CHAN.] TALBOT v. STANIFORTH-BOND v. BIGGS. of the roads being made and preserved. I have thought it right to consider this point, as it seems to me to bear materially upon the covenants contained in the deed; for, if the lands marked out as roads were not conveyed to George Selby in part of his undivided moiety, the covenants entered into by him must be looked at as covenants SO entered into by him, not as beneficial owner of the soil, but as the holder of it for the benefit of himself and of the other persons interested under the covenants; and a more liberal construction in favour of those other persons may, as I apprehend, well be given to the covenants in the latter than could properly be given to it in the former view of the case. Whether these covenants, however, are to be looked at in one view or the other, it is upon the terms in which they were expressed that the question I am now considering must depend. In whatever point of view the case is looked at, the lands marked out as roads are most certainly vested in George Selby; and, if taken by the plts. at all, were taken by them subject to the grant, reservation, covenants, stipulations, provisoes and agreements, in the deed contained; and by the deed George Selby covenanted that the owners and occupiers of every part of the lands limited to the use or for the benefit of Price, and of all and every the messuages and dwellings then or at any time thereafter to be built thereupon, should have the full use and enjoyment of all the roads in as full, free, complete, and absolute manner, to all intents and purposes whatsoever, as if the same were public roads. These words seem to me to import that the several persons referred to in the covenant were to have all such use and enjoyment of these roads as they could have had if they were public roads, more especially having regard to the immediately preceding words of the covenant, which provide, in the most extensive terms, for the rights of transit. It was argued for the apps. that the use and enjoyment of the roads must mean the use and enjoyment of them quâ roads, for the purpose for which roads are ordinarily used-the purpose of transit; but, if the use and enjoyment covenanted for are the use and enjoyment of the roads as if they were public roads, and if, being public roads, they could be used for other purposes than the purposes of transit, I do not see my way to cut down the effect of the general and extensive words of the covenant, so as to confine them to the purposes of transit only. It was argued for the apps. that no such rights as now exist on the part of the gas company existed at the date of this deed, and that the covenant ought to be confined to such rights of user of public roads as then existed; but the covenant extends to the full use and enjoyment of the roads as if they were public roads from time to time, and at all times for ever hereafter, and I think, therefore, that it extends to new modes of use and enjoyment of public roads arising after the date of the deed. It was also argued for the apps. that the meaning of the covenant was open to doubt; that the recital, therefore, must be called in aid to construe it, and that, according to the recital, the agreement between the parties applied to the rights of transit only; but, assuming that the recital may be taken into account, it does not seem to me to aid the apps.' case, for, according to the recital, the roads are to be continued by the apps. for the mutual use and benefit of Selby, Underwood, and Staley, and all the other owners and occupiers of the houses for the time being, in the most complete mode of enjoyment, as if the same were public roads. It was further urged for the apps. that it was not within the meaning and intent of the covenant that the rights of the persons entitled to the benefit of it should be blended with the rights of the gas company; but, as I read this deed, the occupier of every house was to have the full use and enjoyment of the roads as [CHAR if they were public roads, and I think, therefore, de every such occupier takes, under the deed, the righ to call in, for any purpose of use or enjoyment via he may desire to have, all such aid as he weak a entitled to call in if the roads were public rus 1 agree, therefore, with the M. R. in the construci which he has put upon this deed; and, as the gu company have laid down these pipes at the reqant di the occupiers of the houses, and would have bes entitled to lay them down if the roads were pudr roads, I am of opinion, without entering into the other questions which were argued at the bar, that this bill was properly dismissed with casts. The pla in fact, in my opinion, have instituted this suit in retravention of the covenant by which they are boul My learned brother, however, does not, I believe, take the same view, or, at all events, so strong a vevd the construction of this deed as I have taken; and think, therefore, the appeal should be dist without costs. Webb asked, whether the occupiers would be alleva their costs? Lord Justice TURNER replied in the negative. Solicitors for the plts. appealing, Messrs. Merri, Stone, Townson and Morris. Solicitor for the mortgagees of the plt, J. A Jennings. Solicitors for the resps. the gas company, and also for the occupiers to whose houses the gas had been lad a Messrs. Thorndike and Smith. Nov. 6, 7, 8, 11, 12 and 13, 1861. (Before the LORD CHANCELLOR (Westbury). TALBOT V. STANIFORTH. This case, reported 5 L. T. Rep. N. S. 47, was appeal from a decision of Wood, V. C., in a sult ind tuted by the plt., a young man of twenty-three, to st aside the sale by him of a certain contingent resionary interest in an estate in Cheshire, of the val had been made to his uncle, Sir Arthur Aston. as was alleged, of upwards of 5000%. a-year, and wild the several days above mentioned, and on the crtThe cause was argued before the Lord Chancelle a clusion of the argument his Lordship expressed a strong opinion in favour of a compromise being effected but at the same time stated that he would be ready to deliver his judgment on the first sitting after Michaelmas Term. The delivery of the judgment was, borenable a compromise to be carried out, and ultimate, ever, further postponed, at the desire of the parties, to fants, a petition was presented for the sanction of the on the 12th July last, some of the parties being inLord Chancellor to terms of arrangement which had been agreed upon, and an order was made in accordance with the prayer of the petition. Saturday, June 14. (Before the LORD CHANCELLOR (Westbury). BOND V. BIGGS. Will-Construction of-Mortgages on two estala – Interest. A testator devised two estates, known as the Home estate and the outlying estate, to trustees sps trust as to the latter for sale, and with the proceeds to pay off certain mortgages existing on both properties. The tenant for life of the Home estat claimed to have the income of the outlying property in the meantime until the sale applied in discharge of the interest accruing on the mortgages: Held, on appeal, that he was so entitled. This was an appeal from a part of a decree of Stuart, V. C., upon the construction of the will of Harry Biggs, late of Stockton-house, in the countr Wilts, who by his will, dated the 9th Feb. 1856, after devising certain leasehold estates to the said def of CHAN] BOND v. BIGGS. [CHAN. enry Godolphin Biggs, with a certain conditional | the same; that is to say, upon trust with and out of mitation in the said will contained, devised his free- the moneys to arise from such sale or sales, and mesne ld mansion-house, called Stockton-house, and his rents and profits, in the first place to pay and discharge tates at Stockton, in the occupation of himself and all costs and expenses to be incurred by them or him s tenant in the said will named, and his manor of in or about such sale or sales as aforesaid, or otherwise tockton and his manor of East Codford, with his in or about the execution of the trusts last aforesaid, pital farm and hereditaments in the parish of the or in relation thereto, and in the next place to pay off me name, and a small portion of land in the parish and discharge, so far as the same would extend for that Codford St. Peter (all which estates are hereinafter purpose, and with such preference, and by and in such eferred to as his Home estates), subject to the mort- mode and order of payment as his said executors, and ages thereon respectively, unto plts. and their heirs, the survivor of them, his executors and administrators, o the uses and upon the trusts, and with and under should in their and his discretion think fit, the several he powers, provisoes and declarations thereinafter de- mortgages and incumbrances which might then for the lared concerning the same, and in part hereinafter time being be a charge upon the Home estates thereinstated; that is to say, to the use of Henry Godolphin before devised in strict settlement, or either of them, Biggs during his life, without impeachment of waste and all costs and expenses in any wise incident thereto, (except as thereinafter mentioned), and after his de- and subject to the trusts aforesaid, to stand possessed cease to the use of each of the sons of the said Henry of and interested in the surplus of any of the said sale Godolphin Biggs who should be born during the life- moneys and mesne rents, upon and for the trusts, time of the said testator, for the life of such intents and purposes, and with, under and subject to son, without impeachment of waste; and after the powers, provisoes and declarations thereinbefore his decease to the use of his first and other sons declared, expressed and contained of and concerning successively according to their seniorities in tail male, the money to arise by any sale to be made in exercise of with remainder to the use of the sons of the said Henry the power of sale and exchange therein before contained. Godolphin Biggs who should be born after the tes- And the testator thereby declared that his said tator's death successively according to their respective executors, their heirs and assigns, should stand seised seniorities in tail male, with remainder to the use of of such of the said hereditaments and premises lastly his daughter Emma Yeatman, the widow of Harry thereinbefore devised as should remain unsold and Farr Yeatman, Esq., deceased, during her life, without undisposed of under the trust for sale therein before impeachment of waste, and after her decease, to the contained, and of the yearly rents thereof, subject to use of Arthur Godolphin Yeatman, second son of the any mortgage or mortgages which might have been said Emma Yeatman and his assigns during his life made of the said hereditaments and premises, or any without impeachment of waste, and after his decease to part thereof, upon and for such intents and purposes, the use of his first and every son successively accord- and with and under such powers, provisoes, conditions ing to their respective seniorities in tail male. The and declarations us would best and nearest correspond will also contained a trust for the management with the uses, trusts, intents and purposes, powers, by the said trustees of the said Home estates, during provisoes, conditions and declarations thereinbefore the minority of any persons for the time being en- declared and contained concerning the Home estates, or titled in possession, and a direction that, after deduct- such of them as should be then capable of taking ing the expenses of management, repairs, renovations, effect. And the said testator by his said will declared insurance and other outgoings, and satisfying every that the several persons who by virtue of his said will annual sum and the interest of any and every gross should become entitled to the possession or receipt of sum which might be charged upon the said Home the rents and profits of such of the hereditaments estates, or any part thereof, the said trustee or trus- thereby devised as should for the time being be subject tees should apply the residue of the same rents and to any mortgages or other incumbrances, or the underprofits, or a competent part thereof, at the discretion charged balance of any mortgages or other incur.of the said trustees or trustee for the time being, for brances, should duly and regularly pay and keep down, or towards the maintenance and education of such during the period for which he or she should be so minor, or for his advancement or preferment as therein entitled, the interest of such mortgages or other inmentioned, and with such powers of jointuring, por- cumbrances or balances respectively (as the case might tioning and leasing, and of sale and exchange as be), and should not be entitled to have any of the said therein mentioned; and as to all the residue of his real hereditaments exonerated, either in the whole or in part, estates in the parishes of Asserton, Berwick Saint under or by means of any of the devises, trusts, or James, Maddington, Winterton, Stoke and Sherrington, provisions contained in that his said will, otherwise and Codford Saint Peter, except a small portion there- than the said trustees or trustee thereof should in their inbefore referred to and excepted (and which said or his absolute and uncontrolled discretion from time estates are herein referred to as his outlying estates), to time think fit. And the said testator gave and bethe said testator devised them to plts. as such trustees queathed all his farming stock (live and dead) and as aforesaid upon trust (but subject as to a portion of implements in husbandry, including the standing crops the said estates at Asserton to an annuity of 300l. and emblements on such of his said lands as at the payable to his wife under his marriage-settlement) as time of his decease should be in his own occupation, soon as conveniently might be after his decease as they moneys in the funds, and all other his personal estate and should in his or their discretion think fit, but never-effects whatsoever, and such personal estate and effects theless during the life of his said son Henry Godolphin Biggs with his consent in writing, and in case he should die without issue male during the life of his daughter Emma Yeatman, then with the consent in writing of the said Emma Yeatman during her life, absolutely to sell and dispose of the said estates in manner and with the powers therein mentioned, and to stand possessed of and interested in the purchasemoney to arise from such sales, and of the mesne rents and profits of the same, upon and for the trust, intents and purposes, and with, under and subject to the powers, provisoes and declarations therein declared, expressed and contained of and concerning as by virtue of any power he was or should be enabled to dispose of by his said will (except such personal estate and effects as was or might be vested in him as trustee or mortgagee), unto his said executors, the said plts., their executors, administrators and assigns, upon trust for sale; and that his said trustees or trustee should stand possessed of the proceeds thereof upon trust, with aud out of the said moneys, to pay and satisfy all his just debts, funeral and testamentary expenses, and the several pecuniary legacies given by his said will, or by any codicils thereto, and should lay out and invest the residue of the said moneys in their or his names of name, in the Parliamentary stocks or public funds of Great Britain, or on Government or real securities in England or Wales, and should from time to time, at their or his discretion, alter, vary and transpose the said stocks, funds and securities for or into other stocks, funds, or securities of a like nature. And he thereby also declared that his said trustees or trustee for the time being should stand possessed of such lastinentioned stocks, funds and securities, and the interest, dividends and annual produce thereof, upon such trusts as were therein before declared for paying off and discharging any incumbrances which might for the time being be a charge on or affect his said freehold hereditaments thereinbefore devised, the said hereditaments at Stockton and East Codford (meaning thereby the Home estates) having a preference and priority in that behalf over his other freehold estates. And the said testator, by his said will, appointed the plts. executors thereof. The said testator died on the 30th May 1856, with out having revoked or altered his said will, which was duly proved by the plts. Thomas Bond and John Henry Jacobs, on the 26th Sept. 1856, in the Prerogative Court of the Archbishop of Canterbury. The said testator left the said defts. Henry Godolphin Biggs and Emma Yeatman, widow, his only children, him surviving The question raised was, what was to be done with the income arising from the outlying estate until the sale directed by the will took place. It was contended by the tenant for life that it should be applied in keeping down the interest of the mortgages on both properties. The V. C., on the case coming before him, took a different view of the matter, and the tenant for life now appealed. Malins, Q. C. and Prendergast appeared for the app., the tenant for life. Craig, Q. C. and Hobhouse for the plts., the trustecs. Bathurst for the deft. Emma Yeatman, the widow. The LORD CHANCELLOR was of opinion that the incoine of the outlying estate was the natural fund to be resorted to for keeping down the interest on the mortgages on both estates, and that the tenant for life of the Home estate was entitled to have the rents so applied. His Lordship would therefore vary the decree and declare that the tenant for life, until the sale, was entitled to the income of the estates, to be applied in keeping down the interest on the mortgages. Costs of the appeal to be paid out of the estate. Solicitor for the plt., U. and N. Coulthurst. July 26, 29 and 30. (Before the LORD CHANCELLOR (Westbury). PHILLIPS v. TREEBY. Injunction-Deed-Construction. By a deed of agreement it was stipulated that, for certain considerations, the deft. should grant to the plt., his heirs, &c., full and free permission "to use at all times the roads and ways in and through his (deft.'s) estate." [COAX deft. John Wright Treeby of the one part, and thepa Stephen Phillips of the other part. The deed m that the parties were the owners of lands an each other in the parish of Paddington; that t was the owner of waterworks called the Westo Waterworks, and that the parties agreed to ente certain covenants thereinafter mentioned, as wild the supply of water to the plt.'s estate as for tiene of roads over the deft.'s estate. The clause in dyn was as follows:-" And for the considerations de said, the deft., for himself, his heirs and assigns, bevi agrees, in case the plt., his heirs and assigns, stai all things perform his or their parts of the slaps ment, to give and grant unto the plt., his és 2. assigns, and his and their lessees and occupiers file. free permission to use at all times the roads and may in and through his estate, and to make the seam openings and ways in and upon the same ara agreed upon and set out in a plan signed between de parties." There were two roads set forth in the plan, en St. Columb-road (now Talbot-road) and the E road, passing over the land of one Samuel Ete. Edward Walker to and from the deft.'s land, and en municating with, and leading to and from, the p land. The bill alleged that the deft. had, in violati the agreement, erected a wall across the Egineral and a fence across the St. Columb-road, on the in of division between his land and Mr. Walker's, 19 16 the plt. and his tenants were deprived of the ne the St. Columb-road where and so far as the se passed over Mr. Walker's land, and were abste deprived of the use of the same as a means of as to the district lying west of the deft.'s lands; that they were deprived of the use of the Elgin-r and in great measure of the benefit of the roads on the deft.'s land. The prayer of the bill was for the specifc pa formance of the agreement of the 10th July 1853, mi for an injunction to restrain the deft. from pernining the obstructions to remain. The V. C. having granted an injunction in the terms of the plt.'s bill, the deft. now appealed. T case before the V. C. is reported ante, p. 213. Greene, Q. C. and Hardy for the plt. The Solicitor-General (Palmer), Bacon, Q. C. and W. G. Millar for the deft. The LORD-CHANCELLOR (without hearing a repr -I think this case is reasonably plain. There ar two questions, the construction of the agreement and the ascertainment of the external objects that answer to the words of description contained in that agre ment. Now, for the construction of the agreen, is necessary for the right understanding of it to be is formed of the relative situation of the parties. The are both owners of considerable portions of land, late brought into general use for the purposes of building The plt. is owner of certain pieces of land which are subtended on the south by a road called the Talb St. Columb-road. The deft. is owner of pieces of land lying on the south side of that road, extending There were two roads traversing the deft.'s estate, at considerably to the west, until you come to te the further extremity of which, where his land ter-boundary of Ledbury-road. He is also the owner of minated, certain existing obs'ructions were continued by the deft., so that the plt., whilst he had the use of the roads over the deft.'s estate, could not pass beyond it. Stuart, V. C. granted an injunction to restrain the deft. from continuing the existing or making any other obstructions at the extremity of his land. On appeal the decision was affirmed. This was an appeal from an order of Stuart, V.C. The question turned upon the construction of a clause contained in a deed dated the 10th July 1853, which was made and executed by and between the narrow strip of land lying on the north side of the Talbot or St. Columb-road, running from the boundary of the Ledbury-road. Besides that he is the owner of a strip of land which runs on the wester side of the Ledbury-road, is bisected by the S Columb-road, and leaves a small portion of land et the northern side of the St. Columb-road and the western side of the Ledbury-road. The deft. was desirous of entering into the speculation of establisking waterworks. The plt. proposed to build a great number of houses on these pieces of land. There wa therefore, an obvious motive to the one and to 14 CHAN.] er. to signify any future roads and ways from time to time existing on the deft.'s estates? Now it is material to observe that in an earlier part of the agreement when reference is made to the plt.'s land as delineated in the plan which shows certain roads, there is an express stipulation that the plt. is not to be confined to that exact mode of plotting out his lands, but that he may make any other roads and ways. And here we find the parties speaking of a large piece of building land, at that time not covered with buildings, which of necessity would become the subject of a great variety of agreements, and therefore ultimately be allotted and parcelled out and divided in a different man The plt. could assist the deft. by binding all tenants to take water from the deft.'s works. The had the opportunity of giving to the plt. great antages in respect of the user of the roads and ys running over the more extensive land of the deft., i which would be obviously of great advantage to the ants of the plt., because in tais particular locality cat advantage would be afforded to the tenants of the plt. they had a ready means of access to the great ways on → one side and on the other; to the Harrow-road on e east, and to the Portobello-road communicating th other light ways on the west. In that state of ings they entered into a new agreement, and this greement to a certain extent has been made the sub-ner from what was then contemplated, so as to give et of doubt by reason of an accidental error with rise to different roads and ways from the roads and ference to the plan to which it refers. There are in ways then in contemplation. I am therefore of opinion oint of fact, in the agreement, distinct references to that these words "roads and ways" ought not in this he plan, and each reference describes the plan dif- agreement to be so limited as to confine the interpretation erently. There is one plan appended to the agree- thereof to the things at that time in esse which answer ent which sufficiently answers the words of descrip- the description. But in order that there may be no union contained in the one reference, but does not suffi- certainty in the determination of the case, I will take iently answer the words of description contained in it in the limited sense, namely, that the substantives, the other. I shall not, however, subject the case to roads and ways, shall be taken as appellatives of the any doubt by dealing with any other plan than the then existing things. And accordingly we now proceed plan which is actually appended to the agreement. to the second question, which is a question of fact, Now, the first thing that arises upon the language of what were the existing things, or were there any exthe agreement is, to ascertain what external thing isting things, entitled to be denominated roads and answers the word "estate" of the deft.? There has ways according to the sense in which those words been an argument somewhat faintly urged that the are used in this agreement? Now, it will be sufficient lands which in that plan appended to the agreement to limit one's attention to what is now the subject of immediately adjoin the plt.'s lands must be considered controversy. I have stated that the plt.'s lands were as the only lands intended to be indicated by that subtended on the south by a through road denominated word. I am not of that opinion. I think the word, the St. Columb-road, or the Talbot-road. It is not the "estate" of the deft., is used in direct opposition matter of controversy that that road existed as a road to another expression in the agreement, "the adjoin- down to the western boundary-that is, the western ing lands," and I take that word" estate," therefore, as line of the Ledbury-road. When it arrived there it not admitting of being properly limited in significa- immediately approached in direct contiguity to certain tion, but that it must extend to all the property of the lands belonging to a gentleman of the name of Walker, deft. in that locality. The next thing we have to and to render the decision of the case intelligible it consider in the construction of the agreement is the becomes necessary to enter into some part of the conquestion whether the important words "roads and tract with Walker, that the argument of the deft. may ways," and that member of the sentence in which be understood and properly appreciated. Mr. Walker, they are found, are to be considered as immediately it appears, had entered into several agreements, which connected with the concluding member of the sentence, in point of execution were contemporaneous with the and limited by that conclusion so as to be reduced to agreement between the plt. and the deft. One of those import only those roads and ways which appear upon agreements was an agreement by Walker to take from the plan appended to the agreement. I am of opinion the deft. that strip of land lying on the western side of that that is not the proper construction of the the Ledbury-road, and on the north-western side of the sentence. I think it is plain that the words "in and Talbot or St. Columb-road, for the purpose of building upon the same already agreed upon and set out in a thereon, and it was a stipulation in that agreement that plan signed between the parties"-I think that those Walker having projected and having laid out two words "agreed upon and set out must be taken as roads, one of which was called the Elgin-road, running connected with and agreeing with the immediate an- through his own land, and another, which was a contecedent substantives, namely, "openings and ways," tinuation of the St. Columb or Talbot-road, and so and not as extended to, or in any manner being con- denominated, it was an important thing for both cordant with, the antecedent expressions "roads and parties that these roads should be extended and conways." I think, therefore, that member of the tinued so as that there should be a continuation of the sentence which is contained in the following words, Talbot-road through part of the land agreed to be "full and free permission to use, at all times, the demised to Walker, and that Walker should make an roads and ways in and through his said estate," is a opening from the eastern termination of the Elginwholly independent member of the sentence, and road, where it ended on his own land, so as to let that I take the subject which is described and re-road run into the Ledbury-road, upon which the piece ferred to by these words as not at all restrained of land contracted to be taken by Walker from the or narrowed in extent by the concluding words of the deft. abutted. It appears that Walker was to have the sentence. If that be so, that brings us to the remain-power of doing these things conditionally on other ing inquiry, which is, what is the external thing that answers the words "roads and ways?" Before, we come to that which is always a question of fact, what external thing answers to words of description contained in an instrument and upon which parol evidence is always admissible, we have to determine whether the words "roads and ways" are used in this agreement for the purpose of referring to and denoting existing roads and ways; or whether they were intended to have a more comprehensive signification-a sort of tractus temporis―attached to them, and that they were meant portions of the agreement being performed, and that was the state of matters in point of contract at the time when the agreement between the plt. and deft. was entered into. Now, the argument on the part of the deft. is of a singular nature. He says: "My grant to you must be regarded as dependent upon the contingency of Walker's agreement being performed," and I have been told that the plt. is to be regarded as a sort of assignee of Walker, and that I am to disregard the direct contract between the plt. and the deft., and to substitute for the plain words of the contract conditional or hypothetical words, making the grant, which is distinctly made by the deft. I cannot be included within the meaning of the ve to the plt., conditional upon the agreement with "roads," as contained in this agreement. Imb Walker being carried into effect. It is quite obvious means of that opinion. I think that if there wa that I can do no such thing. I cannot limit the words description of a private way still answering the of a direct grant from the deft. to the plt. by infusing scription of a road, it is this very contract which dire into them a contingency with a condition of which down that bar and removes that obstruction, and he there is no trace. The plt. had nothing to do with away the right to have it continued, and the es Walker's agreement or Walker's relation with the deft. the agreement has failed in this, that as reads a The plt. receives from the deft. a direct grant of the ways are used without limit, although there maybe. right to use the roads and ways upon his estate, and gate put up in the road to intimate that it is a maio we have only to ascertain whether those words relate to be used at the pleasure of the proprietor, yet a existing or future things, and whether, at the time of proprietor enters into such an unlimited and s the controversy, there were roads and ways in the par- stricted contract, he takes away from himself the ng ticular locus in quo where the obstruction now exists to of continuing that bar as against the grantee, ra answer the description contained in the agreement. makes the road, which was previously a road at a Now, it appears that Walker, in the progress of pleasure, a road which now de jure belongs to t performing the agreement, did open the Elgin-road and grantee. I would take a familiar example, wad made it run into the Ledbury-road; and I have it dis- almost all who are present are aware of. Take t tinctly sworn, and not attempted to be contradicted, case of the gates put up on the Duke of Bedfords except in a manner in which, when it is properly un- property. They are gates which indicate that there's derstood, no contradiction should have been attempted no passage along except at the pleasure of the Duke of to be given-I have it distinctly proved that the con- Bedford, and they are of great value as enhancing is nection between the termination of the Elgin-road, value of the squares and streets in the immedi where it ended upon Walker's land, and the Ledbury- neighbourhood, and if I could suppose the Duke of Be road, was distinctly formed; the base, or site or ford for a consideration granting to any individual te alveolus of the road hollowed out; the hollow filled up unlimited and unrestricted user of the roads upon his with ballast, and the road made traversable and pass-estate, I should have no hesitation in coming to the able by Walker under that agreement, and so it exists conclusion that the roads upon which these bars an to the present day, save as it has been obstructed by erected would be roads coming within the extent of the deft. That is what was done by Walker with re- contract, and within the natural meaning and extent of spect to the Elgin-road. That is the condition in the words of description. I have therefore no heste which the Elgin-road now stands; and with respect to tion on that point in coming to the conclusion, tas several feet of the Elgin-road lying on the eastern ex- although this road, or rather that particular nexus of tremity and forming the embouchure of the road into the road on the land of Walker and the Talbot road whe the Ledbury-road, it is a road through the land of the it joins the Ledbury-road, that being the locus is you, deft. It answers therefore in every respect the and place in controversy, although that partic description of a road through the estate of the deft. junction (I will call it the junction road) was called Well, now we come to the Talbot-road, and the posi-into existence in the manner I have described, and tion of that at the time of the agreement may be thus described. The boundary between the land of the deft. and the land of Walker is stated to have been the parish boundary. Originally it was constituted as a ditch and a hedge. The piece of land lying on the eastern side of that between the termination of the Columb-road where it enters the Ledbury-road, and the commencement of the Columb-road where it runs through the land of Walker, was part of the land of the deft. running from the boundary between his land and Walker's into the Ledbury-road. Now, I have it most distinctly proved in evidence that that portion was also hollowed out, the bed of a road was formed, the materials for making a road were laid down, and though the road was never perfectly completed, yet the road existed as a clearly defined track, framed for the purpose of being traversed, and actually traversed, and so much desired to be traversed that the deft. interfered, and restored a species of boundary in the shape of a bar, and a species of gate, in order to prevent the public generally traversing the road pending the agreement with Walker, and that was continued after the agreement with Walker was terminated. Now, that is the history of the formation of the road, and without inquiring further, I will assume that to be the present condition of the road, and the actual state of these tracks, if you think fit so to call them, at the time the walls were built by the deft. Well, now we come to the only argument that is material to be considered, which was pressed on my attention by Mr. Bacon. He puts the argument in the following way. Let it be conceded to me for the argument, that at the time of the agreement there was a road with a bar across it; that, therefore, was not a public road, nor any other road than a road in favour of those to whom the deft., to whom it belonged, might choose to give permission. Accordingly, the counsel for the deft. contended that a road so circumstanced although originally it was a thing dependent on the |