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presumed, and therefore in the absence of proof to the contrary, drawn either from the tenor of the agreement or from extraneous sources, the intendment would be (b) that the party's quality of peer, &c. in no way affected the bargain, and that he was left, notwithstanding the supposed agreement, to exercise his free judgment and give or withhold his vote according to his conscience upon the measure when it came before him in his legislative capacity.

59. 3rd. As to the objects for which a party may stipulate. A party then may conclude such a contract, not simply with the view of securing himself an adequate recompense for the threatened injury to his property, but likewise by way of precaution against the projectors coming upon it at all, and in order to drive them to take a different line. Even though the payment, upon which the party actuated by this double motive insists, be beyond all proportion to the amount of substantial injury that the railway is calculated to inflict on his property, and must, if exacted, exhaust the funds of the company to such a degree as to render them incapable of completing their project, yet this, it seems, cannot be taken to invalidate the contract. (c) Nay, though a party stipulate in express terms for the projectors subsequently endeavouring to deviate their line, and bind them to take the necessary steps for the purpose, the agreement is not on that account invalid. Though, in this case, if it were originally intended by the parties to the contract to conceal the part of

(b) Lord Howden v. Simpson, ubi supra; see also Lord Petre v. Eastern Counties Railway Company, ubi supra.

(c) Lord Petre v. Eastern Counties Railway Company, ubi


it touching the deviation from the legislature, it might make a difference; inasmuch as the transaction might be regarded as a fraud on the legislature, the parties having agreed to make a false representation to that body by stating the object of the adventurers to be to carry one line into effect, and concealing the design of applying for another. (d) In no case, it is conceived, could a stipulation of the above nature be open to be impugned on the ground of its being a fraud on the other landowners on the line of the intended railway, even though calculated to operate in some respects prejudicially to their interests, there being no common obligation, as we have before remarked, on the different landowners to place themselves on the same footing. (d)

60. A party may stipulate, as part of the consideration for his withdrawing his opposition, for the payment of a fixed sum of money at a given time after the passing of the act, and in this case no subsequent alteration in the plans of the projectors can relieve them from their obligation, (e) even though the line ultimately adopted by them altogether avoids the party's land.

(d) Lord Howden v. Simpson, 10 A. & E. 793; S. C. 3 R. Cas. 294, affirmed on appeal to the House of Lords.

(e) Lord Howden v. Simpson, 10 A. & E. 793; S. C. 3 R. Cas. 294, affirmed on appeal to the House of Lords.



SECT. 1.-Of the Validity of such Act.
2. Of the Construction of the Act.

SECT. 1.-Of the Validity of the Act.

61. In general, the validity of an act, constituting a railway company, cannot be disputed, though it may possibly be otherwise, where the act is obtained by fraud or misrepresentation practised upon the legislature. But where the false representation is embodied in the act, or there is otherwise a misrecital of any important particular, (a) that, it may be said, is no ground for impugning the authority of the act, inasmuch as it can hardly be competent for a party to question the truth of what is stated as a fact in the act of parliament. (a)

(a) See judgment of Alexander, C. B. in Cromford Railway Company v. Lacey, 3 Y. & J. 80, where the point was raised though not decided, as the case ultimately went off on a different ground.

SECT. 2. Of the Construction of a Railway Act.

I. Of the General Principles of Construction.

II. Of the Principles applicable to particular Clauses. III. Of those applicable to several Acts relating to the same Company.

62. I. Of the general principles of construction applicable to the entire act. A railway act is to be viewed as a bargain between the adventurers and the public, the terms of which are expressed in the statute. (b) The fundamental rule of construction accordingly in all such cases is established to be this, viz. that the adventurers can claim nothing, which is not clearly given them by the statute; on this may be engrafted what follows, as a necessary corollary from it, viz., that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public. (c) Although the meaning of a railway act should be clear and explicit, the criteria, it may be remarked, by which that meaning is to be ascertained, are the same as in the case of any other instrument, viz. the language, and the sense or reason of the law as collected from the entire act. As a general rule, the language is to be understood in its ordinary sense; but if such a construction lead to an absurdity, or is manifestly repugnant to the express or implied intention of the

(b) Blakemore v. Glamorganshire Canal Company, 1 My. & K. 154.

(c) Stourbridge Canal Company v. Wheeley, 2 B. & Ad. 793 Priestly v. Foulds, 2 Railway Cas. 441; S. C. 2 M. & G. 175; see also Parker v. Great Western Railway Company, 7 Scott's N. R. 835; S. C. 22 Law Journ. C. P. 105.

legislature, then the grammatical sense of the words. may be modified, to obviate such absurdity or cure such repugnance. (d)

63. Where a railway act, as is usually the case, concludes with the legislative declaration that it is to be taken as a public act, and judicially taken notice of as such by all judges, &c., it cannot be treated as a mere private assurance, more especially considering its general public nature, manifested in every section. (e)

64. A party interested in the subject-matter of a private act of parliament, is liable to have his rights affected by its provisions, though it may have been introduced and past without due notice being given to him. (ƒ)

65. II. Of the rules of construction, applicable to some of the more important provisions usually found in railway acts, and herein. 1st, of the power of taking land. A power of this nature, calculated to operate in a manner so highly derogatory to private property, must, it seems, receive a strict interpretation. If, in the supposed exercise of such a power, the company enter upon or take any man's land, they must clearly establish their authority to do so; and if the words of the statute on which they rely are ambiguous, every presumption is to be

(d) Rex v. Pease, 4 B. & Ad. 41; Turner v. The Sheffield and Rotherham Railway Company, 10 M. & W. 425; S. C. 3 Railway Cas. 230.

(e) Per Shadwell, Vice-Ch., Hargreaves v. Lancaster and Preston Junction Railway Company, 1 Railw. Cas. 430.

(ƒ) Edinburgh, &c. Railway Company v. Wauchope, 8 Cl. & Fin. 711; S. C. 3 R. Cas. 232.

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