Plea-That before the committing of the alleged breaches, and after the making of the deed, the London, Brighton and South Coast Railway Company required to take and purchase the ground or paddock under the powers given them by the London, Brighton and South Coast (New Lines) Act, 1862, and for the purposes for which they were by the act empowered to purchase and take the ground or paddock. That the ground or paddock was land which the company were empowered by the act to purchase and take compulsorily for the purposes of the undertaking authorized by the act; and that after the making of the deed, and before the committing of the alleged breaches, the company did, under and according to the powers conferred upon them by the act, and by virtue of the act, compulsorily purchase and take the ground or paddock, and for the completion of the purchase the defendant, by deed, did convey the ground or paddock to the company and their successors, which is the assignment in the declaration mentioned, whereupon and whereby the company under and by virtue of the act became seised in their demesne as of fee of the ground or paddock, and continued so seised until afterwards the company, being so seised, built on the ground or paddock the erections in the declaration mentioned, which were erections reasonably required by them for the purposes of their undertaking authorized by the act, which building by the company is the building complained of in the breaches. And that, except as aforesaid, the defendant did not permit the erections to be built.

Demurrer to the plea, and joinder in demurrer.

Replication-That although reasonable, still it was neither necessary nor compulsory for the railway company to build the station on the land in question.

Demurrer to the replication, and joinder in demurrer.

F. M. White, in support of the demurrer. -The plea is bad. It appears from the record that there was a paddock fronting the premises leased to the plaintiff, and that the defendant covenanted that neither he nor any one to whom he assigned this paddock should erect certain buildings upon it. It is not denied that these buildings

have been erected on the paddock by a railway company, to whom it was assigned by the defendant, but the defendant says that there has been no breach of his covenant, since he was forced to assign the ground to the company in accordance with the powers conferred upon them by their special act. But this is no sufficient excuse. It is necessary that the plea should go further and shew, not merely that the act of parliament enabled the company to take the land, but that it obliged them to erect the buildings upon it. A covenant is repealed by an act of parliament only where the act makes it illegal for the covenantor to perform his covenant.

[LUSH, J.-The breach is, that the defendant permitted buildings to be erected on the paddock. You have to make out that he gave the company permission to build.] In Brewster v. Kitchell (1), where a memorandum was indorsed on the deed granting a rentcharge to the effect that the grantee was to be "paid the rentcharge without any deduction or abatement of taxes, charge or payment out of, for or concerning the rent," and the question was whether the grantor of the rent and his heirs should be obliged to pay the rent without deduction in respect of taxes imposed by parliament in the future, and which it was provided the tenant might deduct from his rent, Holt, C.J. says, "This act can by no means destroy this covenant because, though the tenant has a liberty to deduct, yet the act does not hinder him from paying his rent without it, he does not break the law if he pays his rent without any deduction; and this is the difference when an act of parliament shall or shall not destroy a covenant. If a man covenant to do a thing which is lawful at the time of the making, and an act come afterwards and make the thing covenanted to be done unlawful, such act is a repeal of the covenant; but where a man obliges himself to do a thing which perhaps was not lawful before, and an act makes it lawful, the act does not repeal the covenant." So here, the company are at liberty to build upon the land; but, as it is admitted by the demurrer to the replication, there is no obligation upon them to do so.

(1) 12 Mod. 167.

In Wynn v. the Shropshire Union Railways and Canal Company (2) the company were held to be discharged from their covenant to take a limited quantity of water from a stream by a subsequent act of parliament which extended their powers over this stream, but it was on the ground that the legislature had made it unlawful for them to perform their covenant; and that it was absurd to suppose an action would lie against them for doing what the legislature had said they should be obliged to do. Barker v. Hodgson (3) is another authority to shew that it is only where the performance of the covenant is rendered unlawful that the contract is dissolved; and possibly if the act of parliament had compelled the company to build the station the plaintiff would have had no remedy. If the plea is taken to mean that the covenant is repealed by the statute, the answer is that the operation of the statute is not compulsory, and the defendant, if he had pleased, might have bound the company by a covenant not to build on the ground which they took from him. If it is said that the company are not assigns within the meaning of the act of parliament, this objection is removed by the terms of the Lands Clauses Act, section 75, which require the seller of land to companies to make out a good title to it, and to execute a proper conveyance to the company. So that these companies are in the position of ordinary assignees of real property.

Raymond, in support of the plea.-The proposition of the defendant is simply this: In entering into a restrictive covenant on behalf of himself and his "assigns" he could only have meant persons to whom he should of his own free will assign his property, and not such assignees as the legislature might choose to thrust upon him. The covenant does not contemplate any interference with the land by the legislature.

[COCKBURN, C.J.-The object of the legislature is to give the person interested in the land the real value of his interest. Might not the claimant say, "The real value is so much, for you are taking the land to build upon it, and there will be a breach

(2) 5 Exch. Rep. 420. (3) 3 M. & S. 267.

of the covenant with which I am burdened"? The lessee pays a larger rent because of the covenant. If this covenant is taken into account between the lessor and the company, is it not fair that the difference in the value of the land should be handed over to the lessee?]

The defendant is not a voluntary assignor. His exccution of the conveyance to the company is a mere matter of form, and he could not require the company to bind themselves by restrictive covenants.

[HANNEN, J.-The answer to that is that he would be entitled to all the more compensation.]

In Doe d. Mitchinson v. Carter (4), where a lessee covenanted not to assign, with a power of re-entry on default, and executed a warrant of attorney under which the term was taken in execution, it was held that there was no breach of the covenant. It was argued that the sale of the lease by the sheriff was a hostile act done by operation of law. And Lord Kenyon says, "I adopt the distinction relied on by the defendant's counsel between those acts that the party does voluntarily and those that pass in invitum. Judgments in contemplation of law always pass in invitum, and I see no difference between a judgment that is obtained in consequence of an action resisted and a judgment that is signed under a warrant of attorney, since the latter is merely to shorten the process and to lessen the expense of the proceedings." And Grose, J. refers to Crusoe v. Bugby (5) as an authority that although becoming bankrupt, &c. may be a breach of the covenant not to put away the term, yet it does not amount to an assignment. Doe d. Goodbehere v. Bevan (6) was an ejectment against a lessee for breach of his covenant not to part with his interest. It appeared that he had deposited the lease as a security for money borrowed, and then became bankrupt, and that the lease was sold by direction of the Chancellor to pay the debt. It was held that there was no forfeiture, Lord Ellenborough saying (7), "Here the question is upon the meaning

(4) 8 Term Rep. 57.

(5) 2 W. Black. 766; s. c. 3 Wills. 234.

(6) 3 M. & S. 353.

(7) Page 358.

of the term 'assigns,' whether by that term the proviso was meant to have effect against assigns in law as it would have against assigns of the party. Now the Courts have construed it to mean 'voluntary assigns' as contradistinguished from 'assigns' by operation of law." And Bayley, J. adds, "If 'assigns' mean voluntary assigns, what act is there to make them voluntary?" In the recent case of Slipper v. the Tottenham and Hampstead Junction Railway Company (8), where a railway company, after notice to treat, arranged by private contract the price of the interest of a tenant in lands, who had a covenant in his lease not to assign without the consent of the lessor, the Master of the Rolls held, on the authority of Wadham v. Marlowe (9), that the covenant not to assign was superseded by the Lands Clauses Act, as the lessor could not refuse or assent to the assignment.

[LUSH, J.-There the act of parliament bore directly on the covenant not to assign.]

In that case, as in the present, the material fact was that the company were assignees by operation of law.

F. M. White, in reply.—In the case last cited, the breach was necessarily involved in that which the company were empowered to do. If this had been a covenant to maintain a plantation on the land, it may be admitted that there would be an answer to the action. But the plea is bad for not shewing that it was necessary and inevitable that the company should build on the paddock. If the defendant had foregone his compensation, he might have induced the company to enter into a restrictive

covenant.

Cur. adv. vult.

The judgment of the Court (10) was now (Jan. 20) delivered by

HANNEN, J.-This was an action on a covenant contained in a lease of certain premises, granted by the defendant to the plaintiff in 1840, for a term of eighty-nine years, whereby the defendant covenanted

(8) 36 Law J. Rep. (N.S.) Chanc. 841.

(9) 8 East, 314, n.

(10) Cockburn, C.J., Lush, J., Hannen, J. and Hayes, J.

that "neither he nor his assigns should or would during the term permit to be built any messuage," &c., on a paddock fronting the demised premises. The breaches alleged are, 1, that the defendant during the term permitted a railway station to be built on the paddock; 2, that the defendant assigned the paddock to the London and Brighton Railway Company, who erected the railway station on the paddock. To this declaration the defendant pleaded that after the making of the deed, the railway company required to take the said paddock, under powers given them by act of parliament (1862) for purposes for which they were by the said act empowered to take the same; that the paddock was land which the company were empowered to take compulsorily for the purposes of the undertaking authorized by the act, and that the company, under the powers so conferred, did compulsorily purchase and take the paddock, and that the assignment by the defendant to the company was the assignment in completion. of such compulsory purchase; that the company afterwards built on the paddock the erections complained of, which were erections reasonably required for the purposes of the undertaking authorized by the act, and that, except as aforesaid, the defendant did not permit the said erections to be built. The plaintiff demurred to this plea, and also replied that the erections, though reasonable, were not necessary or compulsory for the company to build. To this replication there was a demurrer. It must be taken on these pleadings that the assignment by the defendant to the railway company was altogether made under the requirements of the act of parliament, and without any stipulation introduced into the conveyance by the vendor or the purchaser which would alter its character as an act done by the defendant in obedience to the command of the legislature. The 75th section of the Lands Clauses Consolidation Act, 1845, is imperative that the owner of lands shall, on the performance of the conditions imposed on the company, when required so to do, duly convey the lands to the promoters, or as they shall direct; and in default thereof, it shall be lawful for the promoters to execute a deedpoll, declaring the fact of such default having been made, and thereupon all the

estate and interest in such land capable of being sold and conveyed (by such owner) shall vest absolutely in the promoters of the undertaking. We think that no such distinction can be drawn between the case of an owner of lands who does that which it is his duty to do, namely, convey to the company, and one who, by refusing to convey, obliges the company to obtain a title to the lands by the execution of a deedpoll. In the one case, as in the other, the transfer of the title is compelled by the legislature, and it cannot be supposed that it was intended that the landowner who acts solely in obedience to the law should be in a worse position than one who refuses compliance. In either case the railway company must be regarded as the assignee of the land, not by the voluntary act of the former owner, but by compulsion of law. The substantial question therefore raised is, whether the defendant is discharged from his covenant by the subsequent act of parliament, which put it out of his power to perform it. We are of opinion that he is so discharged, on the principle expressed in the maxim Lex non cogit ad impossibilia.

We have first to consider what is the covenant which the parties have entered into. There can be no doubt that a man may, by an absolute contract, bind himself to perform things which subsequently become impossible, or to pay damage for their non-performance, and this construction is to be put upon an unqualified undertaking, where the event which causes the impossibility was, or might have been, anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promissor. But where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens. It is on this principle that the act of God is, in some cases, said to excuse the breach of a contract. That is, in fact, an inaccurate expression, because, where it is an answer to a complaint of an alleged breach of contract that the thing done or

left undone was so by the act of God, what is meant is that it was not within the contract; for, as is observed by Maule, J., in Canham v. Barry (11), a man might by apt words bind himself that it shall rain tomorrow or that he will pay damages. This is the explanation of the case put by Lord Coke in 1 Rep. 98: "If a lessee covenants to leave a wood in as good plight as the wood was at the time of the lease, and afterwards the trees are blown down by tempest, he is discharged of his covenant," because it was thought that the covenant was intended to relate only to the tenant's own acts, and not to an event beyond his control, producing effects not in his power to remedy-see Sheppard's Touchstone, 8th edit. 133, 157.

It is on this principle that it has been held that an impossibility arising from an act of the legislature subsequent to the contract discharges the contractor from liability. Again, to quote an observation of Maule, J. in The Mayor of Berwick v. Oswald (12), there is nothing "to prevent parties, if they choose by apt words to express an intention so to do, from binding themselves by a contract as to any future state of the law"; but "people in general must always be considered as contracting with reference to the law as existing at the time of the contract," and the words shewing a contrary intention ought to be pretty clear to rebut that presumption. To hold a man liable by words in a sense affixed to them by legislation subsequent to the contract, is to impose on him a contract he never made. This is the principle of that which was laid down in Brewster v. Kitchell (13) that, "Where H. covenants not to do an act or thing which was lawful to do, and an act of parliament comes after and compels him to do it, the statute repeals the covenant. So, if H. covenants to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it, the covenant is repealed." To apply the foregoing observations to the present case:

(11) 15 Com. B. Rep. 619; s. c. 24 Law J. Rep. (N.S.) C.P. 106.

(12) 3 El. & B. 665; s. c. 23 Law J. Rep. (N.s.) Q.B. (Ex. Ch.) 324.

(13) 1 Salk. 198.

as

The defendant has covenanted that his "assigns" shall not build. The word " signs" is a term of well-known signification, comprehending all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent or act of law Spencer's case (14). The defendant when he contracted used the general word "assigns," knowing that it had a definite meaning, and he was able to foresee and guard against the liabilities which might arise from his contract so interpreted. The legislature by compelling him to part with his land to the railway company, whom he could not bind by any stipulation, as he could an assignee chosen by himself, has created a new kind of assign such as was not in the contemplation of the parties when the contract was entered into. To hold the defendant responsible for the acts of such an assignee, is to make an entirely new contract for the parties. On the other hand, to confine the word "assigns" to those who take by the voluntary act of the assignor would not, as was suggested in argument, limit the operation of the covenant to his immediate grantee, because all those who take from the first assignee do so in consequence of the original voluntary act of the assignor, and it was his own fault that he assigned at all, or that he did not in the original conveyance guard against the acts of subsequent assignees. To exempt him from liability for such acts would be contrary to the intention of the parties to be collected from their words interpreted according to their known ordinary signification. It was indeed conceded on the argument by the plaintiff's counsel, that the defendant would not be liable for all acts of the railway company as he would have been for the acts of any other assign; but it was contended that the defendant was relieved from liability on his covenant as to those acts only which the company was required by the act of parliament to do, and not as to those which the company was merely empowered to do. We do not think that this distinction is well founded. The rule laid down in Brewster v. Kitchell (13) rests upon the ground that it is not reasonable to suppose that the

(14) 5 Co. Rep. 16; s. c. 1 Smith's Lead. Cas. 5th edit. 43.

legislature, while altering the condition of things with reference to which the covenantor contracted, intended that he should remain liable on a covenant which the legislature itself prevented his fulfilling; but the covenantor in this case is equally disabled from preventing the railway company from doing those things which it is empowered to do as those which it is required to do. Why then should there be a difference in the liability of the covenantor with respect to the one and the other? But assuming that the imposing on the defendant by the legislature of assigns whom he could not control would, without more, free him from the engagements which he entered into with reference to assigns whom he could control, it remains necessary to deal with the argument that though the company was empowered to take the lands free from the restrictions upon building, this was only on condition of paying full compensation for what they got, and that it must be supposed that the defendant obtained from the company not only the value of the land as he held it, encumbered with a covenant not to build, but also what was deemed a fair consideration for the right to build. It appears to be assumed in this argument that the difference between the price of the land encumbered with the covenant not to build, and the price of it, freed from that covenant, would be the amount of damages to be paid by the defendant to the plaintiff in the present action. But that is not so. The plaintiff, if entitled to recover at all in this action, would be entitled to the damage he had sustained by the breach of the covenant, even if those damages should exceed the whole value of the land taken. The argument in favour of the plaintiff to be derived from the enactments relating to compensation is no doubt this: The legislature has, in express terms, or by necessary implication from its language, given to persons in the defendant's situation a remedy over against the railway company in respect of acts done by the company: this would here indicate that the legislature did not intend that the defendant should be freed from liability on his covenant, although he was disabled from performing it. But we cannot find in the Railway Acts any express or implied enactment to this effect. It has already been pointed out that