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pended for a month to enable the defendants to appeal to the Lord Chancellor. The defendants now appealed from both orders. The appeal from the order pronounced by the Vice-Chancellor KNIGHT BRUCE came on first to be heard.

Mr. Rolt, Mr. Daniel, and Mr. Bazalgette for the appellants. They submitted that the case fell within the 85th *section of the Lands Clauses Consolidation Act, the * 292 agreement not providing for the amount of compensation, and that the notice therefore was quite in conformity with the agreement; that the plaintiffs, being mere lessees, had no right to the ground beneath the surface; that in their petition to Parliament their opposition was confined to the destruction of their ropery alone, and that the obvious meaning of the parties, when the plaintiffs consented to withdraw their opposition, was that the company should substitute a level surface equally available for the purposes of a ropery, as was theretofore enjoyed by the plaintiffs; and that the plaintiffs had by their conduct acquiesced in such a construction during the formation of the railway.

Mr. Bethell, Mr. Malins, Mr. Follett, and Mr. Logie, contra.— They contended that the notice under the 85th section was a direct violation of the agreement; that so far from having acquiesced in the defendants' construction of the agreement, the plaintiffs had filed their bill as soon as they had any reason to suspect its intended violation; and that the result of construing the word "surface" in the agreement in the sense attributed to it by the defendants, would be to preclude the plaintiffs from converting the ground to building purposes, and in fact to make it compulsory on the plaintiffs and their successors for ever after to keep a ropery or to sacrifice the land altogether.

Mr. Rolt, in reply.

THE LORD CHANCELLOR.-The question is entirely one upon the construction of the agreement; that agreement appears to me to have had two main objects in view. It was contended on the part of the appellants that the agreement had but * 293 one object; viz., the restoration of the surface for the purposes of a ropery. The first object undoubtedly was the restora[225]

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tion of the surface for such a purpose to a given level, but it also had the object of preventing the railway company from using the land by means of an open cutting; it does not express how deep below the surface the railway was to be made, in the event of its not being carried over the plaintiffs' ropery.

It appears that the land was not originally used for the purposes of a ropery, and that the plaintiffs first so used it; but there is nothing to show that the future application of the land is to be confined to that of a ropery. It further appears that two houses have been built by the plaintiffs, and it is said they contemplate building other houses; without however attaching any weight to this circumstance, yet in considering for what purpose generally the restoration was to be made, am I warranted in holding, or is there any more reason for saying, that the restored surface was intended only to be of a sufficient degree of strength to support a light carriage, and not a heavy one or a house; in short, how am I to fix the limit as to the weight which the restored surface is to bear, and how is it to be ascertained? As therefore I can see nothing in the agreement to qualify its plain meaning, and as there is nothing in it to restrain its operation to the plaintiffs' tenancy, I think the surface ought to be restored so as to be available for all the purposes to which the adjoining surface is available; and in my opinion it would not be a just construction to hold that because the agreement contains a stipulation for the restoration of the level for the purposes of the ropery, that therefore the agreement implies that it shall be restored for that purpose exclusively;

*

yet that is the defendants' construction. In the case of 294 a mining lease, where the lessee is under covenant to restore the surface to its original condition, the obvious meaning of such a covenant is that the ground shall be restored for all practical purposes and uses to which it has been previously applied. I think the Vice-Chancellor's construction was the correct one, and that this appeal must be dismissed with costs.*

*The second appeal motion was not proceeded with, and, on payment of the costs of the motion, a month's further time for the issuing of the sequestration was granted.

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Ex parte STAPLES.

In the Matter of BROWNE and of the OXFORD AND BLETCHLEY JUNCTION AND BUCKINGHAMSHIRE RAILWAY ACTS.

1852. January 23. Before the LORDS JUSTICES.

The petition of a tenant for life under the Lands Clauses Consolidation Act, 1845, for reinvestment in the purchase of land of the proceeds of settled property taken by a railway company, need not be served upon any person entitled in remainder.

THIS was the petition of the tenant for life of lands in settlement, which had been purchased by the above-mentioned railway company under the disability clauses in the Lands Clauses Consolidation Act, 1845. The purchase-money had been paid into the bank, and invested in the funds according to the provisions of the Act, and an opportunity having been found for reinvesting part of the money in the purchase of other lands, the present petitioner had presented the usual petition for a reference to the Master as to the fitness of the proposed reinvestment, and the title of the vendor.

The Master had made his report approving of the proposed purchase, whereupon the petitioner presented the present petition, praying that the Master's report might be confirmed; and that so much of the fund in Court as would be sufficient to raise the purchase-money of the lands proposed to be purchased might be sold out, and the proceeds * paid to the vendor on his * 295 executing a conveyance of the land. Upon the petition coming on to be heard, the Vice-Chancellor KINDERSLEY thought that the parties entitled in remainder under the settlement ought to have been served with the petition, and upon being informed that the usual course had been not to require service upon any of the persons entitled in remainder, and that the introduction of a different practice would greatly increase the expenses to which railway companies were subject, his Honor desired that the question might be submitted to this Appellate Court.

Mr. Bethell and Mr. Speed, for the company. Since the commencement of railway business in 1832, it has been the prac

tice to make orders for reinvestment without requiring the persons interested in remainder to be served. By the 7th section of the Lands Clauses Consolidation Act, 1845, a tenant for life is enabled to convey without the concurrence of the remainder-man, and by the 70th section a tenant for life may petition to have the money laid out in the purchase of other lands, and to have the money invested in government or real securities in the mean time. The Act does not require service upon any person entitled in remainder.

[THE LORD JUSTICE LORD CRANWORTH.-Your contention is, that the legislature intended to make the tenant for life a sort of protector of the settlement. I observe that where the fund is less than 2007. the 71st section of the Act provides that it may be paid to two trustees to be nominated by the tenant for life, approved of by the company, and by them applied in the purchase of other lands. It appears that in that case the trustees might act without the consent of the cestuis que trustent under the settlement.]

The person to act throughout is the tenant for life, he * 296 * makes the sale to the company with the safeguards provided by the statute, and he is the person to suggest the manner in which the purchase-money is to be dealt with. The Court acts upon that suggestion, and takes upon itself to protect the interests of all persons interested in the inheritance. That has been the course hitherto invariably pursued. The effect of holding that it has not been according to law would be to put in hazard an enormous amount of capital paid away by railway companies upon the faith of the practice hitherto invariably adopted.

[THE LORD JUSTICE LORD CRANWORTH. - Great difficulty might occur where the persons entitled in remainder are under disabilities. It would appear that the person intrusted by the legislature with the power of selling the property might be equally well intrusted to select a proper reinvestment, especially as the investment is required to be made with the sanction of the Master.]

If the remainder-man must be served, why must not persons having charges on the estate; for example, legatees?

Mr. Baggallay, for the petitioner, said that the Vice-Chancellor had consulted two other of the Judges upon the subject, and that they had concurred in his Honor's conclusion.

THE LORD JUSTICE KNIGHT BRUCE. Taking analogy and practice together, I think it inexpedient to change the usage hitherto pursued.

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THE LORD JUSTICE LORD CRANWORTH. If the question had come before me in 1832, when the first statutes were passed, I rather think my decision would have been in accordance with the practice hitherto adopted; but when it appears as matter of fact that this practice has gone on for twenty years, and * 297 no inconvenience has been shown to have resulted from it,

I am certainly not prepared to say that the practice should be changed.

Ex parte The EARL OF HARDWICKE.

In the Matter of The ROYSTON AND. HITCHIN RAILWAY COMPANY'S ACT, 1846.

1852. January 30. Before the LORDS JUSTICES.

A railway company gave the usual notice to a tenant for life of settled estates that they required a portion of the estates for their line, and afterwards made an offer for the fee-simple. The solicitor of the tenant for life accepted the offer, stipulating that interest at 51. per cent should be paid from the time of the company taking possession, and proposing that, as the title was well known, the company should be satisfied without the production of the deeds. To this the company objected, and proposed to pay the money into a banker's in the names of the respective solicitors pending the investigation of the title. The tenant for life's solicitor thereupon suggested that, as the money must be paid into Court, it had better be so at once. The company thereupon paid the money into Court to the account of the Railway Act only, and communicated to the tenant for life's solicitor that they had paid the money into Court under the 69th section of the Lands Clauses Consolidation Act. The solicitor for the tenant for life thereupon reminded them that interest at 5l. per cent would continue to be payable till the purchase was completed. To this the company's solicitor returned no answer, and, although several other communications passed between the solicitors respecting the purchase, the com

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