over and along the said road, and all roads or paths on the estate of the lessor, with all ways, easements, &c. thereunto belonging or appertaining. Covenant for quiet enjoyment.

Averment that afterwards the defendant demised to one Burgess other land, parcel of the said estate, for building purposes, without any reservation of ways or roads, and with an indemnity to him against all actions in respect of such land. Breach that Burgess, by virtue thereof, entered and built on the land demised to the plaintiff, and in so doing obstructed and stopped certain of the roads and ways granted to the plaintiff by the defendant, viz. Elizabeth Place, &c., and thereby the plaintiff's property was deteriorated in value, &c.

Second count, for that the plaintiff was possessed of a piece of land, and was entitled to a right of way therefrom over a certain close to a public highway, but that the defendant wrongfully obstructed it.

Pleas: 1. Non est factum.

2. That the said road or way was not demised as alleged, and did not form part of the said demised premises.

3. Denying the breach.

4. To the second count, that the plaintiff was not possessed of the said piece of land, and entitled to a right of way as alleged.

Shee, Serjt., and Pearce for the plaintiff.

M. Chambers and Honyman for the defendant.

The premises demised both to the plaintiff and to Burgess formed part of land which had been purchased with money of Elizabeth Taylor, wife of one Daniel Taylor, and which, in 1851, was settled on her, the defendant being appointed trustee for her use; but her husband, Daniel Taylor, up to the time of his death, acted for him in the management of the estate. The land had, up to

1862.

SPANTON.

v.

HINVES.

1862.

SPANTON

v.

HINVES.

the time of the purchase, been garden ground, with nothing
built upon it. But afterwards it was laid out for building
purposes, and in 1852 a plan was made, with streets and
roads marked out upon it. In 1852 there was a building
agreement between the plaintiff and defendant, under
which the plaintiff was to have built fourteen houses in
Elizabeth Place, one of the streets so marked out, Blue
Anchor Road being another. In 1854 the agreement was
cancelled, and the demise was made to the plaintiff, the
defendant demising, and the cestui que trust, Elizabeth
Taylor, joining in the demise by way of confirmation.
This demise was of a piece of ground on or near the line of
the Blue Anchor Road, &c., on the west side of a new
road or way called, or to be called, Elizabeth Place, &c.,
and abutting on a new road or way called Blue Anchor
Avenue, and together with the free right of way over and
along the said road or avenue, and all roads and paths on
the said estate, to pass and repass from the ground hereby
demised, and also all other ways, paths, passages, ease-
ments and liberties to the said demised premises apper-
taining or belonging. There was a covenant by the plain-
tiff to build fourteen houses in what was called Elizabeth
Place; and the plaintiff built houses, pursuant to his
covenant, in "Elizabeth Place," at which time there were
skeletons of houses opposite thereto, built by another
lessee. In 1856 the defendant demised to Burgess certain
land, part of Elizabeth Place, who thereupon built on the
land so demised to him, so as to cut that street short,
obstruct the passage through it, and convert it into a cul
de sac.
The question in the cause was, whether the part
of Elizabeth Place so cut off was a "way," to which the
plaintiff was entitled under his lease.

There had been notice, on the part of the plaintiff, to produce the lease and agreements, and every plan formerly in the possession of Daniel Taylor, relating to the land in question, and particularly to ground demised to the

plaintiff or to Burgess, or in any way relating to the matters in issue in this cause.

The surveyor, who, in 1852, was employed by the defendant and Taylor to survey the estate was called, on the part of the plaintiff, to prove that he had prepared a plan thereof, in which the roads and ways were set out, which he had shown to the plaintiff. He said he had discussed the matter with Daniel Taylor, and seen the defendant at Taylor's house in 1854 (before the demise to plaintiff), and the plan was then on the table, and referred to.

M. Chambers objected to this, that the demise must speak for itself, but

ERLE, C. J.—I must rule in accordance with my ruling yesterday, in Bruff v. Conybeare (a), that the evidence is admissible to apply the written document, and show what it refers to. The demise is of all roads and ways, &c., and I must hear evidence to show what they were, i. e. what ways were pointed out to the tenant.

The surveyor went on to state that on the occasion when the lease was executed at Taylor's house, the defendant and Elizabeth Taylor being present with the plaintiff, the plan was on the table, and referred to.

Chambers, after eliciting that Elizabeth Place was only just commenced, objected that the lessor was only bound by the state and appearance of the property as it then existed, not by mere plans or proposals; but

ERLE, C. J., said he should hold that all ways, roads, &c., marked out on any plan shown to the tenant before he executed the lease would be included in the demise (b).

Chambers then, having elicited that the plan mentioned by the witness had been destroyed by accident, objected to the one produced (which was not an exact copy of it,

(a) Vide post, p. 56.

(b) See Glave v. Harding, 27 L. J., Exch. 286.

1862.

SPANTON

v.

HINVES.

1862.

SPANTON

V.

HINVES.

but in substance the same) until it was traced to the possession of the defendant; but

ERLE, C. J., said he should hold, that as the cestui que trust and the trustee, i. e. Elizabeth Taylor and the. defendant, were in interest identified, it was enough that the possession of the plan had been traced to the former, and notice to produce given to the latter.

The plan which had been in the possession of the cestui que trust not being produced, and the plan retained by the witness having been proved to be destroyed, the witness was allowed to refer to a plan in substance the same, which was produced.

Ultimately, however, the cause ended in a reference to arbitration.

Spring Assizes.

An agreement in writing having been entered into between two railway engineers, which was headed "Chard Canal Railway Company," and by which the defendant was to pay the plaintiff a sum of money in consideration of his handing

over the plans relating to the canal scheme,

the money to

be paid on the passing of the

act; evidence was admitted

BRUFF v. CONYBEARE.

ACTION on an agreement by the defendant to pay the plaintiff 6007. The question in the cause was on what event it was to be paid.

Bovill and Needham for the plaintiff.

M. Chambers, Lush and Brown for the defendant.

The parties were railway engineers, and the plaintiff had been engaged in a project for a line between Chard and Taunton, and bad plans, &c. relating thereto, and likewise some interest with landowners in the district. There had been a scheme to convert to the purpose of such a line the Chard Canal, and a "Chard Canal Railway Company" had been formed by the exertions of the plaintiff, with a view to carry it out. The defendant desired to promote such a line, and on the 28th of May, 1860, the parties

to show, by the prior conversation between the parties, whether the agreement related only to the canal scheme (which proved abortive) or to any act for a Chard railway.

met, and the defendant signed a memorandum in these terms, headed "The Chard Canal Railway Company:""In consideration of your transferring all the interest you may have in this company, and handing to me the plans and documents in your possession in connection therewith, I undertake to pay you 6007., provided my friends succeed in carrying out the undertaking; to be paid thus,-3007. on the first portion of the land being required by the company, and the balance out of the money received by me on the construction of the line, &c." A discussion ensued, which resulted in the defendant's writing on the above an additional memorandum, to the following effect:

"It is understood that the 600l. herein referred to shall become payable on the obtaining of the act; one moiety in six months, the residue in three instalments. The measure is to be bonâ fide prosecuted, and the furnishing of the documents is an honourable understanding, &c."

And it was mainly on the effect of this indorsement that the question in the cause was found to turn.

Upon the agreement being entered into, the plaintiff at once handed over to the defendant the plans referred to, and which only related to the canal scheme.

On the 1st of June, 1860, it was found that (owing to the difficulties raised by the demands of the canal mortgagees) the canal railway scheme could not be carried out, and the defendant wrote to the plaintiff to that effect.

On the 14th of June the parties had an interview, at which (as the plaintiff stated) the plaintiff showed the defendant an Ordnance map of the country, on which he had sketched out another line, avoiding the canal, which the defendant copied. Eventually the Bristol and Exeter got an act for a scheme comprising a Chard and Taunton line, founded, as the plaintiff alleged, on the line so suggested by him. In carrying this act both the parties cooperated, and the defendant formed a new company to promote it in the locality. On the carrying of the act the

1862.

BRUFF

v.

CONYBEARE.