should and would, within a reasonable time, "at their own costs and expense, make and cut the said intended new course for the said river Beult, and also, within such like reasonable time as aforesaid, divert the stream of the said river Beult into the said intended new course for the same." The declaration went on to state a covenant to make a bridge over the intended new cut, for the use of the plaintiff, within three calendar months after the permanent rails of the said intended railway should have been laid down; and also a covenant to make good the banks of the new cut; and, after the same should have been so made good, and the railway completed, to re-convey to the plaintiff George Rashleigh the slip of land which should form the new course of the river Beult; and also to fill up and level the then existing course of the river Beult, so far as the same should have been diverted. The declaration then stated breaches of covenant, in not making a new cut, in not diverting the stream of the Beult, in not constructing a bridge over the new cut, in not perfecting the banks of the new cut, |