rupees; that the cause be sent back to the Sudder Court, with directions to enter judgment for the plt. for that sum, and to deal with the costs in both the courts below according to the practice of those courts in like cases; and that each party do bear his own costs of this appeal. App.'s solicitor, W. D. H. Oehme. Resp.'s solicitor, J. L. Wilson. Equity Courts. Decree reversed. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE, Esqrs,, Barristers-at-Law. Feb. 28, March 5, April 20, and May 25. (Before the LORDS JUSTICES.) Will-"All my property, brewery, &c."-Uncertainty The testatrix was the owner of a brewery and several Held, that this gift was not vord for uncertainty, and Held, that there was no right in M. to have the mortgage- This was an appeal by the deft. George Bowes Morland from an order of Wood, V.C., made upon the hearing of the cause on further consideration. The case is reported 13 L. T. Rep. N. S. 91. The facts and the arguments sufficiently appear in the judgment of Turner, L. J.; but it should be added that the partnership between the testatrix and J. Moses Carter, the agreement for which expired in 1856, was continued upon the same terms till 1862. Rolt, Q. C., Chitty, and C. H. Blake supported the appeal. Giffard, Q. C. and Eddis for the plts.; and Stuart v. The Marquis of Bute, 1 Dow. 73, 80; [CHAN. Judgment was reserved until the 20th April, when Lord Justice TURNER said :-This appeal is from an order made by Wood, V. C. upon the hearing of the cause for further consideration. The questions upon the appeal arise upon the codicils to the will of Mary Spenlove, and the facts upon which these questions arise, as found by the chief clerk's certificate, and appearing upon the evidence on which the order proceeds, are shortly these: In the year 1842 the testatrix Mary Spenlove purchased from the trustees of her father's will the Abbey Brewery, at Abingdon, the plant of the brewery, some cottages within its precincts, and a large number of publicleasehold, which were attached to the brewery. 15,000l., houses, partly freehold, partly copyhold, and partly part of the purchase-money for this property, was secured by the testatrix to the trustees of her father's will by a mortgage of the freehold and copyhold premises comprised in the purchase, and was made payable by instalments. 6666l. 13s. 4d., part of this purchase-money, was remaining unpaid at the time of the death of the testatrix. The testatrix, from the time of her making this purchase until the time of her death, carried on the business of the brewery either alone or in partnership with John Moses Carter, under an agreement entered into with him, which I am about to state. In the years 1843 and 1844 the testatrix purchased two other public-houses, and in the year 1848 she took John Moses Carter into partnership with her in the brewery, and an agreement, dated the 19th Oct.. 1848, was entered into between her and the said John Moses Carter, by which it was agreed that they should enter into partnership as brewers from the 11th Oct. inst. for the term of seven years. They agreed that the casks, beer, malt, hops, horses, carts, and other movable stock-in-trade belonging to the said Mary Spenlove, should be taken to by the said firm at a valuation, and that in addition thereto the said Mary Spenlove should provide such a sum as should make up 30001. for the working capital to be repaid on the termination of the partnership; that the said Mary Spenlove should let to the said firm the said brewery, and fixed plant and buildings thereto belonging, and also all the publichouses and premises particularised in the schedule thereto, and that she should be paid by way of rent for the said brewery and premises, and for interest upon her said capital, the rent or sum of 1400l. per annum. The rent and taxes to be paid by the firm, and then, subject to the rent of 1400l. to be paid to Mary Spenlove, the profits were to be equally divided between her and John M. Carter. In the schedule to this agreement, the public-houses purchased from the father's trustees and the two public-houses which the testatrix herself had purchased, were of this partnership was afterwards, by a memorandescribed as belonging to the brewery. The term dum dated 13th Oct. 1849, extended to a period of seven years from the 11th Oct. 1849 instead of from the 11th Oct. 1848. After the forma tion of this partnership the testatrix purchased another public-house, and from that time the firm, during its continuance, paid her interest at 5 per cent. upon the purchase-money of this house in addition to the 1400l. per annum. The partnership expired on the 11th Oct. 1856, and after that date the testatrix purchased several other publichouses. All the other public-houses purchased by the testatrix after she had become the purchaser of the brewery, as well those purchased before as those purchased after the formation of the partnership, were purchased by her as additions to the brewery Clavering v. Ellison, 3 Drew. 451; 8 De G. M. & G. premises, and with the object of thereby increasing 662; 7 H. of L. Cas. 707. Chitty replied. the trade or business. All these public-houses, as well as those which the testatrix had purchased WAITE v. MORLAND. CHAN.] [CHAN. from the trustees of her father's will, were always | cause inquiries were directed, and the result has employed in carrying on the business of the brewery, been a certificate finding in effect the facts above the tenants being bound by their agreements to take stated. There was also a further inquiry directed their beer from that establishment. It must be by the decree to ascertain what property of the added that many of the leasehold public-houses testatrix was employed by her in carrying on the were held by the testatrix under the corpora- brewery belonging to her at the time of her death; tion of Abingdon for terms of twenty-one years and whether there was any and what custom of the renewable every fourteen years, and that about trade of a brewer in the district where the brewery the year 1860 the testatrix agreed with the is situate, with reference to the particulars of procorporation of Abingdon to purchase the rever-perty usually included in the sale of a brewery sion of these houses, and that since the death business as a going concern. The chief clerk came of the testatrix this agreement has been carried into to no conclusion upon this inquiry, and I do not effect under an order in this cause under which the think it necessary to enter into the question purchase-money has been paid out of the personal to which the inquiry applies. The inquiry estate of the testatrix without prejudice to any appears to me to be important only as it question. It must be added, also, that about the seems to intimate, though of course without prejuyear 1856 the testatrix agreed with Sir George dice, some leaning of the court to the conclusion, Bowyer orally to take from him a lease of about which, in my opinion, is open to no doubt, that the two acres of land at Radley in Berkshire, near testatrix intended the brewery to be taken by Abingdon, and to build thereon a public-house and George Bowes Morland as a going concern. The outbuildings, which were accordingly built by her order made by the V. C. upon the hearing of the at an expense of about 400l., and the same are now cause for further consideration is as follows: "It was known as the "Bowyer Arms;" and subsequently declared that, according to the true construction of Sir Geo. Bowyer sent a draft lease which has been the will and codicils of the testatrix, the deft. executed. George B. Morland was entitled to purchase, at a sum equal to three-fourth parts of the value thereof at the time of the death of the testatrix (subject to a proportionate part to be apportioned as thereinafter directed of the mortgage-debt subsisting thereon), the brewery and malthouse in which the business was carried on by the late partnership firm of Spenlove and Carter, including in such brewery the dwelling-house and garden, and the cottages within the precincts occupied by the clerks and labourers, and all the stock-in-trade, fixtures, plant, and utensils belonging to the said brewery business, and the testatrix's interest in book-debts and loans due in respect thereof, including therein any rents due to the partnership firm prior to the 29th Sept. 1862, when the same was put an end to. And the decree ordered that the said mortgage-debt should be apportioned between the said brewery and premises included in the above declaration, and the other hereditaments subject to the said mortgage." Then an inquiry was directed what was the value of the brewery and premises included in the above declaration at the time of the death of the testatrix. Then there was an order that John Bowes Morland should, within a fortnight of the filing of the chief clerk's certificate, pay into court a sum equal to three-fourths of the amount of such value, and other directions were given which were consequent upon the declaration which has been made. The will of the testatrix bears date the 6th Sept. 1847. By that will she devised to trustees all her real and personal estate upon trust to sell and dispose of it, and to convert it into money, and to hold the proceeds upon certain trusts for the benefit of the children of her brothers and sisters in the events mentioned, with an ultimate gift to the present app. Then the will contained this provision: "I do hereby expressly direct that either of the trustees appointed by this my will shall, notwithstanding his acceptance of the office of trustee and executor of my said will, and his acting in the execution thereof, have the liberty and full power to become a purchaser of all or any part of my said real and personal estates hereinbefore devised and bequeathed in trust to be sold, as he, not being a trustee or executor of my said will, would have been at liberty and had power to do." Then the other trustees are to convey to any person who may become the purchaser. There was also this proviso in the will, "That my said trustees and trustee shall use their or his discretion as to the time of selling the said trust estate and premises, and shall not be compelled to sell the same immediately after my decease; but it shall be lawful for them or him, if they or he shall think fit, in the meantime, until such sale or sales as hereinbefore directed shall take place, either to carry on the business of the brewery, or to grant a lease or leases thereof, or of any part thereof, with power for the tenant to carry on the same, or in any other manner, for such rent or rents, and subject to such covenants as to them may seem fit, for the benefit in either case of my estate." Then there was a proviso for the indemnity of the trustees against any losses which might be incurred in carrying on the brewery. The codicil to the will upon which the questions before us arise is dated the 20th Jan. 1853, and it is in these terms:-"This is a codicil to the last will and testament of me Mary Spenlove, which will bears date the 6th Sept. 1847. That my highlyesteemed friend and cousin George Bowes Morland (the present app.), do on my decease immediately purchase all my property, brewery, &c., at onefourth less than its value, with the proviso only that from that time and for ever John Moses Carter receives no profit from the business, and has nothing more to do with the property in any way or form whatever, for his uncivil and ungentlemanly behaviour to me." The testatrix died on the 14th Nov. 1863, and this suit was instituted for the administration of her estate. By the decree in the The appeal before us is by the deft. George Bowes Morland from this order, and it insists that the order is erroneous in so far as regards the declaration which restricts the petitioner's right of purchase under the codicil, and that it is erroneous in particular in not including therein as part of the property which the petitioner is entitled to purchase the public-houses belonging to the testatrix, and which were held by her in connection with the brewery, and in declaring the right of the petitioner to pur chase the premises therein mentioned to be subject "to a proportionate part of the mortgage-debt subsisting thereon," and in containing any reference to the said late partnership firm of Spenlove and Carter, so as thereby to restrict the app.'s right of purchase; and that the said declaration was erroneous and defective in divers other particulars; and that in lieu of such declaration it ought to have been declared that, according to the true construc tion of the will and codicils, the app. was entitled to purchase for a sum equal to three-fourths of the value thereof at the time of the death of the testatrix the brewery and malt-house belonging to the testatrix, and called the Abbey Brewery, including in such brewery the dwelling-house and garden belonging thereto, and the cottages within its precincts occupied by the clerks and labourers, or held by the testatrix in connection with the said brewery (the particulars of which said brewery and premises were set forth in the first part of the 3rd schedule to the chief clerk's certificate), and also all the stock-in-trade, fixtures, plant, and utensils belonging to the said brewery, and the business there carried on by the testatrix at her death, and also all and singular the public-houses belonging to the testatrix at her death, and which were held by her in connection with the said brewery or business, and including as freehold public-houses, the public-houses for the enfranchisement of which " (a curious expression) "the testatrix had agreed with the corporation of Abingdon, and which have since been enfranchised, as in the said certificate mentioned, and including also the public-house known as the Bowyer Arms, and also the bookdebts and loans due to the testatrix at her death in respect of the said business, including therein any rents due in respect of any of the said publichouses; and that it ought to have been thereby further declared that, as regards the said brewery and such other particulars included in the aforesaid declaration as were at the testatrix's death subject to the said mortgage-debt, the app. was entitled to purchase the same freed and discharged from the said debt, and that, as between the app. and the other persons beneficially entitled in the testatrix's estate, the said debts and interest, and also the purchase-money and sums of money paid since the testatrix's death for the enfranchisement of the said public-houses held under the corporation of Abingdon, ought to be borne and paid by and out of the purchase-money payable by the app. in respect of the said purchase, or by and out of the said testatrix's general personal estate." The first and most material point to be determined upon this appeal is, whether the app. is entitled to purchase all or any of the public-houses above mentioned at three-fourths of their value, and it will be convenient first to consider this question without reference to the purchase by the testatrix from the corporation of Abingdon, or to her agreement with Sir Geo. Bowyer. This question must depend upon the words of the context of the codicil. It was argued on the part of some of the resps. that no certain meaning could be collected from any part of this instrument, and that the whole of it ought to be held void for uncertainty; but some part of the instrument, at least, is clear; it is clear that the brewery, in the sense of the place in which the business was carried on, was well disposed of by the instrument, and the difficulty of determining to what further extent, if any, the instrument was intended to operate, cannot make the instrument void, and this argument, therefore, may be laid out of the case. It was also argued for the app. that the instrument gave him the right to purchase the whole of the property of the testatrix upon the stipulated terms, and that this right on his part could not be affected by his having limited his claim to the public-houses in question; but I think that this argument also cannot be maintained, and that the right of purchase given by this instrument was intended to be, and was, limited, and not universal. To hold that the instrument gave the right to purchase the whole property upon the stipulated terms would, as it seems to me, be inconsistent with the insertion in the instrument of the words, "brewery, &c." and with the whole context of the instrument. The question, therefore, is, what was the limit intended by this instrument; in other words, what is the meaning of the words "all my property, brewery, &c.," construed, as it ought to be, in connection with the context? These words no doubt are difficult of construction, but it [CHAN. is to be observed that the testatrix was evidently dealing with property in which John Moses Carter individually had had some interest, and he had individually no interest in any part of her property except that part of it which was employed in the brewery. It is to be observed, too, that the purposes of this instrument were twofold-one to exclude John Moses Carter, the other to give to the app. according to the tolerably reasonable inference that what was taken away from one was intended to be given to the other. These circumstances satisfy my mind that, awkwardly as the words "all my property, brewery, &c.," stand in collocation, the true meaning of them is "all my brewery property." It must be admitted, however, that this conclusion does not wholly solve the difficulty of the case. There is still to be considered the question whether these public-houses ought to be considered as falling within the description of "brewery property," and I think that they ought to be so considered. I think so for several reasons. First, it is obvious from the facts above stated that they were throughout so treated and considered by the testatrix. Secondly, I am satisfied that, having regard to the context of this instrument, it is too narrow a construction of the word "brewery" to treat it as applying only to the place in which the business of the brewery was carried on. The context appears to me to show that the word "brewery" in this instrument was not there used as descriptive of locality, but was used as extending and referring to the trade or business. By the terms of the instrument, John Moses Carter was to receive no profit from the business, and the public-houses in question were the source and fountain of the business. Thirdly, having referred to the two purposes of this instrument, it is, I think, reasonable to conclude that what was taken away from J. M. Carter was intended to be given to the app. And, fourthly, the instrument provides that John M. Carter should have nothing more to do with the property. This, I think, refers to the right which, as trustee, he would have had under the will to purchase any part of the testatrix's property, and that right would have extended no less to the public-houses than to the brewery itself. Apart, therefore, from any question as to the purchase from the corporation of Abingdon, and as to the agreement with Sir George Bowyer, my opinion is, that the app. is entitled to purchase all these public-houses at three-fourths of their value, and I respectfully dissent from the opinion of the V. C. upon this point. Then how does the case stand as to the two lastmentioned properties? There was, as I understand, a binding contract by the testatrix in her lifetime with the corporation of Abingdon, for the purchase of the fee of the public-houses held under leases from them. There was also, as I think, by reason of the expenditure made by the testatrix, a contract for a lease binding upon Sir George Bowyer upon his admitting, as he has in fact done, the terms on which the lease was to be granted; and I think that, according to the true construction of this codicil, the app. was entitled to purchase upon the stipulated terms whatever property the testatrix had in connection with the brewery. It seems to me, therefore, that he is entitled to purchase these public-houses also upon these terms. In the course of the argument before us, some question was raised on the part of the app. with respect to the mortgage to the trustees of the father's will; but, as the app. succeeds wholly upon the first point, I do not see what question there can be about that mortgage. I observe that the petition of appeal also raises some other points, but nothing was said upon those points in the course of the argument before us; and if it be necessary, the case must be further spoken to upon those points. RAPHAEL V. THAMES VALLEY RAILWAY COMPANY. CHAN.] Assuming that my learned brother agrees with me in the conclusions at which I have arrived, this order will be so materially altered that minutes, I think, should be prepared, and the case spoken to upon the minutes. Lord Justice KNIGHT BRUCE.-I agree. On the 25th May the case was accordingly again put into the paper in order that it might be spoken to on the minutes, and on the question as to the terms upon which Mr. George Bowes Morland would be entitled to become the purchaser of the property of the testatrix which was under mortgage; namely, whether the mortgage-debt ought to be paid off in the first instance out of the testatrix's personal estate, and the property be conveyed to him on his paying three-fourths of the gross value; or whether he ought to pay three-fourths of the estimated value of the equity of redemption, and then take the estate subject to the mortgage upon it. It will be seen that on the former hypothesis the price to be paid by the app. would be three-fourths of the value | of the estate itself; but upon the latter it would in effect be three-fourths of the value of the redemption plus the whole sum secured by the mortgage, and the amount thus payable would always exceed three-fourths of the value of the estate itself by a sum equal to one-fourth of the debt with which the estate was charged. Rolt, Q.C., Chitty, and C. H. Blake, for the app. George B. Morland, contended that he was entitled to have the property freed from the mortgage upon paying three-fourths of the gross value, relying, first, upon the intention of the testatrix as interpreted by the court, that the app. was to be entitled to purchase the property referred to on paying one-fourth less than its value; and secondly, on the fact that the will was made before Locke King's Act, and therefore that the debt for which the property was mortgaged ought to be paid out of the personal estate in exoneration of the property itself. They referred to The Earl of Radnor v. Shafto, 11 Ves. 448. Willcock, Q. C. and Berkeley for the plts., and Giffard, Q. C. and Eddis, for other parties, argued 'that the quantum of property in the estate which really belonged to the testatrix must be regarded, and all that she possessed was the equity of redemption. The app. must, therefore, pay threefourths of the value of that equity which remained to be ascertained, and the estate would then be conveyed to him subject to the charge which at the time affected it. The app. had the option of purchasing on stated terms, and nothing more; if he elected to exercise that right he could not avoid the charges upon the property. They referred to Scott v. Beecher, 5 Madd. 96. Rolt, Q. C. replied. Lord Justice TURNER said that, although it was impossible to declare with positive certainty what the language of the testatrix meant, he thought the more reasonable construction was that the app. was to take only the equity of redemption on paying three-fourths of its value, as to which there must be an inquiry. Lord Justice KNIGHT BRUCE said that the good sense of the case pointed clearly to this conclusion. The question as to the property purchased of the corporation of Abingdon was then brought before Their LORDSHIPS, who held that the app. was entitled to these upon payment to the trustees of three-fourths of the present value of the leasehold interest, in addition to three-fourths of the [ROLLS. sum which the testatrix had paid for the purchase of the reversion. Solicitors for the plt., Dangerfield and Fraser. Solicitors for the deft. appealing, Hilliard, Dale, and Stretton. Solicitors for the remaining defts., Graham and Lyde. ROLLS COURT. Reported by H. R. YOUNG, Esq., Barrister-at-Law. Friday, April 20. RAPHAEL V. THE THAMES VALLEY RAILWAY Railway company-Landowner-Contract-Completed line-Breach of contract by company—“ Rights of the public"-Specific performance-Bill for, dismissedCovenants. The plt. R., a landowner on the line of the defts.' railway, entered into a contract with them by which the company were to make a bridge and road, and other structures, over a certain specified portion of the plt's land. The defts. in making such bridge and road were bound by the contract to interfere with and obstruct the then present lodge-road (of the plt.) as little as possible, consistent with the deviation thereof thereby authorised." The company entered upon the plt.s land, commenced, prosecuted, and completed their works under the contract, and opened and worked their line of railway. Disputes then arose between the parties; the plt. in particular alleging that the defts. had not made their railway at the level and in the direction of the line mentioned in the plans of their works; and that the bridge and road which they had constructed were not in accordance with the specifications in the contract, and in other respects interfered with the plt.'s access to his house and grounds. Ultimately, the plt. instituted this suit for a specific performance by the defts. of their contract: Held, that it was the duty of the court to remember that there was another class of persons (not represented in the suit) whose interests must be carefully watched, and that class was the public; that it would be too great and much too dangerous a power for the Court of Ch. to exercise, were it to direct that the level of the railway actually in work, and engaged in carrying passengers and goods, should be altered for the purpose of the specific performance of a contract entered into between the company and a landowner; that the inexpediency of exercising such a power was also much increased where the specific performance of the con tract solely involved a question whether a more or less convenient access should be made to a gentleman's mansion; and still more also where that convenience was confined to a small circuit, or deviation from the plans originally agreed upon between the landowner and the company, instead of a comparatively straight road, as insisted upon by the plt.: Held also that, upon the whole case, the bill must be dismissed, but without costs, and without prejudice to the plt.'s bringing such action or actions for breach of the contract by the defts. as he might be advised. Observations on the covenants to be inserted in a conveyance from a landowner to a railway company. This was a suit instituted by the plt., Mr. Raphael, and an assignee of his, for a decree for the specific performance by the defts. of certain contracts entered into between them and Mr. Raphael, in the years 1862 and 1863. The facts of the case will sufficiently appear from the judgment of the M. R. infra. Jessel, Q. C. and Rawlinson were for the plts. ROLLS.] RAPHAEL V. THE THAMES VALLEY RAILWAY COMPANY. Selwyn, Q. C. and E. K. Karslake for the defts. Jessel, Q. C. in reply. Lord ROMILLY.-This is a suit nominally for the purpose of enforcing the specific performance of a contract, or of that portion of it which still remains unperformed; but, in other words, it is principally for the purpose of compelling the defts. to pull down a bridge and remove a road made not in accordance with the contract, and to build another bridge and make another road which shall be in accordance with the contract. The contract is clear and precise. It was duly entered into by the parties to it. One of the clauses of the Act authorising the formation of the railway confirms this agreement, and declares it to be binding upon the company, and a subsequent Act has been passed, by which this railway has been transferred to the South-Western Railway Company, and by which the rights of all parties to this contract have been recognised and preserved. Besides the bridge and road there are other matters complained of by the bill in this suit, as parts of the contract left unperformed, in respect of which relief is sought, which I shall have later to refer to; but the real and principal cause and object of the suit is the matter I have already stated. The original contract, which was afterwards modified, is as follows: It bears date the 8th May 1862. It was made between Mr. Lindsay and Sir Wm. Clay of the one part, and the plt. of the other part. It recites the following facts which are material to the present case, namely, the promotion of the Bill for making the Thames Valley Railway; that the plt. was the owner of a considerable estate through which the railway was intended to pass, and that it would be injurious to that estate; that the plt. had petitioned Parliament against it; that since the Bill had been introduced a deviation of the present line of railway had been intended; and that such deviated line would be also prejudicial to the plt.; and that Mr. Lindsay and Sir William Clay had applied to the plt. to withdraw his opposition, which he had consented to do on the terms and conditions thereinafter expressed. The agreement then proceeds in the witnessing part, in separate clauses, to state the terms of the arrangement. By the ninth of those clauses the company undertook to convey the line of railway over two arches to be made on the lodge-road at the place specified in the plan annexed to the agreement, and to construct it of the character and dimensions there mentioned; and by the tenth clause the company was also to erect and maintain all the accommodation works and fences which might be necessary and could be required under the provisions of the Lands Clauses Consolidation Act. The plt. performed his part of the agreement and withdrew his opposition to the Bill. Various modifications in the level and construction of the railway having afterwards become necessary, the agreement was altered by making the approaches from the lodge-road over the railway instead of under it; and the indenture embodying the ultimate agreement come to between the company and the plt., was dated the 15th July 1863. That agreement is expressed in clause 2 to this effect:-"That the said company, instead of making the ornamental arch at the said point marked A in the said plan indorsed or annexed to the hereinbefore recited articles of agreement, shall forthwith construct with good hard materials and complete a proper new carriage-road between the points marked K and K 2." It is not necessary to read the whole of this part of the agreement, which is unintelligible without reference to the plan and figures. There is, however, this proviso, "and for ever after maintain a good, substantial, and neat bridge of brick, iron, or stone, and having a clear width [ROLLS. between the parapets of such bridge of not less in any part than seventeen feet, with proper approaches to such bridge, having an incline of not more than one in twenty from the commencement of the rise in the road to the crown of the arch of the bridge; the parapet and way walls of such bridge to be of the height of not less than five feet, with proper fences to the sides of the inclines, and with proper approaches from the incline in the fields which adjoin such inclines, and with a proper carriage-road completing the said new carriage-road over such bridge and approaches; and also all necessary alterations to the lodge-gates, and gates and gateway, arches, and ditches of the said fields (including the building on the north-eastern side of the deviated road, near the point K, a pier to correspond with the present gate pier there, and the putting up between such piers across the deviated road there a pair of gates to correspond with the present lodge-gates, and the covering or arching over or turning the present ditch there and the altering the fences there for the purpose of such deviated road), such new road, bridge, and approaches, gates, and alterations to be made to the reasonable satisfaction of the surveyor for the time being of the said Edward Raphael; and such bridge shall be so constructed as to interfere with and obstruct the present lodge-road as little as possible consistent with the deviation thereof hereby authorised; and to make a continuation thereof over the said railway as convenient as possible, having regard to the nature of the mode of carrying the same over by a bridge; and that the said Edward Raphael, his heirs and assigns, and all persons claiming through him or them, or passing with his or their assent, shall have a right to pass over the said new road or bridge either with or without carriages, horses, cattle, and other animals, at all times, from and along the said road from one side of the said railway to the other." It specifies in the part which I omitted to read, the lines which are marked upon the plan where the deviation was to go. There is a dispute between the parties as to whether the plan referred to in this agreement or indenture of July 1863, was agreed to between the parties; and also whether it is correct. I must, however, in the absence of any application to rectify the deed of which this plan is a part, consider the contract to be set forth in the indenture and the plan attached thereto, such as it appears now when executed by. the parties. Shortly after the execution of this indenture, and while the railway was in course of construction, it was found, in consequence of the level of the railway being such as now made, and having also regard to the limits of deviation beyond which the company would not be entitled to go, that it was impossible to construct a road or bridge over the railway at the exact spot indicated by the contract and the plan attached to it, at such inclination as was specified in the clause I have read. Accordingly, on the 30th Dec. 1863, the solicitors of the company wrote to the plt.'s solicitors a letter, which is to this effectthis letter is proved, but it is omitted from the reamended bill-I read it from the amended bill in paragraph 23: "We received the tracing from you this morning, and find from it that what we feared has been the case, namely, that an incorrect plan is on the second agreement. With respect to the plan which was prepared by Mr. Nightingale, and sent to us by you, showing what works you wished, we believe it to be physically impossible for us, within our limits of deviation, to construct the approach to the lodge-road bridge on the north side, in the exact position shown, and with the rate of inclination stipulated by the agreement. The course on the northern approach must therefore be slightly diverted in a course eastward." The solicitors of the plt. |