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M. T. 1858. also indicates land of the plaintiff severed by the Railway running Exchequer. from A to B ; and the level crossing at 940 shows the crossing given by the defendants, in alleged pursuance of the award.

MANN

v.

GT. S. & W.
RAILWAY.

Mr. Fishbourne was then examined. The purport of his examination and the nature of his evidence will appear from the LORD. CHIEF BARON's judgment.

The Company's engineer was also examined, and he stated that he offered the plaintiff an oblique crossing on 37, if he gave him his consent in writing to that effect, but that he refused.

The LORD CHIEF BARON then charged the jury, and told them that they should exclude from their minds the evidence of Mr. Fishbourne, relative to the position of the level crossing, and that the defendants, under the terms of the award, were bound to make an oblique crossing, so as to connect the two portions of the road, 37, which had been interrupted.

Objections were taken, on behalf of the defendants, to his Lordship's charge.* The jury having, in consequence of his Lordship's direction, found a verdict for the plaintiff on the 8th, 9th, 10th, 11th, 12th, 13th and 14th issues.—

G. Fitzgibbon, in this Term, obtained a conditional order to set aside the verdict and for a new trial, on the ground of misdirection. A conditional order was also obtained, on the part

*NOTE.-The points made at the trial for the defendants were in substance :1. That his Lordship should have told the jury that, as the written award was silent as to the direction and position of the level crossing, they were at liberty to consider the evidence of Mr. Fishbourne, and, if they believed it to be in the position verbally pointed out by him, they should find for the defendant.

2. That he should have told them that if they came to the same conclusion upon the evidence, the Company had fulfilled every obligation imposed on

them.

3. That he should have told them the award only made it imperative on the Company to have the crossing near peg 940, and that if it were near 940, the Company had fulfilled every obligation imposed on them by the award.

4. That he should have left to the jury, as a question of fact, whether, considering not only the terms of the award, but also the parol evidence of Mr. Fishbourne, the crossing was in the place and position intended by Mr. Fishbourne.

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of the plaintiff, in pursuance of the leave reserved, to enter a verdict M. T. 1858. for him for £60, on the fifth count.

Exchequer.

The case was now argued on both points.

G. Battersby (with him D. C. Heron), for the plaintiff. The first question is, is a lessee, for a term of thirty-one years, an owner, within the meaning of the 54th section of the 8 & 9 Vic., c. 20, of the private road on his farm, found by the jury to have been interrupted, so as to recover penalties for the interruption? It will be material to ascertain who are "owners" within the definitions given by the 8 & 9 Vic., cc. 18 & 20, and if these Acts do not contain any clear definition of the term, what the meaning of "owner" is in law? By the 79th section of the 8 & 9 Vic., c. 18, the party in possession is, for some purposes, deemed the "owner." By the 3rd section of the same Act, "owner is, for the purposes there mentioned, defined to be any person who, under the provisions of that or the special Act, would be enabled to sell and convey lands to the promoters. A conveyance from the plaintiff was necessary, and was obtained by the Company; he is therefore one of a class of "owners" within the contemplation of the Act. The practice has been to treat and deal with the lessee for years as an owner: Dakin v. The London and North-Western Railway Company (a); Willey v. The South-Eastern Railway Company (b).

The 3rd section of the 8 & 9 Vic., c. 20, contains the same interpretation clause as the preceding Act, but in both cases the terms defined are to bear the several meanings thereby assigned to them, "unless there be something, either in the subject or context, repugnant to such construction." There is that repugnancy in the present case. The plaintiff was the person entitled to the use of the road; and as being the person entitled to the use of the road, he was the person injured by its interruption; and the circumstance of the penalties being given de die in diem shows that the party injured was to be the party redressed. The Company are bound to provide accommodation works for the party in possession; and when (b) 1 Mac. & G. 58.

(a) 3 De G. & Sm. 414.

MANN

V.

GT. S. & W.

RAILWAY.

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